HCCLA ex-president Robb Fickman joins The Houston Justice League:

I know this is hard to believe…so hear me out…

He was driving back from Lake Charles (he wasn’t gambling…he was…um…sight seeing at some of the industrial plants, and relaxing on the lovely beach fronts on the soothing lake), and when he neared the Highlands exit, traffic slowed. He looked to his right on the off ramp and noticed a small car laying upside down on the ramp. The car had obviously just been in a wreck and had flipped over with very serious damage. He pulled to the right into a construction area and got out.  He saw another guy running toward the car. He jumped over the construction barrier onto the off ramp. He saw the other man at the  car down the ramp. When that guy got to the car he looked in Robb’s direction and waived at him frantically.  Robb ran down the ramp to the car. The guy was freaking out and said there is a girl in the car. He had managed to get the door open.

Robb knelt down next to the door and looked in. Shattered glass everywhere, the girl was hanging upside down in the car. She was alert but distraught.  She kept repeating “please get me out of here. I cant get my seat belt off.” Robb asked if she thought she was hurt and she said no.  She was moving trying to reach her seatbelt but couldnt get it. He assured her she would be alright. By then several other people had arrived. Fickman told one of them to call 911. He then asked another one of the men to try to open the other door so they could get to her seat belt. He tried but it would not open.

Robb told her to stay calm and he moved a mat over some of the broken glass. He then slid on his back under her suspended body. He was able to get past her and  reach her seat belt which he undid.  He held his arms up to keep her from falling. As he released her she fell onto his arms. He then told the men outside the car to help him get her out as it was very cramped.  With a little maneuvering they were able to get her out. He gathered her purse, wallet and they moved her away from the vehicle.  He waited  for paramedics and the County to show up.  She was in obvious shock. They got her to drink some water. When the paramedics showed up she was reluctant to go with them. Robb told her she should go just to make sure she was ok.  When he left the paramedics were taking her away. It appeared the seatbelt and the good Lord saved her life. Before she left her boyfriend arrived. He was  appreciative. Robb then admonished him that the next time he heard someone bad mouthing lawyers, he should tell them it was a lawyer that got his girlfriend out of her wreck.

Attaboy, Robb. Sure, your brother directs movies for Disney, parties with Dwayne Johnson, and dates Christine Lakin. But you’ll always be the Fickman boy I’m proudest to know.

(Reporting by T.B. “Todd” Dupont, of Reasonable Doubt fame.)

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Lawyers:

There are some who will tell you, “the disciplinary rules say X, so ethically you have no choice.” That our lawyerly duties trump all others is a fiction thoughtlessly accepted by most lawyers and  eagerly accepted by others who want to avoid the consequences of their actions. They are mistaken for three reasons.

First, you always can choose (from your own frame of reference, and presuming that you have enough awareness to question whether you have a choice and are physically able) to violate any law. Follow the law and avoid its penalty, or violate it and pay the price.
Second, many disciplinary rules are not ethical rules at all. Ethics are principles, and as such don’t change when you cross borders. The DRs, by contrast, vary from state to state—even, for example, in their definition of privileged client information: in Texas anything I learn from any source in the course of representing a client in a criminal case is privileged. I can’t, according to the disciplinary rules, reveal it for the client’s benefit without the client’s permission. In most states (and in civil cases in Texas) what the lawyer learns in the course of representation from anyone but the client is confidential but unprivileged, and can be revealed without the client’s explicit permission. (Are lawyers everywhere else “unethical” for following their rules instead of Texas’s?)

Third, to the extent that they provide principled answers to actual ethical questions, disciplinary rules are not an alternative to human ethics, but an explication of how those ethics apply in the context of lawyering. In general, it’s good to do the job you’re hired to do; in the lawyering context, it’s good not to accept employment beyond your competence. In general, it’s good to let people own their own lives; it’s good to abide by the client’s decisions concerning the objectives of representation. It’s good not to lie or cheat or steal; it’s good not to lie to or steal from or cheat your clients. In general, it’s good to keep the confidences of people who trust you to; in the lawyering context, this is of very high value because confidentiality encourages confidences, which are essential to competent representation not only in the individual case but also in the system at large.

Permit me to illustrate your ability to choose to violate the disciplinary rules:

Would you preserve inviolate your client’s secrets if by revealing them (and only by revealing them) you could save your family from otherwise-certain annihilation? No? (If your answer is “yes”, you’re a liar or a pendejo, which is Mexican for “schmuck”.) We’re just haggling over the price.

Just as you didn’t give up your right to keep your family safe when you became a lawyer, neither did you sell your soul or give up your right to live by your conscience. The deal you made when you became a lawyer was not that you would blindly follow the rules come what may, but that you would follow the rules or risk the consequences. The worst the State Bar can to you for violating the rules is disbar you. I can assure you that there are plenty of fates worse than that.

There’s an oath, too, and as one Jacksonville lawyer pointed out in a comment to my earlier post, some lawyers swear to “maintain the confidence and preserve the secrets of their clients.” Christianity (Matthew 5:33-37) and Islam (Surah 18 Verse 23) both discourage the swearing of oaths. The latter quite reasonably requires that any promise to do something include the caveat, “insh’allah” or “God willing”—explicit recognition that when we make a promise we can’t anticipate all of the possible obstacles to keeping it. Non-muslims often append instead the words, “so help me God”, to much the same effect. When you’re a 24-year-old new lawyer, still wet behind the ears, there’s no way for you to predict the situations that will test your word. Better that you shouldn’t swear to more than you have to but, having done so, sometimes it is more unethical to keep an oath than to break it.

Aside from your family’s survival and your ethics, what could conceivably trump the DRs? How about the Constitution? If there is a conflict between the DRs (for example, “don’t talk to people represented by counsel”) and the Constitution (for example, the Sixth Amendment), it is in no way clear that the DRs trump.

There is no disciplinary committee enforcing the Sixth Amendment; the courts should enforce it, but they do a crappy job at best. Does the fact that you’re more likely to be punished for violating the DRs than for violating the Sixth Amendment mean the former take precedence? Of course not. Any good reason that the DRs, adopted by the State Bar, would be ascendant over the U.S. Constitution? Nope.

The DRs provide guidance for many of the situations we encounter in the practice of law—mostly the easy situations—but they don’t cover everything. What happens when the rules conflict with what is ineluctably right?

I have no qualms about saying that at times it is appropriate for a lawyer to violate the DRs. In fact, when the rules are wrong for a given situation, lawyers have a duty—familial, ethical, constitutional, whatever—to violate them (and should be willing to pay the penalty: Bennett’s Law of Rules). This is not a decision to be made lightly. The rules are well suited to their purpose—making the easy decisions easier. They are less well suited to making the difficult decisions easy. Deciding whether to violate a rule requires an understanding not only of the text of the rule, but also of its rationale and of the reverberating consequences of violating the rule. If you’re not prepared to pay the full penalty for violating the DRs, then you’re not violating them righteously.

You may never encounter a situation in which violating the DRs is justified. Perhaps it’s even likely you will never encounter such a situation. If so, then why shouldn’t you uncritically follow the DRs? Why bother doing any of the ethical heavy lifting necessary to make sure that the DR answer is the right answer?

Which would you rather be: the cog in the machine, doing the right thing because the rules compel it; or an ethical human being, doing the right thing because you’ve considered all of the options, and it’s the right thing? For that matter, would you rather be the the cog doing the wrong thing because the rules compel it, or the human being doing the wrong thing because you’ve considered all of the options, and in your judgment it’s the right thing?

I would, in all cases, prefer my decision to be based on my own judgment, which I trust, rather than the DRs. If I’m going to be right, I want it to be because I know I’m right, rather than because the State Bar (which does not necessarily have individuals’ best interests at heart) says I’m right.

It might, I will grant, be better to be the cog doing the right thing than the human being doing the wrong thing. I don’t think that’s a likely outcome. A rigid system can never have the wisdom of a human being. This commenter argues that some people might feel themselves unable to make a tough ethical decision independently, and suggests that we should praise those who recognize their ethical shortcomings and cling to the DRs.

Ethics are like any other faculty: if you don’t exercise them, they won’t be available to you when you need them. In law, as in life, there are more fact patterns that are not covered by the explicit rules than fact patterns that are. Delegate your ethical decisions to the legislature (or the Supreme Court, or the State Bar, or anyone other than you), and your ethics will wither.

The critical thinking skills required to know when the rules are right and when they are the same required to help a client decide whether to plead guilty, whether to go to judge or jury, whether to testify or to decide whether to present a defense, whether to seek a lesser-included offense, how hard to cross-examine the child witness. In light of that, in lieu of praise for those who don’t believe they have the ethical firepower to make tough decisions without instruction from the State Bar, I have a suggestion:

Whatever you do, stay out of the courtroom.

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Text added by Congress is indicated by strikethrough; text removed by Congress is italicized. Information is from Thomas Jefferson’s Autobiography.

A Declaration by the Representatives of the United States of America, in General Congress assembled.

   When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate & equal station to which the laws of nature & of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

   We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with inherent and certain inalienable rights; that among these are life, liberty, & the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying its foundation on such principles, & organizing its powers in such form, as to them shall seem most likely to effect their safety & happiness. Prudence, indeed, will dictate that governments long established should not be changed for light & transient causes; & accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses & usurpations, begun at a distinguished period and pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, & to provide new guards for their future security. Such has been the patient sufferance of these colonies; & such is now the necessity which constrains them to expunge alter their former systems of government. The history of the present king of Great Britain is a history of unremitting repeated injuries & usurpations, among which appears no solitary fact to contradict the uniform tenor of the rest, but all have all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world for the truth of which we pledge a faith yet unsullied by falsehood.

   He has refused his assent to laws the most wholesome & necessary for the public good.

   He has forbidden his governors to pass laws of immediate & pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.

   He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, & formidable to tyrants only.

   He has called together legislative bodies at places unusual, uncomfortable, & distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

   He has dissolved representative houses repeatedly & continually for opposing with manly firmness his invasions on the rights of the people.

   He has refused for a long time after such dissolutions to cause others to be elected, whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise, the state remaining, in the meantime, exposed to all the dangers of invasion from without & convulsions within.

   He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners, refusing to pass others to encourage their migrations hither, & raising the conditions of new appropriations of lands.

   He has suffered obstructed the administration of justice totally to cease in some of these states by refusing his assent to laws for establishing judiciary powers.

   He has made our judges dependent on his will alone for the tenure of their offices, & the amount & payment of their salaries.

   He has erected a multitude of new offices, by a self-assumed power & sent hither swarms of new officers to harass our people & eat out their substance.

   He has kept among us in times of peace standing armies and ships of war without the consent of our legislatures.

   He has affected to render the military independent of, & superior to, the civil power.

   He has combined with others to subject us to a jurisdiction foreign to our constitutions & unacknowledged by our laws giving his assent to their acts of pretended legislation for quartering large bodies of armed troops among us; for protecting them by a mock trial from punishment for any murders which they should commit on the inhabitants of these states; for cutting off our trade with all parts of the world, for imposing taxes on us without our consent; for depriving us in many cases of the benefits of trial by jury; for transporting us beyond seas to be tried for pretended offences; for abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, & enlarging its boundaries, so as to render it at once an example & fit instrument for introducing the same absolute rule into these states colonies; for taking away our charters, abolishing our most valuable laws, & altering fundamentally the forms of our governments; for suspending our own legislatures, & declaring themselves invested with power to legislate for us in all cases whatsoever.

   He has abdicated government here withdrawing his governors, & declaring us out of his allegiance & protection by declaring us out of his protection, & waging war against us.

   He has plundered our seas, ravaged our coasts, burnt our towns, & destroyed the lives of our people.

   He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation & tyranny already begun with circumstances of cruelty & perfidy scarcely paralleled in the most barbarous ages, & totally unworthy the head of a civilized nation.

   He has constrained our fellow citizens taken captive on the high seas, to bear arms against their country, to become the executioners of their friends & brethren, or to fall themselves by their hands.

   He has excited domestic insurrection among us, & has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes & conditions of existence.

   He has incited treasonable insurrections of our fellow citizens, with the allurements of forfeiture & confiscation of our property.

   He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivatng & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of INFIDEL powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce. & that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, & to purchase that liberty of which he has deprived them, by murdering the people for whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people, with crimes which he urges them to commit against the LIVES of another.

   In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injuries.

   A prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of a free people who mean to be free. Future ages will scarcely believe that the hardiness of one man adventured, within the short compass of twelve years only, to lay a foundation so broad & so undisguised for tyranny over a people fostered & fixed in principles of freedom.

   Nor have we been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend a an unwarrantable jurisdiction over these our states us. We have reminded them of the circumstances of our emigration & settlement here, no one of which could warrant so strange a pretension: that these were effected at the expense of our own blood & treasure, unassisted by the wealth or the strength of Great Britain: that in constituting indeed our several forms of government, we had adopted one common king, thereby laying a foundation for perpetual league & amity with them: but that submission to their parliament was no part of our constitution, nor ever in idea, if history have may be credited: and, we have appealed to & their native justice & magnanimity as well as to and we have conjured them by the ties of our common kindred to disavow these usurpations which were likely to would inevitably interrupt our connection & correspondence. They too have been deaf to the voice of justice & of consanguinity, and when occasions have been given them, by the regular course of their laws, of removing from their councils the disturbers of our harmony, they have, by their free election, reestablished them in power. At this very time too, they are permitting their chief magistrate to send over not only soldiers of our common blood, but Scotch & foreign mercenaries to invade & destroy us. These facts have given the last stab to agonizing affection, & manly spirit bids us to renounce forever these unfeeling brethren. We must endeavor to forget our former love for them, & hold them as we hold the rest of mankind, enemies in war, in peace friends. We might have been a free & a great people together; but a communication of grandeur & of freedom, it seems, is below their dignity. Be it so, since they will have it. The road to happiness & to glory is open to us, too. We will tread it apart from them, and We must therefore acquiesce in the necessity which denounces our eternal separation and hold them as we hold the rest of mankind, enemies in war, in peace friends!

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When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

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Recall the story of the two Chicago PDs whose client, Wilson, confessed to them that he had murdered a security guard, and that Logan, who was doing life for the murder, had not. The two lawyers, Jamie Kunz and Dale Coventry, waited till Wilson died in prison, 25 years later, to reveal the truth and set Logan free. They spoke in May at the ABA’s 35th National Conference on Professional Responsibility in Chicago.

They didn’t have a choice? This is an outright lie. Kunz had a choice; any time we are self-aware enough to say, “I don’t have a choice”, we have a choice: obey the law, or risk its sanction. Instead of sleeping for 25 years with Wilson’s confession under his pillow (I wonder: how did he sleep?), he could have come clean and faced the music, however unpleasant.

Sure, the legal answer to the question Kunz faced was cut-and-dried. But there’s a difference between the law (disciplinary rules are law) and ethics. When the law and ethics clash, a person has a difficult decision to make: do what’s right, or do what’s legal? Both paths necessarily have costs.

Kunz’s ethical position was not nearly as clear as his legal position. It’s good to keep an innocent man from spending his life in prison, and it’s good to maintain a client’s confidences. Each has very high value. Either choice should weigh on a lawyer’s conscience. Ethical decisions are often like this; the right choice is the one that weighs less.

Ethics are navigational tools for rough seas. The whole point of having ethics is that with them we make the correct choices when times are most difficult. If we avoid or surrender the tough decisions, we don’t need ethics.

To abdicate an ethical decision in favor of a legalistic proscription is not an ethical act. In wishing for rules to relieve him of the responsibility for difficult decisions, Kunz displays cowardice worthy of a functionary of the Third Reich: Kunz was just following orders; he was glad to have the orders to follow so that he didn’t have to have ethics and didn’t have to count the cost; and, moreover, he wouldn’t have it any other way.

Maybe Kunz’s cowardice is not to blame for Logan spending 25 more years in prison than he should have. Maybe, if Kunz had consulted his own ethics, the result would have been the same. But the cost of the decision that he made was that Logan spent the better part of his life in a cell. Because of what Kunz and Coventry did, every time they were having dinner with their families or playing with their children Mr. Logan was locked in a box for something that they knew he had not done.

Some may say that I’m being unduly hard on Messrs. Kunz and Coventry. I say not. This weekend we celebrate the actions of a gang including merchants, farmers, doctors, and, not least among them, lawyers, pledging not only their lives and their fortunes, but also their sacred honor to doing what was right, in violation of law and defiance of government. Mr. Kunz and Mr. Coventry, eager to substitute the dictates of the law for those of their own hearts, sold their honor cheaply. Mark the contrast.

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I got a letter from a Texas prison last week: contraband had been confiscated from an inmate (not a client) after arriving in an envelope with my return address on it. The contraband was described as “two UCC Packets.”

After dashing off a cross letter to the warden about people using my return address to send contraband to Texas prisons, I investigated why “UCC Packets” might be classified contraband. It seems that some prisoners go around filing vexatious liens against prison guards under the UCC. To try to stop the practice, Texas prisons have proscribed the UCC.

I have no philosophical objection to adding the UCC to the new Index Librorum Prohibitorum. Its arcane powers are so great that they should be available only to the chosen few (by which I mean members of the British Accreditation Registry (B.A.R.)).

As inmates’ loved ones on the outside can get their hands on the One Law to Rule them All (by which I mean the UCC), though, it seems counterproductive to try to keep it out of the hands of inmates. Including it in the same category as drugs, or obscenity, or cell phones only serves to emphasize its dominion. If we want to—and I believe we do want to—maintain the B.A.R.’s official position, the pretense that the Uniform Commercial Code is not the supreme law of the land, trumping statutes, caselaw, treaties and even the Constitution, then the better course is to let the inmates have their UCCs. If we keep pretending, some of them will believe that the UCC is just a statute governing commercial transactions. (Some of them won’t, but we should be able to trust the courts to dispose of their claims in line with the B.A.R.’s official position.)

Nobody asked me how to protect the illusion that the UCC is not all-powerful, and I’m not the one making policy for the B.A.R. But I feel strongly that this treatment of the UCC is counterproductive, and I shall say so in my next quarterly report to the Queen.

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Defending People reader “Ryan”, writing at Plain Error, the official blog of the Innocence Project of Florida, responds to my “Law and Justice Explained.” post:

As someone with the status just above armchair philosopher (disclosure: I will be attending graduate school for a PhD in philosophy in the fall), I have a few words on that one.

The idea that “justice” has no relationship to the law – and the poster is very clear that they believe this – is, I think, obviously mistaken. This is what they say:

1) Justice is a topic that exists in philosophy.

2) Law is what a bunch of mostly long-dead politicians thought would get them elected.

3) Never the twain shall meet.

Here are the missing premises.

1) Justice is a topic that exists in philosophy.

2) The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.

3) A voter’s support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.

4) The more a politician’s ostensible definition of justice falls in line with a voter’s the more likely that voter is to support that politician, other things being equal.

5) Politicians act in ways they believe will get them elected.

6) Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.

7) Laws come to resemble the public conception of what justice is.

Finally, which should be a premise between my (2) and (3) above: as much as philosophers like to think they’ve got it figured out – though they are often quick to point out that they know nothing – you might be surprised at how much philosophical conceptions of justice are either informed by or in line with public conceptions.

It’s been a long time since the last philosophy course I will confess to having taken. The whole of the intellectual residue from my formal philosophical training is the ability to distinguish Khan from Kant:

(though I still tend to forget which of them was responsible for describing the categorical imperative, and which for stealing the Genesis Device).

As a philosopher, I don’t even rate an armchair. To the extent that I commit philosophy, it’s philosophy of the forensic “what eternal truth, applied to this case, will keep a jury from eviscerating my client?” or the practical “how do I understand what I perceive to be grave injustices of the criminal law without sinking into despair?” rather than the academic sort.

I hesitate to ridicule earnest readers of Defending People . . . but only briefly.

Does “I will be attending graduate school for a PhD in philosophy in the fall” mean anything more than, “I’ve got a BA in some liberal arts field, possibly even philosophy”? Is a degree in philosophy necessary to discuss philosophy? If so, what does that make Plato? Aristotle? Socrates?

Assuming that “I will be attending graduate school for a PhD in philosophy in the fall” doesn’t specially qualify one as an authority on the relationship between justice and the criminal justice system, Ryan’s position will have to stand or fall on its own merits. Or lack thereof.

I’ll take his “missing premises” sequentially, internet-style. Let’s look at them practically, considering our experience in the real world:

The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.

Most of the public have had neither the leisure nor the inclination to give a whole lot of thought to what justice is, beyond a dictionary definition that is useless in court. The public conception of justice tends to be informed by the hysteria of exaggerated fears, which are fed by the special interests (which I discuss briefly below) that benefit from harsher punishment. When you entrust justice to the majority, you get mob justice.

If justice exists, it’s individualized. What does someone deserve who commits murder? Some people who commit murder deserve to be commended, and some deserve to be hanged. Any one answer to the question of what punishment is merited for a particular crime is going to be wrong more often than it’s right. To the extent that the public has formed concepts of justice for themselves, they are coarse—someone who does X deserves Y—and don’t account for the subtleties of human behavior. This is meataxe justice.

Philosophical conceptions of justice are either informed by or in line with public conceptions. Justice is treating others fairly. Justice is giving each person their due. Justice is having what one deserves. It is for philosophers to unpack somewhat vague notions like these, but they certainly start with premises everyday people are likely to believe, and oftentimes end up not very far away.

So justice is having what one deserves? Seriously, that’s the best you can do, Ryan? This is the dictionary definition of the word “justice”, which says nothing about what justice comprises, and is entirely useless in court. What does one deserve? What does the guy who committed murder deserve? How deeply must we delve into his background in making that decision? What mitigates and what aggravates? Who deserves the noose, and who the medal? Clarence Darrow believed that there was no way we mortals could possibly have enough information to answer these questions, and that the best we can do is cling to charity and understanding and mercy.

If the best philosophers can do after 2,600 years of philosophizing is “justice is treating others fairly”, then God help us if we’re going to leave it to the academic philosophers to “unpack” these “somewhat vague notions” and tell us what justice is.

A voter’s support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.

Maybe. The hide-the-ball word here is the first “belief”. Unspoken is the additional premise that voters correctly perceive politicians’ beliefs. This falls in the the realm of psychology but, as a practical matter, some politicians get elected because of their name or position on the ballot or because of what they say their beliefs are (family values, anyone?), rather than what the politicians will actually do once elected.

The more a politician’s ostensible definition of justice falls in line with a voter’s the more likely that voter is to support that politician, other things being equal.

Here the weasel words are “ostensible” and “other things being equal.” Does a politician’s ostensible definition of justice necessarily match his true definition? Does a definition tell us anything? Politicians’ advertising budgets being equal? Voter awareness being equal?

Politicians act in ways they believe will get them elected.

That, at least, is inarguable. Politicians will pretend to be whatever they think they need to pretend to be to get elected, and will pander to whomever they believe they need to pander to to get elected. Here’s a major hole in any “law = justice” argument: even if the voters gave much thought to the questions of justice, the influence of special interest and big money groups on elections is so great that politicians effect the ethics of MADD or the prison-industrial complex rather than the voters.

Since the special interest and big money groups are spending money to influence public opinion at the same time they are spending money to influence politicians’ votes, it might appear that politicians’ votes are following public opinion, rather than everything being led around by the PR people’s highly advanced manipulations.

Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.

If, to turn a buck, I mimic what I believe is the public conception of a bird, am I any closer to taking flight?

Laws come to resemble the public conception of what justice is.

This is a non sequitur. Even if each of the previous principles were correct, the most that could be said is that laws come to resemble what politicians believe is the public conception of justice that will give them the best chance of being reelected.

Smilin’ Jack’s proposition, of which I approved in my last post on the subject, was that there’s no connection between law and justice. By describing the connection he sees—law is politicians’ mimicry of their understanding of the crude beliefs of the public, enacted for the purpose of getting the politicians reelected—Ryan unintentionally makes the same point.

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I just stumbled upon this, in comments to a long-ago Ann Althouse post:

One of the most annoying things about lawyers is the way they casually conflate “law” with “justice.” To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy…except that astrologers don’t have guns.

Perfect.

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At Illinois and Missouri lawyer Evan Schaeffer’s Trial Practice Tips Weblog, Evan has a link to an Amazon list of 16 Books to Read if You Want to Become a Better Trial Lawyer by Dallas Government lawyer Shane Read. Shane’s list includes Gerry Spence’s How to Argue and Win Every Time, Posner’s How Judges Think, and Read’s own Winning at Trial, as well as 14 other books from which people might try to learn skills and the The New Yorker Book of Lawyer Cartoons.

Trial lawyering (by which I mean criminal defense trial lawyering; I know very little about civil litigation, which apparently involves something called a “deposition”) is a creative endeavor. Skills are important, of course—before we can improvise, we must have technique to burn—but trying to learn how to try cases from a book is like trying to learn how to play jazz from a book. The way to learn trial skills is to watch, listen, and most importantly do.

So I am not one who thinks that reading about trial skills—even reading transcripts of the best trial lawyers at work—is an effective way of getting to be a better criminal defense lawyer. Regular readers should not be surprised to learn that my becoming a better criminal defense trial lawyer reading list begins not with skills but with philosophy.

• The Unfettered Mind: Writings from a Zen Master to a Master Swordsman
• The Book of Five Rings
• Being Peace
• Tao Te Ching (Mitchell Trans.) (Criminal defense lawyers keep rediscovering the Art of War; to my mind they would better understand it if they started with Lao Tse first.)

Trial is improvisational storytelling. Here are three books on improvisational theatre that will open your mind to ways to be a better trial lawyer:

• Improvisation and the Theatre
• Impro for Storytellers
• Free Play: Improvisation in Life and Art

Here’s a book on theatre, specifically:

• Sanford Meisner on Acting

Here’s a book on the broad strokes of storytelling (how to put together a compelling story):

• The Writer’s Journey: Mythic Structure for Writers

I recommend three other books on skills, but they aren’t exactly law books:

• The Game: Penetrating the Secret Society of Pickup Artists
• My Voice Will Go With You: The Teaching Tales of Milton H. Erickson, M.D.
• Frogs into Princes: Neuro Linguistic Programming

Not fitting into any of those categories, but helping criminal defense lawyers better understand how they deal with the high-stakes short-fuse world of trial:

• Brain Rules
• Deep Survival: Who Lives, Who Dies, and Why

Finally, I will throw in one legal skills book, for those who think that lawyers should read lawyer books:

• Jury Argument in Criminal Cases: A Trial Lawyer’s Guide (Second Edition), by Ray Moses of South Texas College of Law, will give you 5500 sample arguments to incorporate into your next jury trial.

Enjoy.

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A few rules from growing up Bennett:

• Never lose altitude unnecessarily.
• Slow, slow. Look, Look.
• Never pass up a chance to relieve yourself.
• Don’t let too much small stuff pile up (this is the companion rule to the more widely known “Don’t sweat the small stuff” and “It’s all small stuff”).
• There’s always a hair in the food.

This last rule is crucial to a correct understanding of both life and jury selection.

A hair in the food is disgusting, right? Eating someone else’s hair never killed anyone but, still, not eating someone else’s hair is—as a general rule—better than eating it. When you’re eating at a restaurant and you find a hair in your food, if you didn’t already know that there’s always a hair in the food you might get upset and angry.

Once you know that there’s always a hair in the food, though, you celebrate when you happen to find it. (You also don’t complain: if you find a hair in a dish and send the dish back, you’re guaranteeing yourself a second hair, and you might not be so lucky as to find it the second time.)

Life is like that too. When you discover an unpleasant secret, you can be unhappy about it, or you can be happy that you discovered it (”Fantastic! If I hadn’t known that . . .”).

So it is with jury selection: there’s always a hair in the food. Every juror has at least one “bad” answer—one that would, if every juror shared it, torpedo your case—inside her. You can have various objectives in jury selection—build a group, educate the jury, have fun—but whatever your other goals, the more of these hairs you discover, the more successful the jury selection.

I watched a lawyer picking a jury once freak out at a “bad” answer that one potential juror gave her. He had a different worldview than she did, and she raked the poor guy over the coals. It didn’t help that he was elderly and black and she was young and white, but what really hurt her case was that her treatment of him was unfair. He had earned that worldview, and anyone who wasn’t a sheltered child of privilege knew it.

She hadn’t gone into jury selection accepting the fact that she was going to find bad answers, much less looking forward to doing so, still less making it her mission to do so, and she wound up with a jury that didn’t give her any more bad answers, instead carrying them into the jury room, where they quickly ruled against her (and, by extension, her client, the government).

I’ll talk later about what to make out of all those hairs you find. Until then, just remember: the fewer hairs you find in jury selection, the more you’re eating.

Digest This!

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