Apparently there’s a conference going on right now where lawyers are talking about using the internet to get clients. Some think that’s the most awesomest thing ever, some think it’s ill-advised. As someone who has, in fact, gotten clients from the ether, I figured I’d share a little anecdotal evidence about what works and what doesn’t.

I have a solid internet presence — got a website for the firm, my own blog, a separate website where I do a law-related comic, I created and now mod one of the oldest lawyer groups on LinkedIn, I tweet and facebook and reddit and I even have a tumblr. And of course I’m listed on sites like Avvo whether I want to be or not. There’s more than that, of course, but this is enough to be getting on with.

So let’s see how each of these things stacks up, when it comes to getting clients.

1) First, ye olde website. I made it myself (I do all my own coding). It’s got lovely SEO, it’s easy to navigate, and it looks clean. You can reach out to me from any page to ask a question or seek help. The last client I got from it was back in 2007, I think.

Which is not surprising. Law firm websites don’t work like Yellow Pages ads — they’re not there so much to attract potential clients who might not have heard of you, as they’re there to reassure existing clients that they’ve got the right person on their side. (Actually, that’s not quite accurate — potential clients who found out about me from other sources go here to check me out before calling.) As with any law firm website, the pages with the most views are those about the lawyer and those with contact info. The website’s purpose is not to attract clients, but to give them information. My website does its job very well. And it brings in zero clients.

2) Next, the blog. It has a decent audience, though not huge. I post when I feel like it and have time, which can be three times a week or once a month. I love to write, and I love what I write about. Usually, I post when I think there’s something that needs ‘splaining, and I feel like I’ve got something to contribute. Despite the fact that I post when I get around to it, the blog has a steady stream of about 6,000 unique readers each month (ignoring the spikes that happen when Reddit or Slashdot find me). It is not a huge source of business. Still, I do get the occasional client from the blog.

In fact, I’ve gotten some high-profile clients simply because they liked my blog. They come to me because they’ve read my thoughts, and they like how I think. We’re simpatico. We’re on the same page. It’s like they already know me.

They don’t come because of SEO. In fact, my blog is awful for SEO. I don’t repeat ad nauseam that I am a New York City Criminal Defense Lawyer. I don’t seed my posts with keywords. I don’t post all the time. I host my blog on (gasp) the same domain as my website. I don’t do any of the stuff SEO marketers talk about. Because I’m not doing it for the SEO, and I never have.

I write for me. I don’t write for my audience. I don’t write to attract clients. And apparently, that’s the thing that attracts some clients.

Not many, but enough good ones that I can’t ignore it.

ASIDE: What do I mean by a “good” client? Very simple: someone who understands the severity of their situation, is willing to invest in their defense, and who doesn’t obstruct that defense. “Good” clients are bloody rare on the internet.

Most people who come to you from the internet are quite the opposite. If you’re a private lawyer, you want to avoid a lot of these potential clients, because they’re going to be more trouble than they’re worth. More on them later.

3) The webcomic. Boy howdy, does it have traffic! A couple hundred thousand pageviews per month. But it doesn’t generate clients. And it’s not meant to. It started out as an offshoot of my blog, and evolved into its own separate existence. The focus there is on education, explaining some fairly complex legal concepts as simply as I can, without resorting to caselaw or statutes. It’s not about me, and I don’t talk about myself there. Its readers come for the ideas, not because they’re looking for a lawyer. A perfect example  that lots of pageviews does not translate into business.

Great SEO, fantastic numbers, lots of eyes. Zero clients.

4) As for social media, you can’t honestly expect to get clients because you’re on Twitter, Facebook, LinkedIn, etc., can you? Social media is about being social, not business. I love it, and I’ve met some really cool people online. I have long-time friends I first knew only in chatrooms and message boards. I’ve become friends with lawyers I first only knew online. I get to converse with awesome people whom, because of geography, I may never meet. But none of these people are potential clients (at least, I hope not). I have never gotten a call from a potential client who found me on social media.

The lesson so far is simple: A strong online presence does not generate good clients. At least for me, anyway.

So now let’s turn to

5) Avvo and its like. These kinds of things do generate phone calls, but rarely – rarely — from clients you’d want. For whatever reason, the calls and emails from these kinds of sites tend to be from people who are unwilling to pay what their defense is going to cost, or who are more than usually deceitful, or who are looking for their third lawyer after being dumped by the first two, or who are looking for their fourth lawyer after dumping their first three, or who are suffering from schizophrenic delusions, or who insist on free legal advice, or who otherwise want something for nothing, or… well, you get the picture. These are the “bad” clients from the internet. You don’t want them. Your job is stressful enough without them, they demand far more of your time and resources than they should — time and resources you owe to your other clients, and they are never good for your bottom line if you care about such things.

Yes, it generates a number of calls and emails. Almost none of which a sane lawyer would want to take. Yes, there have been two or three over the years who really were serious about their case and helpful to their defense and a pleasure to defend — but these were people who found me by chance. A statistically insignificant number.

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 But where do my clients come from, then? I do get some from the internet, but hardly enough to keep the lights on.

6) Referrals. The clients you’ll want tend to find you, not by chancing upon you online, but because someone they trust recommended you to them. The vast majority of my clients call me because someone gave them my name.

Some referrals come from past clients who liked what I did. This kind of thing will vary depending on your practice — few of my clients are the kind of people who tend to get arrested, so they tend not to know many other people in need of criminal defense. But some do, and you can’t do better than a referral from a happy former client. (Also, due to the general nature of my clientele, I don’t get a whole lot of repeat business.)

Most referrals come from other lawyers. Seriously. White-collar cases come from friends at big firms, who represent the corporation and need someone to represent an exec or manager. Street-crime cases and civil cases come from people asking lawyers they know “who would you recommend.”

These referrals do not come from lawyers you met on the internet. I don’t believe I’ve ever gotten a case from a lawyer I didn’t interact with in real life. The best are from lawyers who have worked with me — represented a codefendant of mine, or handled the civil or tax side of a matter, or even who I helped out “of counsel” while starting out.

If you’re just starting out, I cannot recommend that enough: Go find lawyers who do what you want to do, and offer your services. They’ll pay you a cut rate, bill you out for a profit, and give you A) EXPERIENCE, B) MONEY, C) REFERRALS IF YOU DO A GOOD JOB, or D) ALL OF THE ABOVE. Seriously, if you’re a new lawyer, get off the computer and go knock on a working lawyer’s door. Don’t ask for a job. Ask if you can help out.

Or rather, don’t knock on their door. They’re probably busy. Meet them in a social situation — go to bar events. Go to lawyer events. And don’t be a wallflower — meet people. Don’t talk about yourself — you’re not that interesting — just chat about whatever. Some people will have things in common with you. You’ll make friends.

And your friends will be your greatest source of referrals.

And referrals are going to be your best source of clients.

So bottom line: Clients don’t come from the internet. Clients come from friends. Get off your computer and go make some friends.

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

Everyone knows that drunk drivers cause deadly car accidents. This is because alcohol impairs one’s ability to drive safely. So it is against the law to drive under the influence of alcohol.

Everyone knows that texting while driving causes deadly car accidents. This is because texting distracts your attention from driving safely. So it is against the law to text while driving.

Everyone knows that speeding causes deadly car accidents. This is because going faster than conditions and one’s ability permit make you unsafe. So it is against the law to speed.

And now West Virginia is looking to outlaw driving while wearing Google Glass. Because presumably having the internet in your heads-up display would distract your attention from driving safely.

Of course, these laws are all trying to prevent people from driving unsafely. So why not, instead of a whole jumble of laws dealing with specific causes of unsafe driving (and having to be written to deal with new, unforeseen causes), why not have a single law punishing… you know… unsafe driving?

Because these particular causes of unsafe driving are worse than any other? If you say so. But even then, they could just be grounds for enhanced penalties for violating the basic law. No need for separate laws.

The actual reason is that “unsafe driving” is a very subjective concept. It’s really an “I know it when I see it” kind of thing, not readily reduced to formulas. Different people have different abilities, physiologies, training, etc., so one person could drive safely with distractions/speeds/alcohol intake that would make another person a deadly menace. If all you’ve got is a cop who can testify that “this person was driving unsafely because of X Y Z,” when it’s not necessarily so that X Y or Z equal “dangerous, then you’re not going to get a lot of convictions.

And so we draw a line. Forget individual variations — as a matter of law, if you do X, Y or Z while driving, you are automatically a menace, and that’s that. The police officer doesn’t have to make a judgment call about whether you were actually unsafe. All he has to do is determine whether you did X Y or Z.  It’s so much easier to prove that you had crossed the line, than to prove that you were actually being unsafe.

Of course, this is overbroad and unjust. Because where we draw the line is arbitrary. Someone driving 70 is no more dangerous than someone going the limit of 65, but that’s where we drew the line.

Where we draw the line depends. For speeding, it’s sort of a lowest-common-denominator kind of thing: We pick a speed that, for this road, most drivers should be able to manage safely. And by “most drivers” we mean “poor drivers.” Because as a society we’ve decided that we’d rather make it easier to get a license, and we’re willing to accept a certain number of traffic fatalities per year in exchange for letting more people drive. So sure, there are plenty of people who could manage it safely at a higher speed, but they’re going to have to obey the same line drawn for everyone else.

For alcohol, it’s more a lobbying kind of thing: Victims and families of victims of drunk driving are understandably upset that people are committing reckless homicides and being treated like it was just oopsie an accident. So they lobby lawmakers to make driving with any alcohol in your bloodstream a crime. And over the years, the amount of alcohol required gets smaller and smaller, because who wants to lobby for the alternative? Who wants to be the guy pushing to make the law go easier on those killers? And so the arbitrary line keeps ratcheting down because nothing is there to prevent it.

For things like texting, it’s more of a zero-tolerance thing: We can’t ever know which text or other distraction is the one you could do safely or the one that would cause a pileup on I-70. So we just outlaw all of them. (If we were intellectually honest, we’d simply outlaw driving while distracted, which is the actual problem. But that would fill the jails with moms who were yelling at kids, people driving while furious after an argument, girls putting on makeup on the way to work, truckers eating tacos, and the like. And we don’t want to do that, do we?)

It’s not just traffic laws — the law is filled with examples of “bright line” rules. All are arbitrary. Some try to strike a balance, some are purely political, and some are unthinking zero-tolerance rules. But the lines have been drawn. And that’s the important thing.

The important thing is that the line is drawn somewhere. Because it’s not about justice. And it’s not about safety.

It’s about not having to make subjective decisions.

And now you know.

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

It’s an intriguing notion: that one can objectively assess the relative effectiveness of a given lawyer. With hard data, and sound analysis. In the real world, it’s nigh impossible to tell how good a lawyer really is. You can look on Avvo and see what people here and there may have subjectively thought about him, but that doesn’t tell you whether any other lawyer would have done as well (or been just as dissatisfying). You can ask around and get a sense of what other lawyers generally think of him, but that’s just as subjective. There’s really nothing out there to tell you for sure whether that lawyer gets better-than-average results or not.

So Wake Forest professors Ronald Wright and Ralph Peeples — to their great credit — tried to see if it could be done. In their recent paper, “Criminal Defense Lawyer Moneyball: A Demonstration Project,” they conclude that it can be done. They may even be right about that. But not from the data they gathered, sadly.

[Warning: The internet's gonna try to do it anyway. Granted, the authors are concerned more with providing a useful tool for managers of institutional organizations providing legal aid, than with helping potential clients assess a lawyer's abilities. But you can bet that Avvo or someone like them would love to develop an algorithm that ranks lawyers in a way that potential clients are willing to pay for. It may or may not be all that objectively useful, but consider yourself warned.]

Wright and Peeples don’t claim that their methodology is the be-all and end-all of statistical analysis; it’s just a test to see if it’s doable here. So it would be just as foolish to draw any conclusions from their results (beyond the fact that they were able to get results, which was the point), as it would be to jump all over them for leaving out important considerations. Still, with that caveat, let’s do both!

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The methodology was very simple. First, they needed a base number they could use to compare people. They chose the difference between the most commonly imposed guideline sentence for a given arraignment offense, and the actual sentence achieved in a particular case (looking at statewide North Carolina data.) So someone who could negotiate eighty days off a case would be considered more effective than someone who only got the prosecutor to come down thirty days. The guideline took the defendant’s criminal history into account, so that variable was already factored in. And because pleas vary from one criminal offense to another — you might get a lot of months off in a plea to a nonviolent offense, while a violent offense at the same level might not have as much wiggle room — they figured out the standard deviation for each offense.

With those basic numbers, it was easy to see how much an individual lawyer varied from the statewide average, in getting pleas for specific charges. They were able to collect a lot of other data about the lawyers and the cases, which enabled them to run a regression analysis to see which variables actually had any effect on those  numbers.

The biggest variable had nothing to do with the lawyer, the defendant or the offense: it was the local prosecutor’s office. Some offices are hardasses, some aren’t. Hardly a surprise there, but also not exactly something within the lawyer’s control. So not a useful variable.

The next biggest variable was the defendant’s criminal history — something that was supposed to have been controlled for by using the guideline as the reference point. Apparently, repeat offenders are more likely to get more time off their sentence. The authors speculate that it might be because everyone in the system thinks the guidelines are too strict for predicates, but it could also be a flaw in the methodology. Whatever the reason, it’s got nothing to do with the lawyer, and so it’s still not a useful variable.

The only variable that was statistically significant that had anything to do with the defense lawyer himself was the amount of time he’d been practicing. Shiny new lawyers in their first 4 years performed slightly above average. They peaked during years 5 to 9. And then it was all downhill from there. A second peak of effectiveness during years 15 to 19, but dropping again after 20 and plummeting in free-fall after 25.

That’s a counter-intuitive observation if ever there was one. And the authors suggest reasons for it, such as becoming used to the way things are done and so less willing to fight for more. Other reasons might be that older, more experienced attorneys were more likely to handle cases with lower point spreads. Or that they got more results that weren’t quantified here, such as acquittals.

Might as well mention some problems with the methodology at this point. At least those that were apparent from the paper (apologies to the authors for any misunderstanding here).

A big one of course was, as always, the sample. But they did their best with what was publicly available, and frankly they could have done a lot worse.

More critically, they focused on a single metric that is probably not as good an indicator of relative merits as they suspect. The data itself shows that pretty much nothing within the lawyers’ control had any significant effect on the plea results. As a way of distinguishing two lawyers in an organization (or online) who graduated law school roughly the same time, the plea differential is kinda useless.

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This could end right there. The study was to determine whether statistical analysis could be used to meaningfully compare attorneys. The authors say yes, but the data really says no. Certainly, the data demonstrates that there is variation among the outcomes that attorneys get, but the causes appear to have nothing to do with the relative merits of the attorneys. That does not mean that all attorneys are equally good; it simply means that the measurement they chose isn’t useful for comparing them.

And that itself doesn’t mean that statistics can’t be used to measure those differences. It only means that this statistic can’t.

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But there are other problems that ought to be addressed by anyone trying to come up with a similar study (or algorithm).

A huge one was that the study ignored wins. Getting an acquittal at trial, getting the evidence suppressed and the case dismissed, persuading the prosecutor not to file charges in the first place. There are lawyers who plead out every case, but many don’t. Some are really good at making a case go away before it ever happens, but a study like this cannot measure that. Some are really good at winning trials, but ditto.

Maybe “ignored” is too strong a word. Because how do you count what didn’t happen? Still, it is an important consideration for any such approach.

Another problem was in the weighting of cases. The authors did acknowledge that different kinds of offenses get treated differently, and finding the mean plea deal and the standard deviation for each offense was certainly the way to go, but they shouldn’t have stopped there. No two cases are alike. Two may involve the exact same offense, but one is still… worse. The lawyer on the worse case isn’t likely to get as great a deal as the one on the less-serious one. That doesn’t make him a worse lawyer.

Maybe that’s why the young tyros were getting better deals than their elders — they handled the easier cases. It may well be that the more experienced lawyers (in addition to getting more acquittals, dismissals and non-prosecutions) were getting better deals than the younger ones could have gotten in those cases. Or not. We can’t tell from this data, is the point.

Anyway, this post is already longer than it was supposed to be. Statistical ranking of lawyers may well be doable, and it may well be useful. But this study doesn’t really support that conclusion. And those who would try to imitate it for publication or for profit need to understand why.

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers removal (incapacitation) and deterrence. Keeping a danger off the streets, and giving others cause to think twice before committing the same crime.

As for removal/incapacitation, he sees little benefit to justify the extra 20 years. He acknowledges that sex offenders are more likely than most to reoffend, as their crimes are “compulsive rather than opportunistic.” (An excellent way of putting it.) But after the first 30 years have been served, this defendant will be in his 70s. Not exactly a demographic that commits sex offenses, no matter what their proclivities may have been in the days of their fecundity. For age gelds a man without hope of reprieve. Keeping a dangerous person off the streets isn’t a reason to keep him in until his 90s.

As for deterrence, he rightly points out the absurdity of thinking that a potential offender will change his mind knowing that he could get 50 years, but would have gone ahead and committed the crime knowing it would only get him 30. (To which we might add that hardly anybody knows what sentences the law prescribes, save for lawyers, judges and the occasional career criminal. It is the threat of some punishment, and not its form or extent, that deters people in real life.)

So far, so good. But that’s where Posner leaves it. And in so doing, he omitted any discussion of what’s really going on. If he wants to change things, he’s going to have to address the actual sources of such sentences.

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There are other purposes of punishment: rehabilitation, retribution, and retaliation. Rehabilitation isn’t really at issue here, and nobody in possession of the facts can believe that imprisonment “cures” anything. And retaliation — the mere striking back at those who have struck us — is too emotional and visceral to address with any intellectual prose.

But retribution can be addressed with reason. And it is precisely what is going on in this sentence — indeed, in most sentences.

The judge gave Craig 50 years because that is what he thought these crimes were “worth.” Their equivalent harm. It’s the old “eye for an eye” way of thinking, and it’s what most judges and lawyers and even defendants are thinking about when considering an appropriate sentence.

If recidivism was the concern, the sentence could have been 15 or 20 years, long enough for the sexual urges to be weakened by time to the point where they’d be disregarded, if even still extant. If deterrence was the concern, there would be some effort to publicize the severity of the sentence to the general population, rather than the anonymous obscurity in which this and almost all other sentences exist. If rehabilitation was the concern, there would be some effort to defuse or overcome the underlying urges, which ain’t gonna happen.

The only concern is what this guy deserves. It has nothing to do with any cost-benefit analysis. Society’s burden is irrelevant. Society’s gain is irrelevant. The only factor is hurting this guy as much as he hurt society and his victim. Period.

But this is not an emotional concern. It is strictly rational, believe it or not. It requires some intellectual balancing of the respective harms. That’s a pretty deep philosophical conundrum in any case. Little wonder judges tend to think of sentencing as the hardest part of their job. (It’s also the one time where they are a player, rather than a referee.)

And Posner doesn’t like this sentence, not because it was economically irrational, but because he thinks it was too damn high. He wishes it had been more reasonable. He uses his economic analysis to show where a reasonable sentence might lie, but he wouldn’t be doing so if he thought it was what the crime was worth.

He’s one of a growing number of judges who believe that child porn sentencing is too harsh. If he wants to affect how judges make those decisions, however, he needs to address the real concern — not by providing cost-benefit analyses of deterrence and incapacitation, but by providing guidance to the thorny question of how much incarceration balances out a given harm.

It’s a task for rational minds, sure. But not for economics.

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be easy to figure out whether law is a good fit for you — and whether you’re a good fit for the law.

There are lots of different kinds of lawyers — corporate, administrative, family, criminal, personal injury, insurance, tax, international, you name it. And there are lots of different kinds of practices — from the solo hanging out his own shingle, to the boutique firm specializing in a particular field of law, to government agencies, to volunteer organizations, to in-house staff at a company, to megafirms representing big corporations. There are dozens of ways to practice law.

But no matter what kind of lawyer you are, your job description is the same: People come to you with situations that are extremely important to them. They put their trust in you to take care of it. They entrust their lives and livelihoods to you, to make decisions and take actions on their behalf. Whether you’re drafting a contract to protect their interests, figuring out the right path through a maze of regulations, or defending them in a courtroom, you have been entrusted to handle an important part of another person’s life.

You help them by understanding the law. Which is complex, intricate, sometimes bizarre, and often baffling. Your job is to master what the law is, what the rules are, why the law is the way it is, and how it affects your client. This doesn’t necessarily require brilliance, but it does take a lot of time and study. Study that doesn’t end with law school.

You also help them by exercising sound judgment. This is a rare quality, and is not innate. A corporate lawyer may have time to think an issue through, while a trial lawyer may have to think on his feet, but both need to be able to act wisely. This requires a combination of deep understanding, intelligence, and character.

This can be hard work. The hours can be long. The stress can be severe. There’s a reason why lawyers suffer from depression and alcoholism more than most.

And the client’s interests always come first. Your bank account, your comfort, your personal goals must not be allowed to conflict with your client’s interests.

The pay varies a lot. But unless you’re one of the lucky few, you’re not going to get rich doing this. Most lawyers could be earning more money doing something else. Seriously. Even the sliver of lawyers making big money at the big firms could be making even more if they were the ones doing the business deals, instead of just getting paid to help the deals happen. Depending on what part of the country you live in, the average lawyer makes anywhere from $40,000 to $140,000 per year. Factor in cost of living, and the pay isn’t amazing. $140,000 in Manhattan or San Francisco is solidly middle-class. (For comparison, according to salary.com the average corporate secretary in Manhattan makes more than that.)

There are lots of miserable lawyers. The most miserable are the ones who went into the law for a paycheck. If you want to become a lawyer for the money, you’re setting yourself up for an unhappy life. There are plenty of happy lawyers who make a good living at it, but they’re not happy because of their bank account. They’re happy because they’re doing what they love, and they’re good at it.

So if you want to become a lawyer because it’s a steady job with good pay, then no, you should not become a lawyer.

And if you want to become a lawyer because you can’t think of anything else to do with your life, then no, you should not become a lawyer.

And if you want to become a lawyer because you like to argue, then no, you should not become a lawyer.

But if you want to become a lawyer because you actually like law and you like working hard and you exercise good sense, and you sincerely care about busting your ass to help someone else, then yes. You should be a lawyer.

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2. Is law school right for me? / Should I go to law school?

After reading the answer to question 1, do you actually want to be a lawyer? Do you want to be a lawyer for the right reasons? If not, then no, law school is not right for you. You should not go to law school.

“But don’t people get law degrees who don’t want to become lawyers?” Sure, but it’s kind of a waste of time. It’s not going to open other doors, and it’s not a place to kill time while you’re waiting to find yourself. (Hint: Look down. That’s you reading this.) Law school is vocational training for people who need to learn how to master the law. That’s it. It gives you some basics of what the law is and how it works, and teaches you how to figure it out for yourself down the road when you’re actually practicing. The occasional clinical program and moot court may also teach some rudiments of practicing law, as well. It doesn’t really prepare you to do anything else. Would you drop a couple hundred grand to go to plumbing school for shits and giggles?

If you do sincerely want to be a lawyer, and you think you have what it takes to do the job, that’s most of your answer right there. But there are a few other things to consider.

One is how good a student you are. People who don’t do well in law school tend not to do well as lawyers. There are occasional exceptions, but in general this is a solid rule of thumb. After all, if you can’t handle the basic stuff in school, what makes you think you’ll be better at the tricky stuff of real life?

And if you’re not doing all that great in undergrad, what makes you think you’ll suddenly become better at being a student when the work gets even more demanding?

Here’s what it takes to be a top law student: Time, Diligence, Perseverance, and Time.

You don’t get As in law school by being bright. You don’t get As by cramming for exams. You don’t get As by being able to bullshit your way through a paper. You get an A by putting in the time starting on day 1 to really, deeply understand what the hell is going on, and being really really good at explaining it.

The people who do best in law school aren’t always the smartest, or the best test-takers. The people who do best in law school are the ones who are the best at being students. They do their reading and take notes on what they read. They pay attention in class and take notes on what they hear. Then they process all that information and review those notes at the end of the day. On the weekends, they organize what they’ve figured out into a usable outline. They track down other sources to try and figure out the stuff they didn’t understand. They talk issues through with classmates and professors. Weeks before the final (the one grade for the class), they’re practicing taking old exams, to get used to dealing with the issues. None of this is a function of intelligence. It’s all about putting in the time and knowing how to learn for real.

If you’re not the kind of person who does that, you’re probably going to have a bad time. You’re not going to do well. And if you’re not going to do well, then you really shouldn’t go in the first place. You’re just wasting your life and your money.

If you are that kind of person, however, then you’ll probably do well. Law school will be worthwhile.

So the short answer is, if you want to be a lawyer for the right reasons, and if you have the right kind of personality and character to be a lawyer, and if you’re really good at being a true student, then yes, law school is right for you.

Otherwise, you’re not going to be a happy camper. Find something else, and actually enjoy your life.

—–

3. Does an undercover have to tell you if he’s a cop? / Can the police lie to you?

No.

Yes.

—–

4. Are New York City’s gun laws unconstitutional?

Absolutely.

—–

5. Are sex offender registries unjust?

Often.

The thing with registries is that the law doesn’t treat them as a punishment, which conveniently places them outside the realm of criminal law — and its attendant rights.

Sex offender registries are there because recidivism among sexual predators is pretty high. A sexual urge is more compelling, after all, than an inclination to steal. The thinking is, if Joe Predator gets his jollies from raping little kids, he’s still going to want to do that once he gets out of prison. So make sure the community is forewarned. It’s not about punishing Joe; it’s about protecting everyone else from a likely threat.

Taken at face value, that’s not a terribly shocking proposition. If it’s true that there’s a strong likelihood that Joe will try it again, it makes sense to let the affected community know of the risk.

There are many problems with this, however.

The biggest problem is that you get registered as a sex offender for things that have nothing to do with being a sexual predator. A 17-year-old girl who has oral sex with her 16-year-old boyfriend winds up on the registry. A respectable citizen who takes an emergency leak behind a tree winds up on the registry. A man who visited a prostitute winds up on the registry. A college kid streaking at night winds up on the registry.

It’s not about rapists and child molesters. And yet that’s what all these people are publicly identified as.

Their lives are ruined. Their reputations are shot forever. Try to get a job when you’re tarred as a sexual predator. Try dating anyone with access to the internet. Try to make friends, rent a home, have any place in decent society.

When you did nothing wrong.

It’s cruel and unusual punishment for those who aren’t actual threats. But it’s not treated that way because it’s not technically punishment. It’s just a civil, regulatory process. So the constitutional protections that would otherwise apply don’t count.

But that’s intellectually dishonest. The punitive effect is real, regardless of the technical intent. For non-predators, the punitive effect clearly outweighs any other aspect of the registry. For them, it is nothing less than criminal punishment that is cruel, bizarre and vastly disproportionate to the harm done.

But try getting a politician to argue in favor of reasonable reform. Who can hope to get re-elected when one’s opponent can crow that you tried to make it easier for rapists and child abusers to attack again? In real life, the registries just get broader and broader, including more and more things that have less and less to do with sexual offenses.

If that ain’t unjust, I don’t know what is.

I’ve been taking a break from posting here while cranking out the last installments of my guide to criminal law. The last one went up today (it touches on terrorism, but the fact that it was posted on 9/11 was the purest coincidence).

And just in time, too. Because the book can now be pre-ordered from the publisher.

You read that right. YOU CAN BUY THE BOOK! Yeeha!

Well, what are you waiting for? Stop reading this and go make my publisher happy.

The latest Illustrated Guide post is finally up. It only took for-freaking-ever, what with work and family and something like twenty rewrites. It goes into some of the problems with strict liability, overcriminalization and regulatory crimes — which is the perfect way to sneak in a (simplified) history lesson  on criminal law, to show how the problems developed. It wraps up with some preachy solutions.

It’s the longest one yet, with 56 panels and over 100 drawings. The tl;dr version is “good people still get in trouble, but it’s fixable.”

The first half can be seen here.

The second half can be seen here.

. . . . .

Here are some random samples:

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See the rest here.

Next time, a real blog post. Promise.