Some [Craigslist] advice from your public defender

Back in April 2005, a public defender posted some free/hilarious advice on Craigslist, which is copied and pasted below. Although hilarious, I still think PDs who bitch about their clients have it wrong. That's what you signed up for, right? It's not like us civil lawyers complain about demanding corporate clients. (maybe I should insert *should* complain....) Who do you expect your clients to be? If they were rational/normal, would they really be in the position they're in?

However, the underlying advice is good. It is always soo frustrating when your clients seal their fates before you have a chance to help them. (If only they had us when the contract was drafted/negotiated, we could've avoided the ambiguity we're spending $$ to litigate!)

Another defense that criminals try to make, if drugs are found on them: "Officer, these aren't my pants!" It's actually a pretty good defense -- it's reasonable to believe that if you're homeless you'd be wearing someone else's pants that you found. And those pants happened to have drugs in them. The problem, apparently, is police have heard that defense too many times to ever believe it again.

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Here is the public defender's Craigslist advice:

First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.

You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. There's just no need to babble on like it's a drink and dial session. They are just pretending to like you and be interested in you.

When you come to court, consider your dress. If you're charged with a DUI, don't wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the "UniBonger" on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.

Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on my while you speak and further transmit your strep, flu, and hepatitis A through Z.

I'm a lawyer, not your fairy godmother. I probably won't find a loophole or technicality for you, so don't be pissed off. I didn't beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don't be too surprised by your limited options and that I'm the one telling you about them.

Don't think you'll improve my interest in your case by yelling at me, telling me I'm not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire me, it makes me hate you and want to work with you even less.

It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.

For the guys: Don't think I'm amused when you flirt or offer to "do me." You can't successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just as spectacular, and the thought of your shriveled unwashed body near me makes me want to kill you and then myself.

For the girls: I know your life is rougher than mine and you have no resources. I'm not going to insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that your stop stealing shit. I do wish you'd stop beating the crap out of your kids and leaving your needles out for them to play with because you aren't allowing them to have a life that is any better than yours.

For the morons: Your second grade teacher was right -- neatness counts. Just clean up! When you rob the store, don't leave your wallet. When you drive into the front of the bank, don't leave the front license plate. When you rape/assault/rob a woman on the street, don't leave behind your cell phone. After you abuse your girlfriend, don't leave a note saying that you're sorry.

If you are being chased by the cops and you have dope in your pocket -- dump it. These cops are not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets, idiot. 2 grams is not worth six months of jail.

Don't be offended and say you were harassed because the security was following you all over the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were stealing. That's not harassment, that's good store security.

And those kids you churn out: how is it possible? You're out there breeding like feral cats. What exactly is the attraction of having sex with other meth addicts? You are lacking in the most basic aspects of hygiene, deathly pale, greasy, grey-toothed, twitchy and covered with open sores. How can you be having sex? You make my baby-whoring crack head clients look positively radiant by comparison.

"I didn't put it all the way in." Not a defense.

"All the money is gone now." Not a defense

"The bitch deserved it." Not a defense.

"But that dope was so stepped on, I barely got high." Not a defense.

"She didn't look thirteen." Possibly a defense; it depends.

"She didn't look six." Never a defense, you just need to die.

For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.

For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.

dealing with noob lawyers

One of the funnier urban dictionary posts I've seen. Basically, a "noob" is what non-internet-nerds call a "newbie." Yes, noobs can be frustrating (someone must've really pissed off the author of that post!). Noob attorneys are obviously a malpractice suit waiting to happen. They bill too much, they miss issues, and -- the frustrating part for opposing counsel -- they hinder progression/settlement of the case. They don't "know the drill." They make everything harder. They don't realize this is San Diego, a town more country than Burmingham, AL -- here, professional courtesies are mandatory. I've been dealing with a noob who should've settled a case long ago; instead, he's burning through attorney fees like crazy to collect a relatively small debt.

The obvious way to spot a noob attorney -- the state bar membership number. It's an objective pecking order for attorneys -- the lower the better. (There's nothing more humiliating than having your name listed on a pleading below a colleague with a higher/more recent bar number.) My noob has a 259XXX membership number, although I've been dealing with people in the 260000s. I must say, my 238XXX bar number is looking pretty damn respectable these days, if I don't say so myself. I've been making moves since 2005. Yes, I'm still an associate, but I've got the mileage -- and have had it for a while now -- so you can't mess with me.

Another way to spot a noob attorney is when they don't know the random legal lingo. My noob learned what Bates Stamping is the hard (embarrassing) way -- from me! In responding to a proposed stipulation I drafted, my noob's only comment was that "date-stamped" is misspelled as "bate-stamped." Of course, my email response was polite -- I let him save face by saying that the term should've been capitalized, and that's probably what led to his confusion. Classic for this guy. As I've said in previous posts -- you can't ASSUME the other side is making a mistake.

The point is: If you're a noob, don't try to "hang out your shingle" and go out on your own. Your freshly minted law degree and bar card don't qualify you to practice law -- think of the medical profession: you're a "doctor" if you graduate medical school, but you still need a residency etc.

If you're the employer of a noob: Don't give them authority/discretion that's above their pay grade. Let them bang out the briefs etc., but make them run even basic decisions up the ladder. They will soon get the feel for how your particular firm handles certain situations, because if you're any good, you have canned responses to various issues that come up.

A guide to writing sarcastic briefs

This is a good article. It makes the following points:

If an opponent's "tone is unnecessarily nasty, it's pointless to carry on about it. It makes you look like a whiner." Exactly. It's distracting and makes you look weak by avoiding those things we like to call the merits. Judges see crap briefs all day every day, so pointing out one more example isn't going to surprise anyone -- it'll just make yours more like "one of those."

Sarcasm often assumes that the judge already agrees with your side and will just go ahead and join in the abuse of the other party. You know what they say happens when you ASSUME something, don't you? (ass-u-me.)

If you're funny and good at it, then go for appropriate sarcasm/humor/color in your brief. "[O]ne giggle is worth a thousand underlinings, boldface types, and exclamation points." I.e., there's nothing wrong with making the judge chuckle, it will help her remember your point. This is obviously a matter of discretion. But that is exactly what makes a good lawyer -- to have the discretion/judgment to know what's persuasive. Anyone can pull the legal research, it's about knowing what arguments -- and methods of presentation -- will persuade and grab attention.

I've seen some hilarious examples of poorly done attempts that, for the time being, I will decline to post in order to preserve pseudo-anonymity.

case finally decides "full and complete" concept in interrogatories

Discovery (especially written) is a game. And the rules don't get enforced. Opposing sides rarely spend the money and time to bring a motion to compel. Even if ordered to provide further discovery responses, courts rarely impose sanctions. So, lawyers just have to be governed by their own standards of professionalism; a key line to draw is between asserting "hypertechnical" objections and gratuitously answering inappropriate/objectionable discovery requests.

One objection that used to be in my lineup was that a particular interrogatory is not "full and complete in and of itself," as required by California Code of Civil Procedure section 2030.060, subdivision (d), which provides in full:

(d) Each interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with section 2033.710 [form interrogatories approved by the Judicial Council]).

We took this provision to mean that an interrogatory is objectionable if it relies on definitions contained in previous interrogatories, or relies on a "preface or instruction." I've never used this objection -- in itself -- to not respond to an interrogatory, but still, combined with other valid objections, it could help justify not responding to a request. But this always felt like one of those "really?" objections. In fact, seizing on "at most an arguable technical violation of the rule" has been called "the type of gamesmanship and delay decried by the drafters of the [Discovery] Act." (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1287.)

Not surpisingly, Clement kills this objection and hit the lawyer with $6,000 in sanctions. I just can't believe Clement spent almost four pages talking about this throw-away objection (guess the court was pissed). Basically, Clement makes clear that the rule is simply meant to prevent parties from circumventing the "rule of 35" -- parties may only propound 35 specially prepared interrogatories. So, the rule is now that references to previous rogs, and outside materials/documents, is only prohibited where the effect is to undermine the rule of 35 (i.e., by asking a single rog about the "truthfulness" of a party's 10,000 deposition answers). (Id. at p. 1290.)

I agree with Clement and Professor Martin's take on Clement. Obviously. I mean who's gonna argue against the "practical approach" adopted by the court. But I still think you need to make your "nitpicky boilerplate" objections, or else they're waived. You just can't use them as an excuse to not answer the rog.

The joke behind the "rule of 35," however, is that parties don't need to resort to sub-parts and referencing outside materials to break the rule. All they have to do is file a form declaration stating the need for the additional discovery, and that the discovery is not sought for an improper purpose. (Code Civ. Proc., §§2030.040, 2030.050.) Then you can ask as many rogs as you want, placing the burden on the responding party to seek a protective order.

another maxim (not the magazine)

Expressio unius est exclusio alterius. According to this maxim, "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 517.)

This footnote is great, showing the weakness of maxim quoting "masquerading" as law:

FN15. In United States v. Castro, 837 F.2d 441 (11th Cir.1988), the court emphasized the limitations of the maxim quoting the following excerpt: "Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exclusio alterius, which is a rather elaborate. mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, this maxim is at best a description, after the fact, of what the court has discovered from context."

(Abdullah v. American Airlines, Inc. , 969 F.Supp. 337, 348 (D.Virgin Islands 1997).)

Burn.