Ipso Facto – Musings and more

In his Washington Post article this week, Jason Horowitz writes of the following now well-publicized incident: “A few days later, Friedemann entered Stevens Hall off the school’s collegiate quad to find Romney marching out of his own room ahead of a prep school posse shouting about their plan to cut Lauber’s hair. Friedemann followed them to a nearby room where they came upon Lauber, tackled him and pinned him to the ground. As Lauber, his eyes filling with tears, screamed for help, Romney repeatedly clipped his hair with a pair of scissors.”  Several commentators have stated that this event should not weigh in consideration of the man Romney is today, and that most of us have done things at a similar age that we now regret.  Romney himself has apologized, though he professes no memory of  doing it.

Indeed there are many similar incidents in the personal histories of many men – fraternity hazings being a prime example.  But too, let us not ignore the simple truth that such an act is criminal.  Restraining a person and cutting his hair would be  false imprisonment and battery, crimes in any state.  If this had happened in a public school, instead of a private one, I can imagine that a police report would have been filed.  So I leave it up to the conscience of the reader and the voter whether to weigh this incident in deciding on Mr. Romney’s fitness to be president.  But let us not move on by simply claiming that “we all did things of which we are not proud.”  Neither I nor my friends every physically attacked a high school classmate.

Today I gave my last presentation in our class on Technology in Law Practice.  The remaining classes will be spent with our students giving presentations on a topic of particular interest to them.  I wanted to impart the points that I think are most important, and I think they are worth sharing with any of you interested in teaching a similar class at your law school.  Here are the notes I used today.

The only constant is change, and even though change is constantly occurring, the rate of change is not constant – in general it is accelerating.  Therefore, the material we cover in class, and the class itself, does not and cannot show you everything you need to know to integrate the use of technology into your career as an attorney.  Instead, the purpose of the course is to open your eyes to the possibilities and the changes, some of them fundamental, which advances in technology, are bringing to legal practice.  To that end, there are three principles that we hope you have learned:

1.         Up until recently you have used technology as a consumer, rather than as a professional; this has only allowed you to scratch the surface of its capabilities.

2.         In a shrinking and ever more competitive marketplace, using technology well can give you a competitive edge.

3.         Every use of technology in your practice has ethical implication and it probably has ramifications on your reputation and standing in the legal community.

Some impacts of technology on practice:

1.         Communication with clients.  Less than a generation ago, clients either phoned you on a landline, sent you a letter, or came into the office. As a general rule, client contact was from 9-5, though as a new associate you were likely to be working in the office well beyond those hours.  Now clients can reach you 24×7 if you let them.  Email, web portals, texts, Twitter, and cell phone calls put you at the client’s beck and call instantly, and at any time of day or night.  This will play havoc with your personal life, and if you don’t make time for your own needs, the stress will literally kill you.

2.         Communication with opposing counsel and the courts.  Again, in an earlier decade you would have relied on postal mail or a runner to exchange documents with opposing counsel and to file them with the court.  The somewhat slower pace of communications may have given you a little more time to think through your next action in a matter, and your response to the letter you just received.  Now you exchange digital documents with opposing counsel.  Unlike the typed and photocopied pleadings of yore, the digital copy can contain the entire history of your work product in metadata, exposing it to the wrong eyes.  Dashing off an instant reply to a demand email message, before you have fully contemplated your response, is both tempting and risky.   On the other hand, the luxury of being able to wait until nearly the last minute to file an electronic pleading may give you the extra time you need to perfect it.

3.         Information is boundless.  Before discovery was practically limited by the time it took to compile and the space it took to store paper records in file cabinets and bankers’ boxes.  Now nearly everyone and every business generate and store their records electronically.  Effective discovery depends on a thorough understanding of business process and the formats and applications used to create and store digital records.  In some cases you will know more about this than the judge, and it will be your job to educate the court so you can obtain the result you want, or at least have a fair chance of getting it.  Conversely, digital data can be searched quickly by computers with the right programs, more quickly and cheaply than having legal assistants and associates poring over boxes of paper records.

4.           Like a mechanic or plumber, you will learn that every job has the right tool and using those tools will make the difference,  Whether drafting pleadings or contracts, analyzing financial statements or medical records, presenting evidence or summing up for the jury, using the appropriate equipment and application will make your job easier to accomplish and more effective.

5.         Laws and codes of conduct often are playing catch-up with advances in technology.  Where the legal answer to a question involving technology is not obvious or clear, apply common sense and don’t be afraid to analogize.  When all else fails, argue for what you perceive as the just result.

Summarizing some current roles of technology: an incomplete list

• E-Discovery
• Social Networking, both as a marketing tool for you and as a source of information about others for yourself and for your clients.
• Presenting evidence with slides, images, audio, video, simulations, reconstructions
• Organizing thoughts, facts, and strategies
• Analyzing data: numbers, science, timelines, costs, relationships
• Optimizing strategy with jury polling, demographic studies
• Making information available securely, from anywhere to anyone but only to those who need to see it
• Storing information securely and in multiple locations to minimize the risk of loss
• Communicating from anywhere at the time of your choosing, allowing you to control your schedule and your life, if you assert that right and properly manage expectations

To paraphrase Peter Parker’s Uncle Ben: “With great technology comes great responsibility.” I am confident that you are up to the challenge

Like many others, I am outraged by the apparent circumstances surrounding the killing of Trayvon Martin, allegedly by George Zimmerman, in Sanford, Florida, nearly a month ago. It is hard for me to imagine any set of facts, other than being lunged at by someone carrying a deadly weapon, that would justify the use of deadly force. The failure of the Sanford Police to carry out a thorough investigation at the scene of the crime upon arrival is stunning and inexcusable, regardless of the provisions of Fla. Stat. § 776.032, the immunity provisions that apply to Florida’s so-called “stand your ground” law (Fla. Stat. § 776.013, where protection of a home is not involved). The law reads as follows:

776.032. Immunity from criminal prosecution and civil action for justifiable use of force
1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

The statute itself appears to give countenance to the failure of the police to properly investigate, and in fact appears to give the investigating law enforcement agency the power of prosecutor, judge, and jury by stating that it cannot make an arrest unless it determines that there is probable cause that the force used was unlawful.   Thus, Rev. Al Sharpton and others are not off the mark when they accuse the Sanford Police of acting as judge and jury.

The outrageous provisions of this law were brought to my attention in a post by Professor Michael J.Z. Mannheimer of the Salmon P. Chase School of Law at Northern Kentucky University, writing at Profsblawg (via Professor James Milles at University at Buffalo Law School).

As a member of the Florida Bar for 19 years, I never practiced a criminal case.  I am not a criminal law scholar.  So give my opinion as little weight as you care to.  I submit that the statute is unconstitutional, at least in its application, insofar as it attempts to prohibit an arrest, in that it violates the Florida Constitution:

Art. I § 9 states that “No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.”  The immunity from prosecution provision purports to allow a citizen acting under color of law to execute another citizen on a “reasonable belief,” taking away the need for a court proceeding to adjudicate such a finding.  That is a deprivation of life without due process of law by a person acting under color of state law.

Note that the legislature did not attempt to remove access to civil process by the victim of someone claiming to act in self-defense, but it did add provisions to assess costs and penalties on the plaintiff if the court finds that the defendant was immune under the statute.  In criminal matters as well, it is the province of the court, not law enforcement officers, to decide when legal standards have been met in issues of life and death.  The police need to arrest George Zimmerman now, the prosecutor needs to seek an indictment, and let the case wind its way to the Florida Supreme Court to determine whether the purported grant of immunity is constitutional.  Only at a full criminal trial will sufficient evidence be revealed to decide whether George Zimmerman was reasonable in his belief that he faced “imminent death, great bodily harm, or imminent commission of a forcible felony.”

[Update] A quick review of Florida District Courts of Appeal decisions finds that one has held that whether the evidence supports the immunity claim under the statute is a matter of law and for the judge to decide, rather than an issue of the jury, as a common-law claim of self-defense would be.  Another finds that a hearing at trial where the judge viewed the claim using the preponderance of evidence standard was correct.  In that case the court held the defendant was not entitled to use the immunity claim under the facts.  Clearly there is precedent for arrest and indictment of defendants where the benefits of the statute are claimed.  It’s time to arrest and charge Mr. Zimmerman.

Dear Speaker Boehner and Minority Leader Cantor:

Please stop pretending that you speak for me, and the approximately half of the citizenry who vehemently disagree with you. Both of you, and especially Mr. Boehner, have developed the fiction of prefacing a statement of your beliefs with the phrases, “The American people want [or don't want],” or “The American people believe [or don't believe].” Your use of those words rings hollow, and is a fiction that attempts to justify your positions on issues. It is an unjustifiable habit. First, you were not elected by a majority of the American people. In fact, each of you ran in a congressional district that represents a small fraction of the electorate. On average, we might say that your district represents 1/435th of the people, ignoring the population discrepancy between districts in heavily populated states and that in the sparsely populated ones. You then attained your leadership positions in the House by a vote of your party’s representatives. But had we, the general population, been offered the opportunity to select the leaders of Congress, we might have chosen someone else. Alas, Congress is a representative body based on geographical division of the country, and the only federal position upon which we all vote, albeit indirectly, is the Presidency. So, if anyone claims to be able to speak on behalf of the American people, it would be the current president, who at least won a majority of the popular vote. But I will acknowledge right here that there are plenty who voted for Mr. McCain or other candidates who would prefer that Mr. Obama not claim to speak for them.

Let me go further. When you state that the American people believe this or that, you truly offend me. Nearly everything you say is in direct opposition to my deeply held beliefs. Mr. Cantor is especially grievous in his statements. As but one example, he is solicitous to the attentions of the so-called Tea Party, whose members in 2009 engaged in rowdy public behavior while exercising their First Amendment rights, and who were as divisive as anyone in their hijacking of town hall meetings and in their carrying of truly offensive signs; yet this week you lambasted the mostly peaceful “Occupy Wall Street” protesters as setting American vs. American. It is you, sir, who sets American vs. American.You insist that despite years of unwavering support for the unfunded wartime spending of President Bush, now we must cut dollar for dollar for any spending on our own needs, including that needed to ameliorate the suffering of those in your own district. It is you who joins in the efforts of a party that has as its modus operandi the delegitimizing of any Democratic president. It is you, sir, whose party created the “Southern Strategy,” the deliberate pitting of white vs. black. It is you and your colleagues who were (and apparently remain) eager to risk the financial foundation of our country to achieve dishonorable ends. Your claiming to speak for me is a slander of my good name.

Mr. President: Please do not blink now. The Congressional Republicans are playing a potentially cataclysmic game of chicken. They can taste the victory of imposing fundamental, ideological change on what this country stands for, in the guise of concern for a deficit, one they built in the past 12 years. Please do not give into their demands. Do not allow them to turn us into a country where the middle class is thrown to the winds, the wealthy and corporations shirk all societal responsibility, and shameless ideologues get away with demeaning the President of the United States.

Respectfully,
Kenneth J. Hirsh

I did not send the tweet.
I broke no law.
It really isn’t anyone’s business whether that picture is of me, since I did not send the tweet and I broke no law.

[Updated 06/07]

Well, he might get away with “I broke no law,” though the ethics committee investigation will tell us more about that.