Trial lawyers ought to have a war room.

Your office is not a war room; it’s your office. It’s where you do your everyday stuff: answer the phone, check email, enter time, etc. But you shouldn’t prepare for trial there because preparing for trial is a different psychological activity. It requires a different mindset:

I mean, sure, in the early stages when you’re not sure whether the cases really will go to trial, you can work at your regular desk. But, after plea negotiations have fallen through and it really is time to get busy, that trial needs its own space. When it’s time to get serious, I take the file home and sequester myself there. My paralegal has my cell phone in case of emergency but, otherwise, she knows that I’m not to be interrupted. It’s just me and my one immediate problem.

In The Temple of Dawn, Yukio Mishima describes his main character, a lawyer, working so furiously that his office eventually smells like a chicken coop. Yep, that’s how it is. I enter a zone. I eat at random intervals. I don’t shave. I live that case.

Try it for your next trial. Take the phone off the hook and take the file to a place where you can be alone with it. Study it. Prepare. You’ll discover a new meaning of ready for trial.

By the way, here are some essentials for my particular war room:

• a standing desk (preferably with a cork surface. It’s quieting, and it’s soft to rest your elbows on. Plus, it’ll make you feel like Proust.)
• ample Topo Chico
• string cheese
• legal pads
• Pilot G-2 gel pens
• highlighters
• a seating area with a laptop
• a redweld with sufficient manila folders to accommodate all of the witnesses
• licorice!
• a kettlebell
• and, of course, a pocket full of shells.

What’s in yours? Tell me in the comments below.

Let me begin by saying that I find the concept of “drinking” whisky to be misleading. The drinking of the elixir is merely one small aspect of its enjoyment. Whisky is a companion that appeals to all of the senses and sensibilities. The following is my process.

The first thing to do on a whisky-blessed evening is admire the silhouette of the bottle. Some bottles, like Scapa’s, are breathtakingly elegant. Others, like Jura’s, are squat and serious looking. I like to think that the shape of each particular whisky’s bottle is no accident, that someone at some time in the history of that particular distillery gave consideration to the bottle and determined that that particular shape, whatever it is, best captures the character of their particular malt.

Next, pour a glass and admire the whisky’s hue. [I know that some distilleries artificially color their whiskies. This doesn’t bother me much. Again, I like to think that thought was given to way the whisky presents in-glass.] I won’t, here, talk about whisky glasses. The buying of whisky-specific glasses seems overly-burdensome and expensive. Experts will tell you that the best glass is one that curls slightly inward at the top, to capture the scent. No doubt this is true, but don’t let the absence of the perfect glass stand between you and a good dram. Use whatever you have at hand. I use a red wine glass.

Following the pour, swirl the whisky to loosen it a little and release some of its odors. Many whisky drinkers add a touch of purified water to unspool the aromas even further, but I don’t. Although the addition of water is preferred, it’s more effort than I’m willing to bear. Whisky drinking should be the opposite of tedious. I drink my whisky neat.

Over the course of the next several minutes, sniff the whisky as it opens. Nosing the glass is the most important part of the whisky experience. The dram reveals itself to you over time. In The Glenlivet 12 year for example, initial sweet notes of apple give way to undertones of small-flower-earthiness. In the Lagavulin 16, an initial sharp astringency succumbs to a dark smokiness.

After some time nosing, take a sip and let the liquid roll over your tongue. When you do this, attend to how it affects your various taste buds. Initially, it will burn, but don’t swallow. As with the nosing, let it reveal itself to you. You will begin to taste new flavors under the initial sensation of alcohol. What are they? Vanilla? Smoke? Wood? Try to catalogue them. Like the carefully selected tones in one of Takemitsu’s chords, appreciate how they work together to make something unexpectedly beautiful.

After you swallow, pay attention to the finish. How long does it last? What is its flavor legacy?

That’s my approach. I drink whisky not as an escape, but as a reminder that there are things in this life that we should embrace.

Steve Martin is a banjo virtuoso. Yes, that Steve Martin. He’s also an extremely knowledgeable art collector. And an author. And a playwright.

He is interesting. He is Steve Martin.

I’ve never liked how we Americans identify so closely with our professions: I’m an actor, I’m a lawyer, I’m a teacher. Whatever. That’s not interesting.

You’re not a lawyer. You’re [insert name here], and one of the things that you may happen to do is practice law.

But that’s not all of you.

Slate has run an interview with law professor John Pfaff, who suggests that, contrary to popular belief, America’s mass incarceration problem is not a result of the war on drugs or longer prison sentences, but that, rather, it’s the result of prosecutors charging more felonies than they used to. [According to Pfaff, between the years 1994 to 2008, the probability that a district attorney would file a felony charge increased from 1 in 3, to 2 in 3.] Pfaff doesn’t know the reason for the increase, nor does he know how to combat it. This brings up some interesting questions.

First, why are prosecutors charging more cases these days? Well, why not? With a national plea rate in excess of 90%, it’s painless. It makes good political sense to indict 2 in 3 cases if you know that they’re both likely to plead. That way you can be “tough on crime” and lazy at the same time.

Second, how do we discourage prosecutors from bringing too many charges?  It seems to me that taking more cases to trial would help. If prosecutors expect the cases that they indict to be tried instead of pled, they’re much less likely to pursue weak cases or cases with unserious charges. This will have the laudatory effect of both minimizing the risk of innocent people going to prison, as well as making sure that our prisons only hold people who really need to be there.

Of course, legislatures can help with this by jettisoning the draconian drug sentences that exist in this country, and replacing them with sentences that are reasonable. After all, it’s longer sentences that compel defendants, even in cases where the evidence against them is weak, to plead guilty. If, however, the sentences were such that going to trial were more frequently worth the risk, more trials would happen, forcing prosecutors to prioritize. That would get the charging rate back down to 1 in 3 pretty quickly, I bet. And maybe it won’t even be that much longer before the United States no longer has the largest prison population in the world.

What do you think?

I went to law school knowing that I wanted to try cases. That’s all I wanted to do. I knew there was money, big money, to be had in transactional work – negotiating contracts, etc., but I didn’t care about that. I wanted the battle.

Luckily, I was in Chicago, and so I was able to observe many great trial lawyers. And here’s what I noticed: I wasn’t like many of them. I wasn’t loud or outgoing. I didn’t have what seemed to me to be an almost pathological need to impress people (one lawyer’s waiting room was wallpapered with news articles about his courtroom victories, another’s office was covered in drawings of himself arguing cases). Instead, I was quiet and reserved. Those lawyers mistook my introversion for shyness, and decided that they didn’t have any use for me.

I was angry and upset about their rejection for a while, but then I just forged on ahead because I knew I’d make a great trial lawyer. I was right. Despite what those guys must have thought, I haven’t collapsed in tears or passed out during a trial yet. Not even once. I’m an introvert. That doesn’t mean that I can’t perform. It just means that I’m not going to get all in your face about it.

I’ve been thinking about this because I was listening to an interview with Slash the other day and he mentioned not liking to sing or promote albums and it hit me: He’s an introvert, like me. And he’s awesome.

I imagine that when Slash gets on stage, he feels much like I do when I start a trial. I enter a kind of Avatar State. Some usually dormant part of me comes to life and fills me with energy and I can just do it. I get activated. And then I go home and don’t feel the need to prove anything to anybody until the next trial.

I mean, here’s how I see it: there are Chopin fans and there are Liszt fans. You can admire and respect them both, but if you listen to them long enough you’re going to be drawn to one or the other.

Those Chicago guys were Liszt lawyers, full of bombast and flash. That’s fine, but it’s not for me. I’m not interested in dazzle.

I prefer Chopin. On first listen, maybe his music doesn’t grab you in quite the same way that a piece celebrating Mephistopheles might, but something about it keeps you coming back, and you start to hear more and more, and the profundity of what you missed in those early encounters – because Chopin didn’t come right out and tell you about it – starts to be revealed.

Don’t get me wrong: I don’t have anything against those extroverted Liszt lawyers. Many of them are great, and their Steve Vai brand of showmanship can get results. But if that’s not who you are, don’t worry about it. The courtroom is just another stage, and there’s a place for the Slashes and the Chopin lovers, too.

Hat Tips

Howard Stern interviews Slash (YouTube)

Velvet Revolver: She Builds Quick Machines (YouTube)

Chopin v. Liszt: “If Liszt, in his early opera paraphrases and etudes, seems like Samson pushing down pillars, causing the whole temple of conventional pianism to tumble in cascades of falling figuration, piano strings quivering, Chopin is more like Solomon reaching out for one of the Queen of Sheba’s more exotic perfumes, nostrils quivering with the intoxicating, heady harmonies.”

Liszt: Mephisto Waltz No. 1 (Spotify) 

Chopin: Prelude in F Sharp Major (Spotify)

Big Money (YouTube)

Judges should abandon stare decisis and welcome the citation of non-legal texts in attorney briefs. The power of an argument derives from the quality of its reasoning and, to a degree, its poetics. There should be no power in its “position,” such as the fact that it originated in a court. The benefit of being on a court should consist solely in the fact that judges enjoy prominence in our society and, as such, their words garner more attention than those of other citizens. Judges’ words should be given no additional power simply because of the judge’s title.

The Ancient Greeks understood this. Cleon was more prominent than Diodotus, but his argument, being barbarous, failed. On the other hand, Pericles was adored, not because he was an important figure in society, but because he was a clear and eloquent thinker.

I recognize that becoming a judge is difficult. It suggests a level of persistence, intelligence, integrity, and wisdom that is uncommon in most people. It suggests this; it doesn’t guarantee it. William Rehnquist was Chief Justice of the United States. He was also a drug-addicted hypocrite whose judicial philosophy was to decide cases according to his personal prejudices. His First Amendment jurisprudence made that plain. I say good riddance to William Rehnquist. Stare decisis, however, says Rehnquist lives.

Of course, if a judge’s opinions are worthy of guiding us beyond their authors’ corporal lives, that’s fine. There have been great minds in the American judiciary (Brandeis and Holmes come immediately to mind) whose opinions are deserving of special and continued consideration. But such minds are rare. We should not pretend that every judge is of such caliber. Yet that is how stare decisis works; James Madison’s and Jean-Jacques Rousseau’s comments are merely “persuasive,” while Warren Burger’s and Sandra Day O’Connor’s are “binding.” This is ludicrous. [Ironically, Justice Thomas might agree with me.] Instead of following people just because they happen to be a judge, let’s treat nothing as binding and everything as persuasive. The question then becomes what is most persuasive.

But what about predictability? Won’t unmooring the courts from precedent result in chaos? No. Abandoning stare decisis will not untether courts from the pursuit of reason and truth. These things are timeless. They will forever form the basis for all quality opinions, legal or not. By abandoning stare decisis judicial legitimacy and consistency will come not from adhering to a rule simply because, good or not, some prior court said it was the rule. Rather, it will derive from the repeated application of the best rules simply because they have proven to be the best rules.

This is, in fact, what happens anyway. Courts part with precedent when it’s obvious that they must (Dred Scott no longer controls, thank god), but this process takes too long. It results in bad opinions having an unacceptable level of control over our society. It also discourages diligent attorneys from mining mankind’s vast, non-caselaw-related, intellectual riches for gems.

So, let’s abandon stare decisis. Let our jurisprudence be guided by bright lights of thought wherever they may be found. Let the grip of mediocre opinions written by lesser jurists retire when their authors do.

Jury nullification occurs when a jury decides to ignore the law. Why would anyone ever want a jury to do that? Well, there are a lot of unjust laws out there. What is an unjust law? According to Martin Luther King Jr. (via St. Augustine), an unjust law “is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

Even though I know that Justice Scalia rolls his eyes any time someone utters the phrase “natural law,” I’m going to talk about it anyway. The fact is that some pretty bright and historically significant people have relied upon natural law. Martin Luther King was one of them. Thomas Jefferson was another. Gerald Ford was still another.

What I would expect any judge to be even more uncomfortable with than allowing natural law arguments in courtrooms, is the continuing practice of not allowing them, as that seems to infringe upon one of the central principles of a defendant’s right to due process: the right to be heard.

The most sacred of interests, a person’s liberty and reputation, are at stake in criminal trials. As such, we must be certain that all possible arguments in favor of the preservation of each are allowed. If we do not empower jurors to at least consider the merits of a law which, at least in theory, they have already approved, then we engage in an exercise that is little more than a show trial. This may go a long way toward satisfying our desire for expeditious process, but it must go a very little way toward satisfying our demand for justice. It is not enough to merely apply the law. We must also inquire into the law’s morality. Dred Scott, let us never forget, was once the law.

When we consider that the United States “has less than 5 percent of the world’s population, [yet] has almost a quarter of the world’s prisoners,” how can we deny that many of our criminal laws remain deserving of whatever scrutiny is available? Such a prison population represents a failure of democratic government and the jury trial, which is perhaps one of the purest forms of democracy devised, is a way to fix it. By preventing arguments on nullification, however, the courts do not allow for meaningful trials. Instead, they are content to send millions to prison who may be factually guilty, but morally innocent. That is shameful.

It’s not the end, it’s only the beginning. And Dad, I’m coming home.

I don’t want nobody to be bitter. Te quiero mucho.

Just so you know, I am an innocent man. But, I hold no grudges. In fact, I would like to tell Mr. Richard I appreciate all he has done for me. I love you sis.

I’m sorry for the victim’s family. I wish I could make it up to them. The truth is, I did not know the man but for a few seconds before I shot him. He deserved better.

This stuff stings, man almighty. Then again, I can feel it, taste it, not bad.

Texas Rangers, Texas Rangers. I am a miracle. One more thing, Viva Mexico.

Everyone changes, right? No cases are error free.

I am disappointed by the courts. But that’s O.K. I just played the hand that life dealt me.

You should continue with criminal law. It’s your decision; they need lawyers out there that will fight. Also, thank you for your hospitality.

I have no hate toward humanity. I deserve what I am getting.

Where’s my stunt double? I am not as strong as I thought I was going to be. Bye bye peanut. To the moon and back.

Today is a good day to die. There’s really nothing more to say.

No.

The American criminal justice system is a national disgrace. Simply put, there are way too many people in prison. There are more prisoners in the United States than there are in China, even though China has four times our general population. In fact, 25% of all of the world’s prisoners are incarcerated in the United States.

There are a few reasons for this. One, of course, is that prosecutors have too much power. They have it because judges allow them to have it. Judges have proven unwilling to restrain prosecutors – after all, every one of the roughly 1.6 million people (that’s about the population of New Mexico, by the way, 1 in 100 Americans currently behind bars was sent there by a judge – and so the only possible check on America’s epidemic of mass incarceration is us: the defense bar.

And yet, according to the Supreme Court’s 2011 decision in Missouri v. Frye, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Of the remaining three and six percents respectively, I suspect that the majority go to bench, and not jury, trial, meaning that the jury trial has virtually disappeared from the American criminal courtroom.

So, whatever the problem is with our justice system (and I tend to think that a country that locks up one in 100 of its citizens has a problem), it’s not that the defense bar is trying too many cases. On the contrary, perhaps we’re trying too few.[Before I go further, let me make clear that no, I’m not telling you to try every case. In some cases (in fact, probably in most cases), going to trial is a bad idea. I suspect that it’s a good idea in more than the small percentage that actually make it to trial though.]

Here are three reasons to answer ready for trial.

Reason 1. Trials Publicize Injustices