When trivia is not trivial

Woodrough640x800The Federal Judges Association, which is the union I belong to, sent out a message today keeping we unionists informed on all manner of things that may impact the brotherhood and sisterhood. On a “light” note, the message ended with “TRIVIA.” In part, it read:

Who has been the longest serving federal judge in U.S. History? Joseph William Woodrough served as a district court judge in the District of Nebraska from 1916 until 1933, and as a circuit court judge in the Eighth Circuit from 1933 until his death in 1977–spanning a period of more than 61 years!

The judge was born in Ohio in 1873, was educated at Heidelberg University in Germany, read law, served as a prosecutor and judge (at age 22) in Texas, and practiced law in Omaha, Nebraska from 1898 to 1916 until he was nominated by President Woodrow Wilson and confirmed by the Senate in 1916 to serve as a district judge. More than six decades of federal judicial service followed. The judge’s service may now be trivia to some, but it certainly was not, and will never be, trivial.*


*For more on the judge, see our archives.  The judge was a highly regarded trial lawyer at the time of his appointment to the federal bench.  As a contemporary wrote, “He tried single-handed many civil and criminal cases that won for him a statewide reputation.  . . . He is one of the most agreeable lawyers that I have ever opposed in the trial of a lawsuit; being pleasant and agreeable, both to the court and the opposing counsel.” Ed F. Morearty, Omaha Memories (Schwart Printing 1917).














Raising the bar for retained counsel in federal criminal cases

Two things came together recently to prompt me to think about the practice of federal criminal defense by retained lawyers.

First, our Federal Public Defender hired Jessica to become an AFPD. Jessica initially practiced as a criminal defense lawyer in Western Nebraska for several years. After that, she spent two years as a “fellowship attorney” with FPD where she learned the ropes of federal criminal defense from some of the best in the business. Following the fellowship, she resumed her private criminal defense practice in Lincoln where she established a reputation as a savvy and zealous practitioner.  When a spot opened up with the FPD, she applied and was appointed.

Second, as I contemplated my recent surgery, I was comforted by the fact that my surgeon was extremely experienced. Indeed, it was not until he was 37 years old that he completed his arduous fellowship training that in turn allowed him to call himself a thoracic surgeon.

Not for the first time, I wondered why it was then that any kid out of law school or any office-practice lawyer could wander into my courtroom and take a federal felony case to trial or plea as counsel for the defendant if he or she was retained to do so by the defendant. Not to put too fine a point on it, that’s crazy. Nevertheless, virtually every day we stand by and watch inexperienced lawyers muddle about representing people charged with federal felonies merely because they passed the Nebraska Bar exam and someone was dumb enough to hire them.

I propose that no lawyer be permitted to practice federal criminal defense law until he or she has been certified as sufficiently experienced to do so.  We have the authority to require compliance with such a rule. See, e.g., Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985) (upholding local rule requiring that a lawyer admitted to practice generally in the federal district court must also belong to the local federal “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case); ND.Ill.LR83.11. Trial Bar

And I particularly mean that such a prohibition should be applied aggressively to retained counsel. For our federal public defenders, and our Criminal Justice Act panel lawyers, we already have mechanisms in place to assure basic competency. For example, in Nebraska, one cannot become a member of the Criminal Justice Act Panel without approval of the CJA Panel Selection Committee consisting of judges, the FPD and the CJA panel representative. A similar screening process should be applied to retained criminal defense lawyers.

What do you think?






Bring me the head of Charlie Brown!

Image credit: Grooch (January 7, 2015).  Did you know that European Court of Human Rights in June of 2014 upheld France's ban on wearing full-face veils in public, rejecting arguments that the ban undermines freedoms of religion and expression. Ironically, it did so, because the Court concluded that banning Burkas promoted social cohesion in France. How's that for satire.

Image credit: Grooch (January 7, 2015).

Did you know that the European Court of Human Rights in June of 2014 upheld France’s ban on wearing full-face veils in public, rejecting arguments that the ban undermined freedoms of religion and expression? It did so because the Court concluded that banning the hijab promoted social cohesion in France. So much for France’s commitment to free expression (or the slightest understanding of irony).

On a more fundamental level, I have always thought that Charlie Brown was a whiny little bitch. Bring Me the Head of Charlie Brown, a 1986 short film, perfectly captures my sentiments.

Take a look:

Je ne suis pas charlie, and pass the Freedom Fries!


The news could not be better–no cancer found

Good news, very good news.

No cancer was found. While the VATS was not fun, the emotional relief flowing from the knowledge that I am cancer free overcomes any momentary lament about the physical impact of the procedure.

Two slight problems arose. A”drain,” a translucent “garden hose,” attached to a suction pump, was placed as a part of the surgery. It passed the (normal) build up of fluid inside the cavity after surgery to a pump and collection device outside the thoracic cavity. When it began to leak at the incision site used to place the hose, the repair required a new and extensive tape job to seal the garden hose as it passed through the incision and into the thoracic cavity. That little procedure will cause you to give homage to the manufacturer of Percocet and the physicians who cater to whimpering drug seekers like me. (Lord Lockwell, Gomer BlogER Places Bowl Full of Percocet in Waiting Room, Lowers Visits (January 31, 2014).

The other problem was a slight pneumothorax (a collapsed lung). That extended my hospital stay, but it is gradually resolving itself. Thus, I was discharged with the idea that leak will abate over time. Of course, I was given instructions to follow-up with the various physicians and surgeons.

I will not start back on my daily blog routine until around Monday, January 26, 2015. Until then, know that I am fine and look forward to world of blogging. And, I sincerely thank the many of you who have expressed your kindnesses about my health.

Back to sleep, am I.


Milk of amnesia*

Very early Friday (tomorrow) morning, I will head to the hospital for my VAT surgery. I am hopeful that three holes in my chest will suffice rather than cracking open the sternum and ribs. Of course, I am also hopeful that the subsequent pathology report will show the lymphoma is gone.

Last time they cut on me, the surgeon and his gas-man reported that during the procedure I questioned them about whether I was dead. They thought that was hysterically funny. When, in response, I asked them for copies of their malpractice policies, they STFU.

This time around I am demanding Propofol with a chaser of Fentanyl. Happy days are here again!

I will be off-line until I sober up. That will be at least several days.


* If you loved Robin Williams, as I did, but you weren’t a huge fan of Michael Jackson, take a look at the following clip from the start to about 47 seconds regarding the utility of Propofol.

Mindy and the proud butcher.

This week a fairly rough-looking guy got through the secure door to the hallway adjacent to my office by following another judicial assistant through the door as she waved her card by the electronic reader. He was powerfully built, shaved but with plenty of stubble, and he wore a black leather jacket that covered, incongruously, a shirt and tie. He asked Kris, my assistant, whether he could talk to me, adding that I had sentenced him to 10 years in prison a long time ago.

Kris came back and explained the situation. She was visibly nervous. She asked what she should do–that meant, “shall I push the magic button that calls the USMS in full tactical gear.” I said no.

I went out to the reception room, and the fellow gave me his name. He was smiling, and perfectly pleasant. I invited him into my inner office and we sat down. To my utter amazement, he said he had come to thank me for sending him to prison for 10 years. He told me that he had made the best of prison, and now owned an interest in a successful meat market. He was the proudest butcher I have had the privilege of meeting.

This fellow especially wanted me to know how much he thought of Mindy. Mindy is a long serving pretrial services officer and had spent lots of time trying to keep the guy on the straight and narrow pending resolution of his case. Pretrial_seal_126h133vThe man raved about Mindy, attributing his success and change of attitude to her. He remarked about her kindness when his father died. He wanted me to know how much he appreciated what Mindy had done for him. With that accomplished, and taking a moment to speak with Kris about their joint interest in a strange-sounding Swedish meat dish, the fellow grabbed my hand, shook it firmly and left.

A few days later, I tracked Mindy down in her office. I told her of my encounter, and how the previous offender so appreciated what she had done for him. Mindy reminded me that he had been the enforcer for a drug conspiracy. I told Mindy that she must be very proud of what she had done, and I asked if could take her photograph for this blog. She politely declined, saying, “It’s not about me.”

Mindy was right. It is not about her. But it is also true that it would not have been possible without her.

Some things are more important than others. This true story about Mindy and the proud butcher is one of those things.


Some words mean the same thing like “Curmudgeon,” “Practicing Law,” and “Mark Herrmann.”

Mark Herrmann is a lawyer, and the best-selling author of The Curmudgeon’s Guide to Practicing Law, ABA Publishing (2006).  I was pleased when the publisher asked me to review the book, although I now see that I have taken on a daunting task.

Inasmuch as the book was first published in 2006, there are a lot of reviews of this book. So far as I can tell, all of them praise the book to high heaven. Indeed, when an organ of the Wall Street Journal says nice things about a lawyer’s book and then prints serial excerpts from it you know (1) someone paid someone else off or (2) the book is damn good. I have no concrete proof that Herrmann paid anyone off.

HerrmannWho the hell is Mark Herrmann?

First, it is obvious from his name that Herrmann, like me, finds his roots in the rich comedic soil of the “Vaterland.” Second, Herr Herrmann is a graduate of Princeton in 1979 and the University of Michigan Law School in 1983, n/k/a Harbaugh Hall. Third, Herrmann clerked for the highly regarded Judge Dorothy W. Nelson of the Ninth Circuit. After a stint at a relatively small law firm in San Francisco, Herrmann served as a trial lawyer and became a partner at Jones Day in Cleveland (the perfect places to hone one’s funny bone). He wrote this book in 2006, and not too long thereafter told Jones Day to shove it. He then became Chief Counsel and Litigation and Global Chief Compliance Officer at Aon, a provider of risk management services and other fancy stuff I don’t understand. He also took on the task of writing a column for Above the Law. See here for an example.

Sadly, this last New Year’s Eve, at an ATL party gone completely wrong, Herrmann died of an uncontrolled heart flutter. He did so while admiring the tattoos of another ATL writer, shortly after David Lat served him exquisitely aged cheese imported from beautiful Buffalo, New York. (I made up that last two sentences, I think.)

What the hell is this book about? Here is how a real curmudgeon, Scott Greenfield at Simple Justice, summarizes Herrmann’s book:

The Curmudgeon’s Guide is the sort of book that can be taken two ways. On the surface, it’s just a darn good guide to some very basic rules for being a good lawyer. Mark covers the essentials clearly and succinctly. While some might think this is some Biglaw roadmap only, it’s how every lawyer should do the job. These are the fundamentals of good lawyering that law school should, but never will, teach. That’s why we have guys like Herrmann to fill the gap.

But on another level, the subtle humor and good nature of its presentation was brilliant. For those associates who still watch Spongebob Squarepants, it probably won’t make a dent. You’re not ready for it. But for anyone who has shoes older than most first year associates, the wry wit that permeates the Guide will bring a twisted smile to your face.

It’s not laugh out loud funny. It’s the sort of humor one finds from having lived, watched and experienced years of young lawyers who think they know it all get the occasional well-deserved smack. Somebody has to tell them that they’re not as wonderful as their mommies have been assuring them all those years, and Herrmann does the job admirably.

Every law firm should have a partner like Mark Herrmann to mentor their youth and avoid the necessity of having to redo everything. There aren’t enough Hermann’s to go around, of course, which is why this Guide is so important. For solos, read it because nobody every told you how to be a lawyer. For Biglaw, buy a few hundred copies so you can hand them out to the next generation. Don’t buy too many, however, since there’s no telling how long you’ll be around and it would be a shame to waste them.

Greenfield is dead on.

By the way, I used a block quote from Greenfield–I didn’t break the quote into separate parts of 49 words or less. Admit it, you didn’t read it! Don’t lie. You didn’t read Greenfield’s f…… summary of this book that I so carefully selected in an effort to educate you young and dumb SOBs. Lazy little beasts, all of you!

In the book, Herrmann warned me that you wouldn’t read a block quote. And, he wrote many additional truths in the very first chapter of his book, “How to Write: A Memorandum from a Curmudgeon.” Every young lawyer should memorize those instructions. Next, each special snowflake should read, “How to Fail as an Associate,” detailing the top ten things that will assure doom. The remainder of the book proceeds apace full of elegantly simple but superbly smart advice written in an amusing tone.

For older lawyers, the book is extremely useful also. It is a mentor’s guide to mentoring. Beyond that, it will show you how to screw with the fragile minds of associates in ways that are fun in a knee slapping Germanic sorta way.

Despite being penned in 2006, the book is timely and will remain so as far into the future as I can see. Just ’cause I’m old, don’t discount my abilities as a futurist. I was an early adopter, and remain a committed user, of IBM Mag Card Selectrics.  (Admit it: You have no idea what they are. See!)

In short, if you want to become a real lawyer (or mentor a young’un to become one), and you really don’t know how, then this is really the book for you. Really, I’m not kidding. But, what the hell do I know? Really!


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