From Simple Justice: Talking about race

Over at SJ Scott writes a post entitled Why You Can’t Talk About Race (Or Anything Else). It is worth reading and I suggest that you do so. The essential thrust of Scott’s tough piece is this:

Stop the whining, the crying, the self-serving sensitivity and the narcissistic presumptiveness that you are entitled to decide the rules of life for others because they’re too feeble and delicate to speak for themselves. Show them the courtesy of being real people by treating them like real people.

We need to talk. If you can’t handle it, then move aside and let the grown-ups do it. And stay out of the way.

I agree entirely with what Scott wrote. But, I have an honest concern.

There are more than a few adult white people (like Scott) who see and will treat black people like real people. But, if we have a real conversation between grown-ups then black people need to approach the conversation in the same way.

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Ultimately, we would get down to the issue of class and throwing away the lives of young black men in prison. What concerns me is that if we have that conversation the “real people” opposite must be willing to accept some horrible truths. I am not at all sure that the vast majority of “real” black people are ready to truly grapple with the truth as it regards class. But, then again, I am a racist old white man with a nasty history of sending legions of young black men to prison without so much as a blink.

RGK

A to and fro with Scott Greenfield at Simple Justice on the question of bail

Image credit: domainstick.com

Image credit: domainstick.com

Yesterday,  at Simple Justice, Scott wrote about an op-ed piece in the New York Times authored by a lay person (whose biography is lefty)  that advocated that bail should never be required. Apparently, the use of bail, particularly in the New York state courts, remains ubiquitous. Unlike the author of the op-ed piece, SHG unpacked the use of bail with his customary brilliant blend of cynicism and realism.

Anyway, I wrote a comment and the following to and fro resulted:

Me:  According the NYC Comptroller, it costs $96,232 per inmate per year at Rikers. While the federal system (Bail Reform Act of 1984) is hardly perfect, the preference for release and then supervision by pretrial service officers under strict conditions is a decent model. I can’t remember the last time I saw a federal case in our court where bail (money) was required.

Of course, we also engage in outright “preventive detention” which is an anathema to many. That said, there is a certain honesty required by having to state the reasons the judge is detaining someone, even if that explanation is contained in “fill in” the blank form.

By the way, I did a lot this type of work while serving as a Magistrate Judge for five years. On the other hand, I don’t know a damn thing about New York.

Scott:  The quantity of drugs in SDNY and EDNY tends to make the detention presumptive, and rarely can a defendant overcome the presumption. I really hate that.

On the other hand, I love PRBs with a couple of FRPs. That preserves the pool of resources available for counsel.

Me:  Re: drugs in SDNY and EDNY:

In terms of drug cases, measured on a per judge basis, for the period ending September of 2014, our per judge felony criminal caseload was 228. SDNY’s number was 64 and EDNY’s number was 81.

We ranked 7th in the nation and 2nd in the Circuit. From 2008 to 2012, drug convictions comprised the largest portion — 46 percent — of criminal convictions in federal court in Nebraska, according to a U.S. Sentencing Commission report. Of that, about 58 percent of Nebraska’s federal drug cases involved meth — more than 40 percentage points above the national average.

Out here, in a drug case, the trick is to see the pretrial services officer quickly to propose a release plan. That gives the officer time to investigate it, so the MJ can, armed with the release plan, say the presumption is overcome and he or she can do so with a straight face. The defendant may be detained initially, but reviews of detention are freely given.

Scott: I was previously unaware of the correlation of living in Nebraska and meth, but it makes perfect sense. [Zing]

Scott: [Referring to an earlier post of mine] But DRUGS and crack whores. Sorry, Judge Kopf, but I just couldn’t restrain myself. [Zing]

Me:  I have a special affection for “crack whores” but not in a PERV way.

There is both substance and gallows humor in the foregoing exchange. That is why I pass it along to you. On the other hand, it might just be babble.

RGK

 

Critical advice for young solo criminal defense lawyers

If you recently opened your own shop after graduating law school and you desire to make a name for yourself doing criminal defense work, I urge to read Scott’s post today at Simple Justice entitled David Aylor, The Other Shooter. It speaks to your dreams of getting the “big” case, thus marking your territory as a player.

I could add some things to Scott’s post–like a reporter is never your friend when he or she interviews you on the record for a story–but any contribution of mine would be of the marginal variety. Read Scott’s post, it is full of practical and ethical advice on taking a “big case” and speaking out publicly about your ticket to fame and lucre.

RGK

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!

RGK

A MOMENT OF SJ

Scott Greenfield is not into self-promotion.  That is not him. Moreover, he doesn’t need it. But, I noticed something very interesting on Simple Justice recently. Off to the right side under the heading “A MOMENT OF SJ” is a link to a series of videos featuring SHG on a variety of subjects. They were produced by Lee Pacchia at Mimesis Law.

Although Scott has never mentioned these interesting oral essays on his blog, I urge you to take a look at them.They are extremely well done. More importantly, and to use a phrase SHG likes, “they make us less dumb.” Indeed, each of the 12 essays are thought provoking. Number 12, dealing with law schools, the excessive number of law students, and the health of the legal profession is my favorite. Scott uses the word “toilet” and I like that!

I have only one complaint. At times, SHG appears in a tweed (I think) sport coat (e.g., video 5). That deceives my old eyes into thinking that Scott is wearing fabric infused with atomic number 10 neon.

RGK

Naked mud wrestling–and a challenge to Professor Kerr

Professor Orin Kerr and I got into a “naked mud wrestling match” according to Scott Greenfield over at Simple Justice. We were arguing about whether Rodriguez v. United States (a case from the District of Nebraska) was worth consideration by the Supreme Court. Kerr thought it was, and I thought it wasn’t. See the exchange in the comment section between the good professor and yours truly regarding Scott’s post entitled Puppy Time At The Supreme Court. Then read SHG’s follow up post today entitled Doctrine v. Realism: Naked Mudwrestling At Its Best.

I don’t know about Professor Kerr, but I will not wrestle him in the nude. But, I would take him on if I could wear my tighty whities.

Photo credit: pbase.com

Photo credit: pbase.com

So, if Kerr is up to it, I offer to wrestle him in the mud at the venue of his choice. Perhaps at the GW Yard near where Professor Kerr teaches law.

Photo credit: George Washington University, pursuant Creative Commons Attribution 3.0 Unported license. The image has not been changed from the original. (George Washington's University Yard, Lerner Hall, Stockton Hall, and the Burns Law Library, respectively._

Photo credit: George Washington University, pursuant to a Creative Commons Attribution 3.0 Unported license. The image has not been changed from the original. (George Washington’s University Yard, Lerner Hall, Stockton Hall, and the Burns Law Library, respectively.)

Come on Orin, whad’y say?*

RGK

*Professor Kerr is a smart guy who is highly respected. I hope he has a sense of humor. By the way, if he gets to see me in my shorts, I dare him not to laugh.

 

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