2016.034: It Is About the Truth

Remember, it is not what you think about the Super Lawyers program, it is about what the potential client thinks!

Thus spake Bart Taylor, trying to sell advertising in the Super Lawyers online directory in an email purporting to come from Houston PI lawyer Randy Sorrels:

Bart Taylor Email

Lots of lawyers seem to agree with Bart. As exhibit “A,” I would offer the trumpeting of bullshit “Top 100 Lawyers” “honors”:

Here’s Jim:
screenshot-2016-09-15-17-57-27(Jim says that this website listed him and this “honor” without his consent. So here’s his Avvo page:screenshot-2016-09-15-17-59-00Hmm.)

Grant:screenshot-2016-09-15-12-43-14

Phil:

screenshot-2016-09-15-12-45-45

Joe:screenshot-2016-09-15-12-44-06I have nothing against Jim, Grant, Phil, or Joe. I like them all, and have found them to be smart, generally ethical lawyers,1 but they are playing with fire here. Because lying in advertising is pretty much frowned upon, not only by me, but also by the State Bar. I hope this post will prompt them all to return to the ethical fold.

The “Top 100” are not “the top 100 trial lawyers” (as Jim and Grant claim) “the top 100 trial lawyers in Texas” (as Phil claims) “the top 100 trial lawyers in criminal law” (as Joe claims) or even the top 100 trial lawyers in criminal law in Texas.

The “Top 100” are the top 100 lawyers willing to pay $350 to the “National Trial Lawyers” for the privilege of lying to potential clients about the ranking in a geographical area specifically gerrymandered to contain 100 or fewer such lawyers.

A lawyer would have to be stupid not to know this, and none of these guys are stupid. All of them know that they haven’t been named “one of the top 100.” Yet they advertise that false claim, perhaps because they, like Bart, think it is not what you think about the honor, it is about what the potential client thinks.

But that’s crap, of course. Because unlike marketers, lawyers have ethical rules we have to follow. And if we know that an honor is bought-and-paid-for bullshit,2 we have a duty not to mislead the public.

I’ll go farther: We have a duty to not be ignorant about the claims that we make about ourselves.

And of course we are responsible for things done on our behalf as though we had done them ourselves.

So the marketers say “all that matters is what the potential client thinks.” This is a siren song — who doesn’t want clients thinking of him as one of the top 100 lawyers? — that we must resist. For if the potential client thinks our marketing means something that we know it not to mean, we are deceiving him.


  1. I’ve even listed Grant in my 10-of-the-best list

  2. Super Lawyers, for all its faults, is not bought and paid for — I’ve yet to buy the advertising Bart is selling. 

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2016.033: Trial Theory (Part Two of Several)

In Trial Theory I I concluded:

Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.1

Blockbuster evidence in this context has a technical meaning: it is evidence that is:

Dispositive;

Incontrovertible; and

Unforeseen.

If the you or the State has primed the jury to expect the evidence, it is not unforeseen. If other evidence contradicts the evidence it is not incontrovertible. And if the story of the party who the evidence seems to disfavor still makes sense when the evidence is considered it is not dispositive.

Let’s work our way back through the trial to see how the theory works.

Jury Deliberation

In jury deliberation, the jurors tend to go back and take a first vote. Then they work their way to a verdict. The way the initial split goes (toward guilty or not guilty) is almost always the way the final verdict goes. If you have seven jurors when the jury goes out, your client is probably going to be acquitted, or the jury hung. If the state has seven jurors at the first vote, your client is probably going to be convicted (or the jury hung). What changes minority jurors’ beliefs is not the weight of the evidence, but the weight of the personalities against them.

The evidence and the law are important not because they are going to change jurors’ minds but because they are going to give jurors face-saving reasons to change their minds.

Closing Argument

In closing argument, then, we remind our jurors of the evidence and the law to which they can cling to preserve their own beliefs (preserving a hung jury if our jurors are in the minority) and to which they can point to give the other side’s jurors an excuse to change their beliefs (getting to an acquittal if our jurors are in the majority).

The Jury Charge

The purpose of the jury charge is to set before our jurors the law to rationalize their beliefs and to give their jurors a face-saving reason to change their beliefs.

The Evidence

The presentation of evidence serves two purposes. First, it gives our jurors—those who believe our story—ammunition to use in the jury room to resist the weight of personality arrayed against them, or to give the government’s jurors a face-saving reason to vote for acquittal.

Second, the presentation of evidence makes it possible for us to give the government’s jurors blockbuster evidence that they have not been primed to expect, which might change their minds. At the same time, defensively, we want to keep the government from introducing blockbuster evidence that might actually change our jurors’ beliefs.

How is any of this different than the traditional?

The presentation of evidence, the wrangling over admissibility, and the closing arguments under this model look just like the same procedures under a more traditional model (in which we pretend that jurors don’t actually make up their minds until deliberations).

Opening Statement

What about opening statement? In opening statement, we tell the jury what they should believe. Nobody is going to believe something just because a defense lawyer tells him to. So the jurors’ beliefs, in this model, are formed in jury selection and affirmed in opening statement.

Jury Selection

In this model, jury selection is everything. In jury selection, the jury, given the parameters of the accusation (the elements and, at least in hypothetical terms, any major issues), comes up with the defense (perhaps among other possible defenses), and in opening statement you confirm that that is your defense. Roughly, in voir dire this would happen:

You: How could someone charged with this crime in hypothetical circumstances like this not be guilty?

Jurors: Maybe because X, or Y, or Z.

And in opening statement this would happen:

You: You’re right, jury. Y. And here are the facts that back that up.

If the jury didn’t come up with your defense in jury selection, it was a lousy defense.

Treating jury selection like it’s all that matters doesn’t preclude treating opening statement like it’s all that matters, treating your objections to the government’s evidence like they are all that matter, treating your cross-examination of the government’s witnesses as all that matters, treating your presentation of evidence as all that matters, and treating closing argument as all that matters.

But if you don’t win your case in jury selection, at best you have an uphill battle to win the case in the end.

(That’s why you should come to TCDLA’s voir dire seminar in Dallas next Thursday and Friday.)


  1. This is not entirely correct. There is something else that will change jurors’ formed beliefs. I’ll talk about it in another part of this discussion. 

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2016.032: Safe From Suit, But Not From Prosecution

…That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the Vietnamese Communists.

. . . . .

In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant’s father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.

From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic].” These articles were also disseminated to Vietnamese groups and over the internet.

Appellees win: Appellant had failed to provide “clear and specific evidence that the
statements of which he complains were published with actual malice….”

While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals — Justices Martha Hill Jamison, John Donovan, and Marc Brown — in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.

Section 33.07 forbids using someone’s name online without his consent with intent to harm him.

The appellees’ speech in Hoang v. Nguyen — articles about Mr. Hoang disseminated over the internet — used his name online without his consent with the intent to harm him.

So while Thoi Bao and Mr. Nguyen are protected by the Texas Citizens Participation Act from frivolous lawsuits such as the one by Mr. Hoang (who will be paying my fees), they risk felony prosecution under Section 33.07 whenever they write something unfavorable about Mr. Hoang (or anybody else). And under Section 33.07 neither the truth, lack of actual malice, nor opinion is a defense.

Even if they write what they know to be the truth, they may face felony prosecution. They will have to go to trial to make an as-applied challenge to the statute (it is unconstitutional as applied to them) and nobody but them is going to pay my fees when we win.

(Part of the court’s reasoning in Stubbs was that prosecutors haven’t used 33.07 to prosecute newsmen for criticizing public officials, but prosecutors’ noblesse oblige is not part of the overbreadth analysis. That the Harris County DA did not come to the aid of her Republican brother does not mean that future DAs will abstain as well.)

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2016.031: Trial Theory (Part One of Several)

To know what to do at any point in a jury trial, we must have some theory of how the parts of the trial fit together.

In a felony jury trial with twelve jurors (and the requirement of a unanimous verdict) there are 4,095 permutations of verdicts that do not involve our client going to prison.1 There is only one permutation that convicts our client. If each juror’s verdict were independent of the others and there were a 50% chance that each juror would convict, there would be a 1 in 4,096 chance of a conviction.

But jurors’ verdicts are not independent—one juror’s verdict will affect another’s—and the chance that any given juror will acquit is not necessarily 50%.

Our goal as criminal-defense lawyers is to keep the government as far as possible from that one permutation that convicts our client. To do this we need to recognize how jurors’ verdicts are dependent on each other, and how each juror reaches a verdict.

Many trial lawyers believe that every trial is won or lost in jury selection. Modern research into human cognition suggests that once a person forms a belief, it is very difficult to change that belief. Mere evidence will not suffice to change a normal person’s belief; she will disregard evidence that contradicts her beliefs and will magnify the evidence that supports her beliefs. This is called confirmation bias. Other biases act toward the same goal: to lock a person into her initial belief.

While we make jurors promise to consider all of the evidence before reaching a decision, there is very little evidence that they actually do this.

Research with mock juries suggests that how the jury is split when it goes out predicts the verdict. A jury that is 7–5 for conviction on the first ballot will most likely convict or hang; a jury that is 11–1 for conviction on the first ballot will almost certainly hang. A jury that is 6–6 or better for the defense on the first ballot will likely not convict. It appears that it is force of personality, rather than quality of evidence, that determines whether jurors will change their minds.

So we want to have as many jurors as possible on our side when they go out (we don’t want our defense to depend on beliefs formed in the jury room), which means that we want to have as many jurors as possible on our side as early as possible.

How early is “as early as possible”? Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.

 


  1. Each juror’s individual verdict can be either “guilty” or “not guilty.” The combined verdict of the entire jury can be expressed as a 12-digit binary number, with each bit representing one juror’s vote, 0 for guilty and 1 for not guilty. There are 212 = 4,096 12-digit binary numbers. Only one of them, 00000000000, or 0, is a unanimous guilty verdict. 

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2016.029: Thank You

You may have noticed that I’ve added a widget to the right-hand column of “Cool Things I Really Like.” It’s stuff that I buy for myself, and can get more of if you use the links (or, with UberEats, the code “eats-nw0pp) to buy something for yourself.

I just added a link to Nootrobox. I chew their GoCubes, which are coffee (with other sparkly ingredients) in small gelatinous cubes. They’ve got other nootropics as well, and if you are interested in biohacking they have a lot of interesting stuff to read on their website.

Thank you especially to those of you who have ordered custom shirts from Original Stitch. I hope you enjoy wearing them, and think fondly of me when you do. I’ll think fondly of you, whoever you are, for helping fund my custom shirt habit.

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2016.028: Capital Murder and the Law of Parties in Texas

I wrote yesterday about Texas’s Law of Parties, and how it is different from Texas’s Felony-Murder Rule. An observant reader emailed to ask:

What about Enmund  v Florida?

An excellent question. In Enmund the U.S. Supreme Court reversed Mr. Enmund’s death sentence because he “d[id] not himself kill, attempt to kill, or intend that a killing take place or that lethal force w[ould] be employed.”

So how is it that Wood, who according to Hedayati “had no reason to anticipate” the killing, got the death penalty?

Because the jury found otherwise.

The law when Wood was prosecuted, as now, was that if a person was convicted of capital murder and the State sought death, the jury had to be asked:

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

If the answer was “no,” the defendant was not death-eligible.

So a properly charged jury in Wood’s case must, in order for Wood to be sentenced to death, have had to find beyond a reasonable doubt that Wood at least anticipated that a human life would be taken.

And the jury was properly charged.

So before Wood was sentenced to death a jury found beyond a reasonable doubt that, at the very least, he anticipated a killing in his escapade with Reneau.

I don’t think the State should be in the business of putting people to death. But neither do I think it acceptable for a lawyer to spread untruths to get people to oppose the death penalty. And when Hedayati writes:

[N]eglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

That’s just untrue.

Spreading untruths for a political end is not just wrong; it’s also counterproductive. It gives ammunition to your political opponents (Look! He is so wrong he has to lie to try to win!) and it alienates your honest allies (Hi!).

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2016.027: Law of Parties and Felony-Murder Rule

Wood was convicted and sentenced to die under Texas’ arcane felony-murder law, more commonly known as the “the law of parties” — for his role as an accomplice to a killing, which he had no reason to anticipate.

(Hedayati: In Texas death row case, punishment does not fit crime.)

That Wood “had no reason to anticipate” the killing should have prevented him from being convicted under a parties theory. Here’s the Law of Parties:

Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Texas’s Law of Parties is surely draconian. But it’s distinct from the Felony-Murder Rule:

Sec. 19.02. MURDER.

(b) A person commits an offense if he:

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Calling the Law of Parties the Felony Murder Rule makes people stupider. Where did Hedayati —described by his bio in the Statesman as an attorney, but not a criminal lawyer — get the idea that they are the same thing? My guess is Wikipedia, which until I edited it just now equated the two.

What’s more, Hedayati’s premise — that the Law of Parties required Wood’s conviction — is false: If it is true that Wood “had no reason to anticipate” the murder then it is not true that the murder “should have been anticipated as a result of the carrying out of the conspiracy.” He may not have anticipated it, but in order to convict him a jury found that he should (that is, had reason to) have anticipated it.

Hedayati goes on:

Under the law of parties, those who conspire to commit a felony, like a robbery, can be held responsible for a subsequent crime, like murder, if it “should have been anticipated.” The law does not require a finding that the person intended to kill. It only requires that the defendant, charged under the law of parties, was a major participant in the underlying felony and exhibited a reckless indifference to human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

Where he oversold the Law of Parties on anticipation, here he undersells it on participation. The Law of Parties does not require that the defendant have been a “major participant in the underlying felony,” but only that he be a conspirator — that he have agreed with another to commit the underlying offense and that he or the other have performed an overt act. If you and I agree to rob a convenience store and you go rob the convenience store, we are conspirators.

Nor does either the Law of Parties or the Felony-Murder Rule require that the party “exhibit a reckless indifference to human life.” The former requires that the murder “should have been anticipated”; the latter requires “an act clearly dangerous to human life.”

The idea that I can be executed for a death that I didn’t cause, didn’t help with, and didn’t anticipate is harsh. Most people, presented with the actual law, might agree that it is too harsh. But making things up is unhelpful, and is likely to backfire when people realize that you haven’t told the truth. The law is not complicated, and Hedayati should have gotten it right before sending it in for publication.

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2016.025: Carl David Ceder Learns The 12 Rules of The Blawgosphere

I did not write the following post. Scott Greenfield wrote it and posted it to Simple Justice in 2013. Carl David Ceder has filed what appears to be a fraudulent DMCA takedown letter regarding it (because Scott used Carl’s JC Penney portrait as an illustration).

On the chance that the takedown succeeds for a moment, I bring you Scott Greenfield’s …

Carl David Ceder Learns The 12 Rules of The Blawgosphere

When I received the email from Dan Hull at What About Clients/Paris? it wasn’t hard to imagine the look of exasperation on his face.  There are few people in the blawgosphere who have had their content ripped off more consistently than Dan, and unlike the rest of us whose posts ended up on some scammer’s website, Dan’s was different. The thief always seemed to be a lawyer.  Lawyers just wanted what Dan wrote.

This time it was a young Dallas/Fort Worth criminal defense lawyer named Carl David Ceder, who had lifted wholesale one of Hull’s best known and most appreciated posts, his12 Rules of Client Service. This was first posted in 2006 and may be the post for which Hull is best known.

And there it was, on 2007 Houston law grad Carl David Ceder’s website, in all its glory. No permission. Not even credit. Just as if this kid came up with it all by himself, instead of stealing it from Dan Hull.

So I asked Dan if he sent the kid an email, and he told me he sent the kid a question, whether Ceder wrote the 12 Rules himself? But Hull heard nothing back and was off to Hanover, New Hampshire to conduct a Sensitivity training Seminar for the Dartmouth College rugby team.  Again.

Not being particularly inclined to let things go so easily, I sent Ceder an email as well:

Carl,

I’m a criminal defense lawyer in New York and have a blog called Simple Justice. It’s pretty well regarded and widely read. Even in Texas. It’s come to my attention that you have posted a page on your website about the “12 Rules for Client Service.”

These were written by a buddy of mine, Dan Hull, for his blog. I note that you have neither permission to take his content or have even given Hull credit for the content.

This is a matter of some concern. Stealing content is frowned upon.

I plan to write about what you’ve done tomorrow. The question is what to write about. I ask two things of you: tell me how it came to happen that this content appears on your website as if it was yours, and tell me what you plan to do about it. Your answers to these questions will dictate what I write about, and likely what others will have to say about you. If I don’t hear from you, I will assume the worst.

If you have made a mistake, I would hope you would acknowledge it and correct it. If someone put your website together for you, and they stole the content without your realizing it, that would also be worth knowing. I await your response today. Either way, you should anticipate a post about this tomorrow.

Scott Greenfield

No word back from Carl.  There are many possibilities, that he was away for the holiday weekend. That he really doesn’t exist. That he doesn’t check his email during the winter months.

Ceder

If you can’t trust this face, who can you trust?

Or that this young lawyer, an Avvo 10 “Pro” despite his youth and inexperience, never thought he would get caught stealing from more experienced lawyers in order to market himself.

Curiously, Ceder’s Avvo profile oozes with sincerity, spelling issues notwithstanding:

I can tell you with absolute and complete honesty that all of my client and peer endorsement reviews on this AVVO account are completelely [sic] and 100% authentic. My office takes great pride in our work, and it brings us great joy when our former clients or a professional colleague endorses the work of my law practice. I fully realize that there will come a time when someone may write a bad, negative, or even a “so-so review.”

So what exactly does “absolute and complete honesty” mean when coming from a kid lawyer busy marketing the crap out of himself on the interwebz who steals the content of another lawyer and tries to pass it off as his own?  Redundancy aside, it means nothing. You just destroyed the one thing that no lawyer can afford to lose, integrity. Falsus in uno. falsus in omnibus, kid.

It takes hard work and experience to come up with something of the quality of the 12 Rules of Client Service.  It takes nothing more than a mouse to steal it.  And if you think creating the 12 Rules is hard, it’s nothing compared to training the Dartmouth Rugby Team to be sensitive.  On the other hand, writing a blawg post about another kid lawyer who steals content and lacks integrity takes no effort at all.

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