Power Doesn’t Like Truth

Scott Greenfield got an email critical of his position on marketing, and published it unedited to his blog. In one portion, the writer (Santa Ana, California probate lawyer David Allen Hiersekorn) writes:

Even more disturbing, you actually write on your website that you are better than other attorneys and would get a better result for your clients.  Many states actually prohibit those kinds of statements.  I know that a good many lawyers would find them wholly undignified.  I have a dear friend and mentor, retired New York Judge William Lawless, who wrote much of New York’s evidence code back in the 1960s.  I had a conversation with Judge Lawless where he went on at length describing the harmful effect of lawyers competing on quality of result. 

I will summarize Judge Lawless’ [sic] argument as it relates to your area of practice.  Mr. Greenfield, you diminish the legal profession, because your advertising gives the public the impression that the criminal justice system doesn’t determine guilt or innocence.  Rather, the result of the legal system is to determine who has the best lawyer, and then reward that person.  The legal profession suffers when people believe that an acquittal can be purchased simply by hiring a better lawyer.  The converse is true as well.  The legal system suffers when people believe that innocent people get convicted simply because they didn’t have a better lawyer.

Indeed, these things happen.  But, they are tragedies of justice, not marketing opportunities.

As I understand Judge Lawless’s position (as transmitted by David), criminal-defense lawyers shouldn’t suggest that the criminal justice system is an imperfect machine for delivering justice, nor that quality of counsel matters to a person accused of a crime.

In other words, criminal-defense lawyers shouldn’t speak the truth.

There are some who stand to gain from the truth not being told about the criminal justice system. Judges and prosecutors, for example, benefit from the perpetuation of the illusion that the system is intrinsically just. They depend, for their employment, their egos, and their sense of order on the system not being “diminished”.

Those who want the public to think that the system is an efficient machine for determining guilt and innocence would have lawyers like Scott lie about the system because the truth is undignified. But “it’ll harm the system” isn’t a compelling argument to us; criminal-defense lawyers are not among those with a stake in the beauty of the emperor’s robes.

The system is undignified, ugly, dirty, and messy. It’s not about factual guilt and factual innocence, nor about truth and falsehood, nor right and wrong, nor good and evil. It’s about what the government can prove (whether true or false) and what the defense lawyer can keep the government from proving. 

The better the lawyer, the better the chances the accused has. Innocent people get convicted simply because they didn’t have a better lawyer. Not only do criminal-defense lawyers have a duty not to lie to the
public about the system, but they also have a duty to tell the truth, because innocent people who don’t know this to be true are screwed. 

What three-year probate lawyer attorney David calls “tragedies of justice”, veteran criminal-defense lawyers call “the status quo”. When the system manages to produce Justice, it’s no more than a happy coincidence.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in criminal defense lawyers, ethics and/or professionalism, judges, the system, truth. Bookmark the permalink.

18 Responses to Power Doesn’t Like Truth

  1. Lee says:

    “criminal defense lawyers are not among those with a stake in the beauty of the emperor’s robes”

    I find myself having to remind judges and prosecutors of this all the time. Particularly because I am a Public Defender, they seem to believe I am as invested in them in “making the system work.” From time to time, my client’s interests coincide with such a goal, but as a general matter it would be my pleasure to watch “the system” that incarcerates 1 in 100 Americans grind to a halt and then burn to the ground. This is why I’m “difficult to deal with” and don’t as your Honor might suppose, have any compunction whatsoever about gaining such a reputation.

    With respect to their perpetration of the fraud that the system is just and the actors don’t matter, just anecdotally, I got a call from a DA in the gang unit Monday asking me if I was ready to go on a preliminary hearing set for Tuesday. When I informed him that I had been subbed out by incompetent private counsel, his response was “Christmas comes early. Have a great Thanksgiving.”

  2. Greybear says:

    Amen!

  3. Mark Bennett says:

    “. . . as a general matter it would be my pleasure to watch “the system” that incarcerates 1 in 100 Americans grind to a halt and then burn to the ground.”

    Once, when HCCLA was foundering, I considered forming the BTMFDBA — the BT is for “Burn The”; the “BA” is for Bar Association.”

  4. shg says:

    There was so much fundamentally wrong with his guy’s understanding that it pained me to keep out of the mix. But of all things, the one that bothered me most was his assumption that the crap lawyers were PDs. This was pure ignorant assumption on his part, and contradicted by my many posts about PDs and private lawyers.

    My fear is that someone, some day, will stumble upon his comments and assume that they accurately reflect my thoughts or writings. While I’m happy to be tarred with my own words, I am not willing to be tarred with his.

    And by the way, Lee, it’s not nearly as much fun to deal with dangerous ignorance as it seems, is it? It gets tiresome after a while.

  5. David Hiersekorn says:

    I’m sorry, but this thread is entirely out of context. Scott Greenfield was complaining about legal marketing and went so far as to call a particular legal marketer a “whore.” In addition to being a good friend of mine, this legal marketer is a proponent of the most dignified forms of legal marketing. He is certainly not a whore.

    I wrote Scott with one purpose, which has been entirely edited out of the above clip. I wanted to point out that he is in no position to criticize legal marketing when he aggressively participates in marketing of his own. My criticism of his marketing message – that the criminal justice system is broken, other attorneys are helpless to save you from it, and only by hiring Scott Greenfield can you protect yourself from this mess – was more or less a device to show that he hadn’t exactly taken the high road as it relates to advertising.

    Specific to the misinterpretation of my position on this blog, I am not saying that criminal defense lawyers should be quiet about flaws in the system. I’m saying that when they use those flaws as a marketing message, then they are in no position to complain about other attorneys’ advertising. “The system is broken, let’s fix it” is a public service announcement. “The system is broken, so hire me” is advertising.

    That’s really all I’m saying

  6. Lee says:

    It is not, which is why I generally don’t. This guy pretending to be this above the fray, rational voice in the conversation just irked the hell out of me, particularly when I found this (which you may have too): http://www.redhilllawgroup.com/attorneys.html.

    Since I am forced to deal with a lot of this ignorance about criminal law in general and criminal defense attorneys in particular on a day to day basis from neighbors and the like, I really try to stay out of it online, remembering what a wise man once said (very non-PC alert): “Arguing on the internet is like competing in the Special Olympics. Even if you win, you’re still retarded.”

  7. Mark Bennett says:

    Lee, I’m sorry. David Dunning-Kruger’s post was in the moderation queue and I didn’t get around to it till now.

    David, don’t be whining about being quoted out of context. The entire context is available to anyone who clinks on the first link in the post. I could have cut it down much farther, to “The legal system suffers when people believe that innocent people get convicted simply because they didn’t have a better lawyer.” Not “the legal system suffers when lawyers, for advertising purposes, inform people that innocent people get etc.” (though that’d be a dumb argument too — see below), but the legal system suffers when people believe something that is unquestionably true.

    Then you reinforced the point in a comment on Scott’s blog: “Whether this actually happens is beside the point. The integrity of the justice system is premised on the assumption that, as a matter of course, it does not happen. And, when it does happen, the appeals and writs procedures are there to provide a remedy.” The integrity of the justice system is premised on a false assumption. And appeals and writs usually don’t provide any remedy to the wrongfully convicted.

    You didn’t get around to crawfishing until your next comment on Scott’s blog.

    You strike me as extremely dishonest, intellectually. But let’s pretend that you actually said what you now wish and pretend you had said — that, while it is true that quality of representation matters in criminal court, criminal defense lawyers should not advertise this fact because the legal system would suffer. It’s just as stupid an argument — maybe a stupider one — than “criminal defense lawyers shouldn’t say that quality of representation matters because quality of representation doesn’t matter” or “criminal defense lawyers shouldn’t say that quality of representation matters because, while true, it harms the system.”

    Instead, criminal defense lawyers should market themselves based on what? Their great good looks? Their low prices? There’s no better way for an accused to ensure that he’ll get lousy representation than for him to hire the low-bid lawyer.

    Try this:

    The integrity of the probate system is premised on the assumption that the decedent’s property is efficiently distributed to the people to whom the decedent would have wished it. The legal system suffers when people believe that some people’s heirs get screwed because the wrong lawyer wrote the trust.

    Are you buying it? I thought not.

    Damn the system, the truth is the truth. The alternative to telling the truth in advertising is either a) remaining silent, or b) lying. The system might benefit from either, but the public doesn’t.

  8. Mark Merenda says:

    As the person who was called “whore” among other things by Scott Greenfield, I think it’s important to note that his publication of David Hiersekorn’s letter was at odds with his attitude toward many others, including myself. His stated belief is that no form of freedom speech exists on his blog. It’s his, and anyone “promoting” “improper” practices (i.e. disagreeing with him as to whether marketing for attorneys is a good thing — and if so, what kind) is banned from commenting. And when the tide swings against him, and dozens of people are ready to call him on his statements, he “closes” comments, so that no other voices can be heard.

  9. Mark Bennett says:

    No freedom of speech exists here either. I’ve edited comments, removed links, and banned commenters to keep things pleasing to my eye. If I had the readership that Scott has, I’d probably have closed comments a time or two as well.

  10. Mark Merenda says:

    Well, it’s an interesting concept. One publishes a name-calling attack on another and then bans their comments for reasons like — they aren’t pleasing to one’s eye (or they “promote” “improper” ideas about marketing). Aside from the solidarity you feel with Scott as a fellow defense attorney, and as one concerned with the dignity of the profession (as besmirched, apparently, by people like me), do you think calling people “whore” “scum” “asshat” and such — people who have done nothing more evil than make a reasoned argument with which you disagree — is a good thing for the profession?

  11. David Hiersekorn says:

    Mark,

    Are you actually reading what I’m writing? Seriously, you are so consistently misunderstanding what I’m saying that I’m beginning to think it’s on purpose.

    For about the 57th time, I am not saying that Scott Greenfield is marketing improperly. I’m saying that he is in no position to COMPLAIN about legal marketing when he so aggressively engages in it himself. How is it so hard for you to grasp that point?

    You keep pretending like I was trying to make some other point. In doinig so, you have to ignore not only the context of my letter, but the circumstances under which I wrote it. Scott Greenfield called Mark Merenda a whore, for the sole reason that Mark is in the business of helping lawyers market themselves. I wrote Scott a PRIVATE letter, which he chose to publish on his website. (Without my permission and without informing me, by the way.) Clearly, my objection was to Scott calling my friend a “whore,” and everything I said ought to be interpreted in that light first.

    Yet, you would pretend that I took it upon myself to write Scott out of the clear blue and opine on the current state of the criminal justice system and Scott’s exploitation of it. Even worse, when I point out that my purpose was something else – something more in keeping with the circumstances – you act as if I was trying to make a convenient dodge to avoid the consequences of the point you claim I was really trying to make.

    It’s really simple. I was calling Scott a hypocrite for complaining about marketing when he does so himself. I only addressed his marketing message in anticipation of his likely response that his marketing was somehow “different” from the “bad” attorney marketing that he criticizes. Plainly, it is not.

    Scott’s message is at the expense of the integrity of the legal profession. I haven’t heard anyone dispute that. Rather, I have heard people respond that the integrity of the system is, in truth, already compromised and that Scott is doing a public service by informing people of that fact.

    Heck, that may be true. I’m not disputing that. In fact, I am generally in favor of any message that directs people away from crappy attorneys. God knows there are a lot of them out there. But, again, that’s not the point.

    HINT: WHEN I SAY THAT’S NOT THE POINT, IT’S PROBABLY A GOOD PRACTICE TO ASSUME THAT I’M MAKING A DIFFERENT POINT.

    The point is that when an attorney chooses to malign the integrity of the justice system AS A MARKETING MESSAGE, then that person can’t criticize others for marketing their own services. Sure, auto makers sell airbag-equipped cars by attacking the dangers of driving. There are no doubt countless examples of this in action. Pointing out that your services are better than others is a great way to market.

    But, Scott can’t pretend that he isn’t marketing, and he can’t pretend that his marketing is different from other marketing in general. Even in the years since the Bates decision, state bars have tried to enforce dignity in lawyer advertising. Many states have regulated advertising claims that an attorney is better than others, that the attorney can achieve a better result, or that the attorney is an expert in a particular practice area. Still others have restricted attorneys from criticizing other members of the bar or the legal profession in general.

    Are those rules antiquated and protectionist? Sure. Are they right? Probably not. But, the point is that, once upon a day, a bunch of crotchety old men would have been offended by Scott’s marketing message. That’s enough to make my point.

    That message – that Scott can’t simultaneously engage in his own marketing and criticize others for theirs – has appeared consistently in my original letter and every comment I’ve made since. If you can’t see that, then I don’t really know what else I can say to explain this to you.

  12. Mark Bennett says:

    Mark, that’s for another blog; we won’t be continuing that discussion here. Maybe on your blog?

    This post, on the other hand, was about David’s stupid statements, which he’s now trying his hardest to disclaim (by denying), that somehow the public shouldn’t be told that the system is broken. Now David Dunning-Kruger is turning it into a demonstration what not to do when you say something stupid publicly.

    David,

    You like to tell people what they can and can’t do or say; I find that that’s not an uncommon trait in people who (like children and Republicans) think (and only think) they’re smarter than the people they’re dealing with.

    Your new point is as stupid as the last three. If I am marketing ethically, I have every right — and probably an obligation — to complain about other people’s unethical marketing. You and I might disagree about whether impugning the “integrity” of the criminal “justice” system is unethical (but you would be wrong). We might also disagree on whether some other marketing was unethical but I’d have to look at it case-by-case. If you want to have the “marketing good – no, marketing bad” argument, you’ll have to have it elsewhere with elseone. Mark and David, you can find my full response to David’s larger post in my first comment to David’s letter on Scott’s blog.

    That letter, by the way, suggested that you wished to make your point publicly. Now you’re starting to complain about Scott allowing you to do so?

    When in the course of making what one thinks is a good point one says something stupid, the solution is not to impugn the reading comprehension skills of the reader. Nor is it to condescend.

  13. David Hiersekorn says:

    Mark,

    My original letter to Scott Greenfield drove to a single point. It is contained in the final paragraphs. Dropping the personal defense of Mark Merenda, the final point, verbatim, was:

    “So, rather than bemoan the sad state of legal marketing, I would suggest you take a look in the mirror and recognize that you are participating in the activities you claim to dislike. The only difference is that you feel entitled to your message.

    “In the end, it is merely ego. You have personally decided that you are good enough to advertise, while others are not.”

    That is the substantive point I was making in my original letter. Now, when someone reads the above and then INSISTS that I was trying to make a different point, I am fully justified in questioning their reading comprehension skills.

    But, you haven’t just suggested that the above clip wasn’t my main point. You’ve gone on to suggest that I didn’t actually make the above point at all, and that it was just a fabrication cooked up after the fact to cover up the point you claim I was really making. You claim that this is the fourth version of my point, yet there it is, plain as day, in my original letter. Moreover, that same point is found in each of my posts on this blog and Scott’s.

    Again, I only questioned Scott’s advertising methods to avoid the claim that he was doing a public service. You apparently believe that as well.

    Until it was dropped in 2002, ABA Model Rule of Professional Responsibility, Rule 7.1 ( c ) prohibited advertising that “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” Recently, the State of New Jersey went after the “Super Lawyers” publication because the state claimed the publication created the impression that the lawyers were superior to other lawyers.

    The further back you go, the stricter those rules get. Now, again, it doesn’t matter whether Scott’s advertising is kosher. The only thing that matters is that there are other lawyers out there who would be offended by Scott’s message. See, Scott has chosen to be offended by others’ marketing, yet he markets himself. The only way he avoids being labeled a hypocrite is if his own message is somehow different – lily white and beyond reproach.

    But, it isn’t. His message would probably come under attack in his neighboring state, New Jersey. It certainly would have come under attack in states that follow the older version of Rule 7.1. Admittedly, that’s an attack I think he would survive. But, the fact that others would complain is enough to support my point.

    Scott is entitled to his opinion and he can market his services along with everyone else. He just doesn’t get to pretend that other marketers are whores, and he is not.

    As for the Dunning-Kruger barb, I know my own abilities. From my IQ tests to my National Merit Scholarship, from my SAT to my LSAT scores, and from my grades from grade school through law school, I know full well what my abilities are compared to others. In the arena of argument, my former logic professor (who now holds an endowed chair at one of the top schools in your state, by the way) called me one of the brightest students he’s ever taught. I am at least qualified to interpret my own statements and what they mean.

    It doesn’t matter who’s smarter – you or I. It only matters that I am smart enough to know what my own words mean. That’s enough.

  14. Joel Rosenberg says:

    It only matters that I am smart enough to know what my own words mean.

    Err, no; that doesn’t matter much at all. And for a short illustration of that, please farble the glimrod. You can’t? You don’t know what the words mean? Ah. (And, no, I didn’t make them up.)

    I’m not going to follow our host’s lead, here, and draw psychological conclusions from what I’m guessing is just your verbal tic of announcing what other people do and don’t get to do, even in response to him helpfully (more or less) pointing that verbal tick out. Although I am tempted. See, I’ve read lots of books, and probably the most prominent psychiatrist in the nation once said I was brilliant*, so I must know all about that stuff, right? Err, no. Maybe not.

    Here’s the thing: when you think you’re saying something and people appear to react to something else, there’s only a few possible explanations, and among them is that they disagree with some of the premises built into what you’re saying, both the spoken ones and the unvoiced ones.

    You seem to run into a lot of that.

  15. Mark Bennett says:

    “It only matters that I am smart enough to know what my own words mean. That’s enough.” I’ll have to try that in my next jury trial. You believe it, and you are very impressed with yourself, so you must be right.

    If you “drive to a single point” via some repulsive authoritarian backwater, you’ve gotta expect your passengers to complain and question the detour.

    As much as the audience loves it when we screw up and stay happy, it hates us when we deny screwing up.

    From one who makes his living as a communicator to one whose “former logic professor (who now holds an endowed chair at one of the top schools in your state, by the way) called [him] one of the brightest students he’s ever taught”, the appropriate response to the passengers’ complaint is not “you ignorant little people, I didn’t go there” but, “you’re right; I shouldn’t have gone there.”

    Mark.

    p.s. Does the namedropping help you get dates? You must do it for a reason, but it doesn’t seem to be impressing anyone here (shall I take a poll?).

  16. David Hiersekorn says:

    Mark,

    In logic, there is what’s called the “principle of charity.” In a nutshell, the principle states that the listener is supposed to interpret a speaker’s statements in the strongest and most rational manner possible. In other words, if a person says something that can be interpreted two ways – one rational and one irrational – it is incumbent upon the listener to interpret them in the rational way. This avoids petty nit-picking over possible, but unintented, interpretations of an argument.

    A corollary of the principle is the rule that when a speaker states that his words are to be interpreted in a particular way, unless doing so is irrational, then the speaker’s interpretation of his own words is to be taken as the intended one.

    These are the principles that you (and others) have failed to follow in this discussion. Perhaps it is a function of your practice area. I would imagine that criminal defense attorneys are not especially inclined to be generous in accepting another’s argument. After all, it is the nature of what you do.

    Frankly, I wouldn’t have spent this much time arguing with you folks if it weren’t for the fact that several, including you, took unsubstantiated swipes at my abilities as a lawyer. You linked my bio page, as if it were some self-obvious strike against me. Others questioned whether an attorney with my experience could possibly handle the types of cases that I do. And, this presents a no-win situation for me. If I don’t defend myself, then the blowhards win. If I do defend myself, then you accuse me of being an insecure braggard.

    But, what am I to do when confronted with a hostile group insisting that I’m saying something that I’m clearly not and accusing me of faulty logic? Even worse, the folks attacking me, by and large, were doing so with empty ad hominem and weak or faulty arguments. Among those who know me, nobody questions my intelligence. I’m not accustomed to having people question my abilities as a lawyer or as a thinker. If I’ve reacted to the unfounded accusations incorrectly, then it’s only because I’ve not had to face this situation before.

    Even above, you took the last two sentences of my recent post, “It only matters that I am smart enough to know what my own words mean. That’s enough.” You critique those words without putting them in the context of the sentence and paragraph prior. The question I was discussing was whether I am qualified to interpret my own point, or whether you are qualified to tell me what I really meant. I said that it doesn’t matter who is smarter – you or I. In that light, I was stating the minimum intelligence necessary to determine what I meant when I spoke.

    Yet, you have the gall to call ME intellectually dishonest. You have consistently (and I believe intentionally) misinterpreted my words and argued againt your suggested interpretation – sort of a straw man/red herring.

    It appears to me that you and the others have made what I would call a “domain error.” You assume that, because I’ve only been a lawyer for a few years, that I somehow lack logical reasoning skills. You can’t even assume that I’m not a good lawyer. Yet, without any basis whatsoever, people on both blogs have done both. The central opposition to my argument has been based almost entirely on ad hominem. As I was reminded by a friend earlier, “when you are arguing ad hominem, you are admitting you don’t have a better argument.”

    In the end, I have established that Scott Greenfield is advertising, all the while he rails against others for doing the same. Really, that is all I set out to do. If you want to pretend I had some other goal, then so be it. Beyond that, I don’t have time in my life for the kind of pettiness you seem to relish in. I will let you move on to calling someone else names and pretending that makes you the intellectual superior of the two.

  17. shg says:

    You’ve established nothing about me. You murdered a thousand words in your effort and the only thing you’ve established is that you don’t have a clue what you’re talking about. And it isn’t going to change because you keep stamping your feet like the child you’ve conclusively proven yourself to be.

  18. Mark Bennett says:

    Among those who know me, nobody questions my intelligence. I’m not accustomed to having people question my abilities as a lawyer or as a thinker.

    Obviously. Welcome to the real world, princess.

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