SBM Blog

Does "Niceness" Pay in Lawyering? Does It Depend on Your Gender?

An article of faith in bar associations is that civility pays big dividends in both the short and long run, increasing satisfaction, respect, and referrals.  The view is supported by countless personal anecdotes of successful lawyers. The countervailing view is that nice guys finish last.  A recent study cited in the Lawyerist lends support for that depressing viewpoint.  The study,  "Do Nice Guys -- and Gals -- Finish Last? The Joint Effects of Sex and Reasonableness on Income," looked at the pay rates of “agreeable” people vs. “less-agreeable” people and concludes that less agreeable men earn about 18% more than agreeable men. Being less agreeable gives women only a 5% higher earning dividend.  Among the explanations suggested by the study's authors is the possibility that "people high in agreeableness may not translate their human capital into financial gain as well as people low in agreeableness."

Regardless, SBM Blog adheres to the view that civility is not only the right thing to do, it's good for business.

Banner Tactical Response to Criminal Trial Delay

From the New York Post:

A frustrated jailbird, languishing in a lower Manhattan jail cell since 2007, paid a pilot to soar over the Big Apple yesterday, pulling a banner message demanding his day in court.

“V. VASSILENKO JAILED 5+ YRS -- NO TRIAL -- IS THIS LEGAL?” read the 100-foot-long banner, spelled out in 5-foot-tall letters, that Vadim Vassilenko paid for from the Tombs.

Vassilenko has changed lawyers at least four times.

A Response to the Proposal to Deregulate the Legal Profession

The WSJ op-ed piece, "Time to Deregulate the Practice of Law," has drawn a thoughtful response from Mark Giangrande at the Law Librarian Blog, including:

I can’t see deregulating the legal services industry without establishing a floor of competence that certification provide.  Cosmetologists have to be licensed in most states, why not the non-lawyer legal professional.  I’m not comfortable at all with letting the market decide this one.  I’m not sure judges would care to hold a non-law school advocate to a lesser standard of representation in court.  Consider how the deregulated market would handle ethical obligations and, more particularly, legal malpractice.  I think West would have to add new topics and key numbers to handle the malpractice suits.  There is a lot more to opening up the legal profession than saying it should be deregulated.  Especially when the those saying it suggest they would rather use a traditional lawyer in such a market.

 

A Conservative Voice Speaks From the Past Against Citizens United

In online commentary today in the New York Times, Linda Greenhouse writes about her discovery of a 1978 by conservative justice William Rehnquist that advances what are now considered liberal views:

Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U. S. 694, 322 U. S. 698-701 (1944) (corporations do not enjoy the privilege against self-incrimination), our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth College, supra at 17 U. S. 636.

There can be little doubt that, when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. [Footnote 4/3] Grosjean so held, and our subsequent cases have so assumed. E.g., Time, Inc. v. Firestone, 424 U. S. 448 (1976); New York Times Co. v. Sullivan, 376 U.S. 254 (194). [Footnote 4/4] Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 761-770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.

It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.

Medical Marijuana: What Happens Next?

From yesterday's unanimous opinion (PDF) by a three-judge panel of the Court of Appeals (Hoekstra, Murray, Stephens) that Michigan's voter-initiated medical marijuana law does not allow patient-to-patient marijuana sales and thus dispensaries can be shut down as a "public nuisance:"

The question becomes whether the “medical use” of marihuana permits the “sale” of marihuana. We hold that it does not because the “sale” of marihuana is not the equivalent to the “delivery” or “transfer” of marihuana. The “delivery” or “transfer” of marihuana is only one component of the “sale” of marihuana—the “sale” of marihuana consists of the “delivery” or “transfer” plus the receipt of compensation. The “medical use” of marihuana, as defined by the MMMA, allows for the “delivery” and “transfer” of marihuana, but not the “sale” of marihuana. MCL 333.26423(e). We may not ignore, or view as inadvertent, the omission of the term “sale” from the definition of the “medical use” of marihuana. See People v Burton, 252 Mich App 130, 135; 651 NW2d 143 (2002) (“It is not the job of the judiciary to write into a statute a provision not included in its clear language.”). Therefore, the “medical use” of marihuana does not include the “sale” of marihuana, i.e., the conveyance of marihuana for a price.

Attorney General Schuette has announced that he will send a letter to all county prosecutors telling them that the opinion allows them to close dispensaries and instructing them on how to do so by filing nuisance actions.

 

Entered As Exhibit for Samsung in Patent Fight with Apple -- 2001: A Space Odyssey Clip

From the declaration in support of Samsung's Opposition to Apple's Motion for a Preliminary Injunction:

Attached hereto as Exhibit D is a true and correct copy of a still image taken from Stanley Kubrick's 1968 film "2001" A Space Odyssey."  In a clip from that film lasting about one minute, two astronauts are eating and at the same time using personal tablet computers.  The clip can be downloaded at http://www.youtube.com/watch?v=JQ8pQVDyaLo. As with the design claimed by the D'889 Patent, the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor.

HT: TPM

Rising Michigan (State) Media Star, on DSK Sex Crime Case and Prosecutorial Ethics

Allison Leotta, MSU grad, author of Law of Attraction, and daughter of Oakland County lawyer Alan Harnisch, now can add national media pundit on criminal law to her resume. See her here (starting at 3:48) on prosecutorial ethics and the Strauss-Kahn case:

Watch the full episode. See more PBS NewsHour.

 

British Government Proposes Cutting Legal Aid Coverage by 70%

Except for the telltale use of the adjective "swyngeing," a blog post in opposition to a proposed budget cut of £350 million to the English legal aid system sounds a lot like the case made by bar associations throughout the U.S. (including Michigan) to proposed cuts to the Legal Services Corporation here. On top of making the case in terms of fairness to equal access to justice, the author suggests that the proposal will cost the government, not save money. For example, "every £1 of Legal Aid spent on housing advice, the state potentially saves £2.34 and for every £1 spent on benefits advice, there is a potential saving of £8.80."

The U.S. Supreme Court to Take On Eyewitness Testimony

In "34 Years Later, Supreme Court Will Revisit Eyewitness IDs," the New York Times takes a look at Perry v. New Hampshire, the science on eyewitness identification, and wrongful convictions.  The story says that since 1977, the last case in which the Supreme Court addressed eyewitness testimony, "the scientific understanding of human memory has been transformed" by more than 2,000 studies on the topic. Legal observers, including the Innocence Project's Barry Scheck, worry that the limits of the case will mean that the Court will not go far enough to reflect what we've learned about human memory.

 

Prosecutor's Statement About Dismissal of Strauss-Kahn Sex Crime Case

"A statement that, hypothetically, reflected on  the complaining witness's credibility or the strength of the proof would be gratuitous and improper." Prof. Stephen Gillers, "People v. DSK: What Should Vance Say," Legal Ethics Forum.

“The complainant was untruthful with us in nearly every substantive interview.  She was untruthful about matters great and small in significance.” Assistant District Attorney Joan Illuzzi-Orbon, to the court on Tuesday.

From the prosecutor's motion to dismiss ( PDF):

At the time of the indictment, all available evidence satisfied us that hte complainant was reliable.  But evidence gathered in our post-indictment investigation severely undermind her realiability as a witness in this case.  That an individual has lied in the past or committed  criminal acts does not necessarilly render the unbelievable to us as prosecutors, or keep us from putting themo n the witness stand at trial. But the nature and number of the complainant's falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter between the complainant and the defendant.  If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so.