Are You “Experienced”?

July 5, 2014

Not only a good album, but a good question. Attorney advertising has been around as long as I’ve been practicing law, as have the Rules of Professional Conduct, which govern attorney behavior, including advertising.

In Pennsylvania, attorney advertising is governed by Rule 7.2 of the Pennsylvania Rules of Professional Conduct. As part of these rules, a lawyer may not use “inherently subjective terms” like “experienced” to describe their practice. This rule seems to be observed more in its breach than in lawyers’ adherence to it. Google “Experienced Pennsylvania Lawyer” (or just click that link) and you’ll see what I mean.

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In case it’s not perfectly clear…

July 1, 2014
GetAWarrantiPhone

Get a Warrant — for iPhone

I made this on my iPhone yesterday, and it currently serves as my lock screen.

Feel free to download and use it appropriately.

Tell your friends and share as much as you’d like. Get the word out there that police may not search your phone without your consent or a warrant, thanks to Riley v. California.

(Wikipedia here, SCOTUS opinion here, OYEZ project link here).

While you’re at it, turn off location services.

Edit: I had a colleague point out to me that the text is obscured by the unlock dots on some Android phones. An Android version is below the fold.

2nd Edit: Ken at Popehat requested a special custom version, which is also below the fold. Use at your own risk.
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Making People Stupider: Jezebel Edition

June 20, 2014
About That Time Jezebel Made People Stupider

About That Time Jezebel Made People Stupider

Today in Making People Stupider, I present to you the Jezebel article by Erin Gloria Ryan titled “About That Time Hilary Clinton Smeared a Tween Rape Victim“.

Read it. Please. Yes, including the comments section.*

Here’s are two highlights :

On the other hand, how massively fucked is it that our legal system expects and encourages attorneys to treat rape victims like this? And that even Hillary Clinton didn’t have the balls to set her career goals aside for a moment and stand up to what she must have known was bullshit, even in the midst of a time in her career she claims was devoted to serving children and families?

***

Hillary Clinton didn’t ‘laugh at a rape victim’ as the coverage errantly insists, but she definitely was the sort of lawyer who would attack the credibility of a rape victim in pursuit of legal victory.

You’re right, Erin. It couldn’t possibly be that Hillary was doing her job as a criminal defense lawyer and had an ethical obligation to defend her client however she could—it was that she had “career goals”. She should have “had the balls” to roll over and sell her client up the river, in derogation of her ethical duties to her client, because she’s the sort of lawyer who DARES to attack the credibility of a complaining witness.

Oh, and “the children”.

I was going to write a much longer, angrier, piece about the history of what criminal defense lawyers do, our ethics, our duties to our clients, etc., but it would be wasted breath keystrokes.

I’ll just say this: criminal defense lawyers have an ethical obligation to defend their clients. There is no “I understand, but…”. It simply is.

Erin Gloria Ryan, shame on you for making people stupider today .

*I am ashamed to say I broke Rule 1 of the Internet and argued in the comments.


Winning Ugly

June 18, 2014

Judge Papov looked pissed.

“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”

The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.

A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.

Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?

Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”

As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.

Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.

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Smokey the Cat

January 5, 2014

“Jordan, have you ever done an eviction before?” my boss James asked me. I had been working for a small firm in suburban Pennsylvania for about three years now, and was beginning to hit my stride as a lawyer. James was letting me handle files from start to finish with more regularity.
“Nope. But I’m sure it’s not rocket science. Just give me the file, old man,” I said with a grin. “This one sounds boring.”

The case was simple enough. A woman named Agnes was renting a house from one of James’s biggest clients. She hadn’t paid her rent in a long, long time. The client decided he didn’t want her living there anymore. Too easy, or so I thought.

I drove to the courthouse that day and filed the paperwork. A few weeks later I had a default judgment and a writ of possession, meaning I could have the constables remove the tenant with force, if necessary. The constable posted notice on the house, and we made arrangements for the eviction. Again, too easy. Chalk this up as another win.

“How is the eviction case coming along, Jordan?” James asked me a few weeks later.
“Great! We got a default judgment. I’m going to the house tomorrow morning to remove her. Next time consider giving me an interesting assignment, old man,” I said laughing.
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The Plea

December 3, 2013

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am. Read the rest of this entry »


In The Digital Age, What Is Privacy?

October 11, 2013

A few days ago I wrote about LinkedIn and how apparently they know who I email. After that, I began thinking about how much you can learn about a person just by their digital footprint, especially from an intelligence perspective. What’s interesting is just how much data private corporations like Amazon, Apple, and Microsoft know about everyone. So, exactly what kind of things could you figure out just looking at a person’s digital footprint? Let’s think about it…

Your daily travel habits. You know that function “location services”? While it’s cool to show the world that you’re posting something from Thailand, Philadelphia, or China, reviewing your location services history also would allow someone to put together a very accurate profile of where you generally are. Your laptop, and ergo third parties like Apple, know where you are every single day. 

Your interests, including what type of music, hobbies and literature they are into. If you’re like me, maybe you buy a lot of books and music in digital format. It’s easier than carrying stuff around everywhere. However, if someone were putting together a dossier on you, they could compile all the music, books, and games you are into. While we used to listen to tapes CDs, now Spotify broadcasts whatever I listen to all over the internet. 

Your social network. Just by looking at my Facebook page, you can make some obvious connections about me. Grew up in Downingtown, went to Villanova University, and then Temple Law. Looking at my “friends” section, you can put together a very clear picture of the people I associate with and how frequently. In the olden days, the government would have to subpoena your telephone records or conduct surveillance to figure out who you associate with. Today it’s much easier to simply look at who emails are sent to, and who you’re friends with on Facebook. Keep in mind, part of intelligence is being able to see how people are connected. 

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Unlike George Zimmerman, Most Criminal Defendants Cannot Afford A Fair Trial

July 15, 2013

Last week many of you saw the criminal justice system at its best. George Zimmerman had top notch attorneys and expert witnesses representing him. The trial lasted from June 24 through July 12, which is a lot longer trial than most criminal trials last.

Brian Tannebaum, Eric Mayer, Elie Mystal, Gideon, Popehat, and Scott Greenfield wrote the best pieces I’ve read about the verdict, so I am going to refrain from commentary. Everything that needs to be said has been said by bloggers better qualified than myself to express their opinions.

I think there is an aspect still worth discussing – George Zimmerman was able to afford a top notch defense. Those who can afford a top notch defense fare far better at trial than those who cannot. That is how our justice system works, which I don’t think most Americans realize. The more money you have for your defense, the stronger it is going to be. Someone has to pay those expert witnesses, court reporters, and private investigators.

And here someone paid a significant amount of money to ensure Zimmerman had a full and fair trial.

As a result, it seems like every person in America now thinks that every criminal defendant gets weeks of trial, expert testimony, and a full and fair opportunity to have their case tried fully and fairly. Most of you have never heard of a “meet and greet” plea, where the public defender meets their client for the first time when striking a plea.

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Brian Sims Owns Daryl Metcalfe For Silencing Him On The PA State House Floor Because Metcalfe Believes Marriage Equality Violates “God’s Law”

June 28, 2013
cc2011036 - Gays to Watch for G Philly

State Representative Brian Sims in GQ Magazine

This week it was reported that Downingtown’s own State Representative Brian Sims was going to introduce marriage equality laws here in Pennsylvania. Brian happens to be openly gay, and a really great guy from my hometown. As everyone is aware, last week the Supreme Court struck down the Defense of Marriage Act, and in doing so held:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.

In other words, the constitution forbids congress from passing laws based on discrimination. I thought we figured that out a long time ago, but whatever.

On Wednesday, Brian was going to address the Supreme Court’s historic ruling striking down DOMA. However, Representative Daryl Metcalfe didn’t want to hear Brian had to say about it.

Why? Because according to Metcalfe:

I did not believe that as a member of that body that I should allow someone to make comments such as he was preparing to make that ultimately were just open rebellion against what the word of God has said, what God has said, and just open rebellion against God’s law

Now, I don’t know about you, but God has never explicitly told me that homosexuality is wrong. I know it kinda sorta says it in the Old Testament, but let’s be honest… the the Old Testament says a lot of things that we don’t follow in a civilized society. Things like not eating shellfish, selling your daughters into slavery, beating your wife, not trimming your beard, and not wearing polyester.

As a theology minor, no one has ever been able to convince me there is a valid theological basis for discriminating against our gay brothers and sisters. My interpretation of the Bible is that Jesus would be ashamed that Christians are using His name to promote their bigotry and political agendas.

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Talking Torrents: Judge Baylson Issues Final Memorandum Opinion on the Bellwether Trial; Kills Mass Joinder Torrent Actions

June 19, 2013

Today the Bellwether case officially concluded. Judge Baylson has issued his final memorandum opinion, found here.

Notably, you may recall that we filed a motion to dismiss at the outset of the case, arguing that all of the swarm are indispensable parties. Joinder is either proper or its not. The court rejected that argument and denied our motion.

Interestingly, the court’s opinion memorandum opinion issued today held that joinder is not approprriate in a bittorrent case:

I now believe that joinder of multiple defendants in a single complaint alleging copyright infringement through the use of BitTorrent technology is neither necessary nor appropriate. …  As I held then and believe even more firmly now, members of BitTorrent “swarms” are not essential parties for copyright infringement suits involving BitTorrent technology because the “swarm” is formed automatically by the software, and not by any actual association of these defendants. Moreover, there are downsides to allowing permissive joinder. As trial judges are well aware, a large number of defendants in a single complaint poses significant management problems and often delays disposition of cases. Further, joining multiple defendants allows the plaintiff to avoid separate filing fees, and also pressures individual defendants to settle because their costs of defending a multi-party case are likely to be larger than if there is only one defendant. For these reasons, and based on the record made in this case, I recommend against requiring joinder under Rule 19 and also against allowing it under Rule 20(a).

While this opinion will most likely end the era of massively joined bittorrent actions, I don’t think this is the end of torrent lawsuits. I suspect you will see more actions filed against individuals accused of massive infringement.

But absent massive joinder actions, is this the end of what is popularly characterized as “copyright trolling?” Does this mean that now plaintiffs will be more willing to take their cases to trial?

We shall see.

You may also recall that last year, I wrote an article suggesting that mass joinder actions may be better for individual John Doe defendants.

There is a lot going on in this opinion, and I’m sure you will all have interesting takeaways from it.


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