Don’t Get Caught Being a New Lawyer in Mississippi

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Everyone will agree there are too many lawyers and not enough jobs. But what states are suffering the worst? Matt Leichter, author of Law School Tuition Bubble, compiled lawyer job projections for 2010-2020 with anticipated graduates from ABA-accredited law schools to determine who’s the worst off. This list comes hot on the tail of news that law school applications declined for a third straight year:

• Mississippi (10.53 law grads for each job opening, according to initial numbers)

• Michigan (6.48 law grads for each job opening)

• Delaware (4.20 law grads for each job opening)

• Nebraska (4.04 law grads for each job opening)

• Vermont (3.50 law grads for each job opening)

• Massachusetts (3.27 law grads for each job opening)

• Indiana (3.03 law grads for each job opening)

• Oregon (2.98 law grads for each job opening)

• Louisiana (2.95 law grads for each job opening)

• New York (2.92 law grads for each job opening)

And way down at #26: California (1.99 law grads for each job opening). Rounding out the list, Alaska was ranked as one of the best because it had no grads from ABA-accredited law schools (0.00 law grad for each job opening). Running these numbers based on new bar admittees, Alaska, like all other states, suffers from an oversupply of lawyers.

Via The Atlantic.

Non-Conjoined Twins As Legal Actors

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However, DNA matches have connected identical twins to the crime, but criminal charges cannot be pursued against them because their DNA is exactly the same and the victims cannot identify which of the twins may have committed the crime.

Via The Merc.

See also, Summers v. Tice and the case of the lawyer too clever by half.

Urban Dictionary Finds Place in Official Court Opinions

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What once was restricted to Wikipedia, the scholarly source, has now extended to a research tool with potentially less integrity. In a recent piece, the New York Times reports on the growing use of urbandictionary.com as a dictionary of slang and colloquialisms legitimate enough for reference in official court opinions. As official, print dictionaries like Websters and the OED lag behind the parlance of our times, Urban Dictionary maintains an up to date, peer-reviewed list of common words.

Uses of Urban Dictionary, started in 1999 by founder Aaron Peckham from his college dorm, include last month’s Wisconsin opinion where the court sought to determine what was meant by two suspected robbers who referred to themselves as the “jack boys.” A court in Tennessee sought to define what a manager accused of sexual harassment by an employee meant when using the phrase “to nut.”

Prior to the inception of Urban Dictionary, courts would hire linguists to conduct surveys of the population to determine what was meant by a slang term, not found in any traditional dictionary. Now, anyone can provide a definition for a word, whether original or not, which must be approved by five other site users before appearing on the site.

While Rutgers law professor Greg Lastowka anticipates that the use of Urban Dictionary will become more prevalent, Peckham points to the inherent problem with using his site as a traditional dictionary:

[P]rivate analyses the site has conducted show that “funny” is the No. 1 reason people give for voting for posts.

Whether courts will take into account the demographics of the users of the site or that anyone and four of their friends can skew results remains to be seen. YOLO.

Via NYTimes.

Stream of Slurs, Threats Not Protected Under Constitution

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The SF Chronicle reported this weekend on a decision by the Fourth District Court of Appeal in San Diego affirming that loud, angry, aggressive, and disruptive language is not constitutionally protected speech.

The case, In re Curtis S. (2013) Cal. Super. Ct. No. JCM230237, came on appeal after a conviction in juvenile court of three counts:  1) petty theft (Pen. Code,  § 484); 2) assault (§ 240); and 3) disturbing another person by loud and unreasonable noise (§ 415, subd. (2)). Testimony revealed that Curtis S., a minor, stole a cell phone from another student and was pursued by a good Samaritan who stopped her car in front of Curtis S., preventing him from getting away. He threw the phone into a construction site and then began yelling obscenities and threatening language at the woman. When she attempted to grab his arm to detain him, he swung at her with a closed fist. According to testimony, Curtis S. called someone on his own cell phone during the altercation and said, “you better get this lady, because I’m about to.” Police arrived and arrested Curtis S. for the theft and for threatening the woman.

On appeal, Curtis S. argued that the purpose of his speech was to communicate and that such speech was protected by the First Amendment. Section 415, subdivision (2) makes it a crime for any person to “maliciously and willfully disturb[] another person by loud and unreasonable noise.” The appellate court relying on In re Brown (1973) 9 Cal.3d 612, 621, found that creating a disturbance by making loud noises, shouting obscenities, and making threats verbally is not protected speech.

Further, the Supreme Court has recognized, “the protections afforded by the First Amendment, however, are not absolute, and . . . the government may regulate certain categories of expression consistent with the Constitution.”  (Virginia v. Black (2003) 538 U.S. 343, 358.)  Words may be restricted under the First Amendment where they are ” ‘ “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” ‘ ”  (Id. at pp. 358-359, citing R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382-383.)

In California, when is speech not protected? When it communicates nothing!

“The loud shouting of obscenities and threats was disruptive, rather than communicative in nature.”

Via SF Chronicle.

Read the opinion.

Medieval Satirists’ Take on Lawyers

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To begin with, a 12th century satirist’s distich, translated from Latin:

If you are looking for wealth, be a doctor or a lawyer
Grammarians and logicians stay poor and needy.

Next, a common comparison of the lawyer and the harlot:

Many study the law these days, not for justice,
But because avarice wishes to acquire more goods.
I beg Christ to confound the jurists;
They are no psalmists, but the harpists of Satan.
The lawyer, the doctor, and the whore are always alert;
If anyone offers them a higher fee, they slip away and follow him.

Examples of the oft-used motifs of the venal tongue and the simonist.

Nowadays no one is worth anything unless he knows how to litigate,
Unless he knows how to cavil carefully in courtrooms,
Unless he knows how to beguile the innocent with frauds,
Unless he knows how to collect heaps of money.

Advice to the new lawyer: “Let him not prostitute his tongue, not expose his speech for sale, not sell the gift of God, not set for hire the free favor of the Lord. Let him not lay out for sale what he has received solely as the gift of grace.” — Alain de Lille

What shall I say of the lawyers?
I will not lie about them for fear:
They have more disgrace among them
Than has a shameful, foolish woman.
Each of them trades on his instruments:
The woman rents her cul for pennies,
And the advocate sells his tongue.
The tongue is a more precious member
Than is the cul; of that I’m sure;
And the sale is thus the more shameful
As the tongue is the more precious.

–Lamentations, Matheolus, 13 cen. French satirist

Via the ABA Journal, March 1960.

Lawyers: Hated Since the Fifth Century (give or take a few hundred years)

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Sylvester Shyster, Disney’s 1930s crooked lawyer who schemed with Peg-Leg Pete to deprive Minnie Mouse of her inheritance

Thanks to a lawsuit alleging over-billing against DLA Piper, an internal email surfaced between attorneys at the firm who joked, “churn that bill, baby!” In order to quell some of the outrage over the untoward comment, this week editors at Slate’s Explainer column delve into the history of attorney billing and present a fascinating story.

According to columnist Forrest Wickman, attorneys were not always so reviled as they are today. In fact, lawyers practicing under the Roman empire enjoyed a kind of respect unheard of since the Middle Ages. Lawyers came from high class families and worked for the public good, collecting modest legal fees and were paid based on their gift of gab rather than encyclopedic knowledge of statutory law.

By the Dark Ages, the Catholic church had developed a tortured code of society. So difficult was the system to crack, specialized interpreters were required to interpret the code. However, attorneys were criticized for charging competitive rates for their trade. So loathsome was this practice that some compared lawyers to Judas, explaining that “he who sells the truth for money sells Christ, who is Truth.

See the rest of the column for more.

Via Slate.

Swordsmen Shortage Leads Saudi Arabia to Consider Banning Beheadings

Saudi Arabia’s perennially condemned practice of execution by beheading may go the way of the dodo due to a shortage in qualified swordsmen, according to Time. Instead, the Saudi government may begin using firing squads to execute convicted criminals, a practice which comports with Saudi Arabia’s Islamic law.

Last year, Saudi Arabia executed at least 69 people by beheading despite the fact that Saudi Arabia has “no penal code, so prosecutors and judges largely define criminal offenses at their discretion,” according to a 2012 Human Rights Watch report. Crimes which are eligible for capital punishment include rape, murder, armed robbery, drug trafficking and even suspected “sorcery.”

Execution by firing squad fell out of favor long ago in the U.S., supplanted with death by lethal injection and the electric chair. The state of Utah executed Ronnie Lee Gardner by firing squad at his election in 2010. Oklahoma is the last state in the union which still permits the practice.

Via Time.

More Unilateral Contracts with Teeth

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From Facebook to the Tonight Show, unilateral contracts abound. This latest high-profile case features the host of Real Time with Bill Maher, Mr. Bill Maher himself, and none other than Donald J. Trump (the J. stands for Just-how-much-money-will-I-waste-on-public-spectacle” [his grandmother’s maiden name]). Mr. Trump’s lawyer provides a synopsis of the unilateral contract at issue through his January 8, 2013 letter:

Dear Mr. Maher:

I represent Mr. Donald J. Trump.  I write on his behalf to accept your offer (made during the Jay Leno Show on January 7, 2013) that Mr. Trump prove he is not the “spawn of his mother having sex with an orangutan.”

Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan. Please remit the $5 million to Mr. Trump immediately and he will ensure that the money be donated to the following five charities in equal amounts: Hurricane Sandy Victims, The Police Athletic League, The American Cancer Society, The March of Dimes, and The Dana-Farber Cancer Institute.

As previously reported here, to enforce a contract the party seeking to enforce the contract must show a meeting of the minds. Said another way, each party must enter the contract in earnest. Neither pretense, jest, nor parody may create the foundation of a contract. An offer made through a joke is not an offer at all and cannot be the basis for a contract. Take this precedence from Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961):

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Mr. Maher said he would donate $5 million to the charity of Trump’s choice if the Mr. Trump could prove he is not the “spawn of his mother having sex with an orangutan.” Mr. Maher was mocking Trump’s much-publicized announcement in October that he would donate $5 million to charity if Obama would release his college records.

While the earnestness of the offer is a matter for the jury, the case will be kicked out as soon as the judge gets the chance, but not before wasting judicial resources on the already strained California Superior Court system.

In other news, attorneys for Mr. Maher have begun a search for an orangutan named Fred C. Trump.

Via Yahoo!.

Read the complaint here.

 

2nd Circuit Court of Appeals Holds Giving a Police Officer the Finger is Not Valid Basis for a Traffic Stop

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Judge Jon O. Newman, writing for a unanimous panel, found that mild-mannered John Swartz did not provide a basis for a traffic stop when he flipped off New York cop Richard Insogna. A little backstory: John and his wife Judy Mayton-Swartz were driving down the highway when John spotted Officer Insogna using a radar gun to tag motorists. John, the passenger in this car, displeased with Officer Insogna’s speed trap, extended his arm out the window of the car and saluted Officer Insogna with one finger. The Court provides a nice little footnote to the history of the middle finger and even a nod to American University Professor of Law Ira Robbins’ article, Digitus Impudicus: The Middle Finger and the Law.

Officer Insogna gave chase and stopped John and Judy in front of their son’s house, ultimately arresting John for disorderly conduct because he may have heard John call himself “an asshole.” John’s criminal case was dismissed based on speedy trial grounds but John responded with a civil rights suit against Officer Insogna.

At deposition, Officer Insogna maintained that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and (3) “I was concerned for the female driver, if there was a domestic dispute.” With raised-eyebrows, Judge Newman disposed of Officer Insogna’s dubious testimony, offering this interpretation:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Even Aristophanes would have to be proud.

Read the opinion Swartz v. Insogna (2d Cir. Ct. of App. 2013) Docket No. 11-2846-CV.

Read Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008).