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Arf, Arf, Arf

I'll be out of touch for next six days. My wife has sprung for a stay at a border collie training camp in upstate New York. It was a gift for -- gasp -- my fiftieth birthday.

So off we go, my wife, dogs -- Penelope and Odysseus -- and I. We're headed to an area recently declared a disaster area due to heavy flooding. But, hey, life's an adventure, right?

See you soon, I hope.

How Not to Get a Job

Reportedly a federal law clerk, after being denied a job at Vinson & Elkins, sent the below e-mail asking for reconsideration of his application.  I shall let the thing (especially the second-to-last paragraph) speak for itself:

-----Original Message-----    
From: (omitted)    
Sent: Monday, May 15, 2006 11:25 AM          
Subject: request to reconsider (omitted)          Dear Loreatha,       

  I received your letter dated May 11, and I am extremely disappointed that Vinson & Elkins has chosen not to extend me an offer. I remain convinced that V&E is the right firm for me. While it is hard to quibble with the verdict of a panel of 14 people, I believe that a real mistake was made, and I ask that my application be reconsidered.       

  I assume that V&E's chief objective in hiring new associates is to get the best people it can get. Please consider the fact that in law school, I earned the top score in my section on EVERY PAPER in both of my legal writing courses. (The grading was done anonymously.) My article was selected for publication in the Northwestern Law Review, which is one of the top law reviews in the country. Judge Amy St. Eve, a federal judge with whom I externed, will tell you that I was the best extern she ever had (and her externs were mostly cream-of-the-crop Northwestern students, many of whom went on to federal appellate clerkships). The Judge I work for now, as well as other people with whom I have worked, will tell you that I have unusual talent as a legal analyst. I suggest that before you conclude that I don't measure up to V&E's standards, you ask people with whom I have worked what they think about my work and my abilities. At risk of sounding arrogant, I submit that I would be a standout performer at V&E, even though V&E is an elite firm that can select from among the best candidates.       

  I sensed that some of my interviewers were uncomfortable with the fact that I am not committed to a specific substantive area of law. I would argue, however, that the tools that we bring to the table as lawyers are far more important than the direct, "relevant" experience we bring. "Practical" experience is no substitute for creative intelligence, intellectual sophistication, and pure tenacity. The career clerk in my judge's chambers has 20+ years of experience, so she knows a lot of things that I don't know. But she is not in my league as a legal analyst and writer. I have seen enough during my clerkship to say with confidence that I am capable of better work - far better work - than most of the "experienced" attorneys who practice before my judge.       

  As a judicial clerk, I have been deeply immersed in all sorts of cases at every phase of the litigation process. There are many procedural issues that are common across all different substantive areas of law. There are many connections and overlaps between the different substantive areas. Even within a given substantive area, every case is different, turning on its own facts. The relatively inexperienced associates who specialize in a particular area will have only seen a small part of the universe of possible issues that may arise in their area. Given these facts, I am highly skeptical that, say, a 3rd-year associate who has specialized in "oil and gas" is going to be light years ahead of me in that field. The hypothetical 3rd-year associate will certainly know a lot more than I know about the art and practice of lawyering. But it is highly doubtful that her substantive oil and gas knowledge (which of course exceeds mine) will give her a significant advantage over me when it comes time to analyze the next oil and gas case (which will no doubt involve issues that neither of us have seen before). I want to work on interesting, challenging cases, but I don't believe it would be rational for me to arbitrarily limit myself to a specific substantive area of law at this point in my career. I'll find my niche down the road. I would think that V&E would prefer that their new associates be open-minded enough to try different things.     

   I would also add that there are intangible factors to be considered. I left a lucrative job in my mid-thirties, working hard to score in the top 1% nationwide on the LSAT so I could go to an elite law school. (I was the oldest guy in my class.) When I was a computer programmer, I was a one-man consulting firm, saving my employer (the state of Louisiana) millions of dollars in costs and making the lives of thousands of people (the system's users) easier. Often, I would go to bed at night, half dreaming, half awake, obsessing over a thorny problem that I encountered. When the creative inspiration would come in the morning, those were the greatest thrills of my life. I know what its like to work 80-hour weeks for months on end. I know what's it like to be considered the expert of last resort - the guy they call in the middle of the night when the data gets corrupted and no one else can figure out what to do. I take my work SERIOUSLY and I take great pride in what I do. I would submit that these are the qualities that can make me a "franchise player" at V&E.         

I recognize that the chance that you will reconsider and extend me an offer are very slim. (Lawyers tend to be extremely risk-averse and unwilling to do things differently than they've done before.) But please give this request some serious consideration. I suggest that you begin by talking with some of the folks who have worked with me.         

Finally, if you are not willing to change your verdict on me, would you please do the favor of giving me some honest feedback about why you were not impressed enough with me to make an offer? Is it my age? (I'm 39, but I'm healthier than most 25-year-olds.) Is it that I'm losing my hair? (I am willing to undergo transplants!) Is it the fact that I wore a pink shirt to my interview? (My wife picked it out.) Is it the fact that I took the Louisiana bar exam before taking the Texas bar exam? (I took the Louisiana exam because I wanted to get licensed in my home state, and I wanted to get it out of the way first because I had to learn all that civil code stuff.) Is it because I have spent most of my life in Louisiana? (Houston is only a 3-hour car ride or a 40-minute plane ride from Baton Rouge.) Is it because I have a minor speech impediment (a "lacerated S")? Is it because I am introverted? Do I come across as arrogant? Too timid? Is it because I'm not committed to a specific substantive area of litigation?     

   You judged me as a qualified candidate based on my paper credentials, as evidenced by your willingness to expend the resources to bring me in for an interview. I assure you that I am a much better lawyer than even my paper credentials suggest! Please give me another look. It would be a shame if V&E and me are deprived of a mutually profitable relationship because I failed to present myself well in person on May 8.



A Victory for Rule of Law

Hamdan v. Rumsfeld has the potential to go down in history as one of the most significant Supreme Court decisions of the new century. That is not because the Court trimmed the power of the executive: That's been done before. Recall when Nixon was ordered to turn over tapes, and when Truman's seizure of the steel mills was struck down.

What makes the Hamdan case so significant is not the limit placed on the executive branch, although that is important. The case's true significance comes of the Supreme Court's acknowledgement that we are bound by international law, in this case, the Geneva Convention. Common Article 3 of the Convention requires humane treatment of combatants.

This is, indeed, a triumph of the rule of law.

Absent from this morning's commentary on the decision was the chest-thumping of those who feel that any acknowledgement of international law somehow diminishes our role in the world. We are something less than sovereign if we acknowledge our commitments in the world beyond our borders.

America, love it or leave it is merely a campaign slogan. The fact remains that we are part of a much larger world in which international norms and mores place tangible limits on acceptable behavior by states. We do not diminish ourselves by honoring these limits, indeed, we become larger, we become part of a world community in which we do more than issue proclamations and ultimatums.

Do the detainees at Guantanamo have rights? Yes, under international law, and we are bound to honor them. That is a huge victory for the rule of law in a troubled world.

Dumb, Meet Dumber

"Did you kill Martha Moxley on October 30, 1975?" The witness, summoned to a deposition some 30 years later, pleaded the Fifth Amendment.

"This is a real `wow' to me," exclaimed Tara Knight, the president of the Connecticut Criminal Defense Lawyers Association. She went on to explain that it is unusual to take the Fifth in a civil case, "especially if you have nothing to hide."

Dumb, meet dumber.

Michael Skakel was convicted of the murder in 2002. Several years later, Hubert Santos and Hope Seeley, two of the Connecticut's premiere criminal defense lawyers, found new suspects -- fellows who would have been young black males at the time of the murder.

Ms. Seeley finally deposed one of the new suspects this year. Not surprisingly, the man's lawyer instructed his client to plead the Fifth as to every question. Why feed the flames of this 30 year-old conspiracy theory? A news account of the deposition

It's hard to know who looks more foolish in this latest account of the Skakel case: Is it the president of the criminal defense club, who gushes "wow" over a routine litigation technique?

Or is it The Hartford Courant, for reporting this as though it were a major break in this case?

Or is it Hope Seeley and Hubert Santos, living large on the Kennedy clan's payroll and playing the latest version of blame the Black man.

Close Call In The Senate

I have never burned an American flag, and I don't foresee the desire to do so. Why burn a piece of cloth? It doesn't generate much heat, and you can't cook over it as the flame lasts only moments. All the burning a flag does is make people angry.

But that's the point, isn't it? Burning the flag is an act of protest. It is a symbolic act designed and intended to make a point. Prohibitng flag burning is prohibiting symbolic behavior. Why would we do such a thing?

By a one vote margin, the United States Senate rejected a measure that would have sent to the states for ratificaton a proposed Constitutional Amendment against flag desecration. Had the amendment been passed, it would have become the 28th Amendment. Put another way, we were one vote short of re-entering the Middle Ages.

Somehow I do not doubt that the Amendment would be approved by the states. What lawmaker wants to be accused of not supporting America in this time of never-ending war?

But the flag amendment is the American equivalent of jihad. Take something sublime and beautiful and make it a concrete expression of something small. Islam's message of submission becomes a call to bloodlust; the American commitment to freedom of expression becomes the freedom merely to conform.

Those Senators who voted against the Amendment are now being targeted by flag-waving nutcases. Protect the flag, they say. We'll remember who voted against this amendment, they warn.

Who will protect the rest of us from these literal-minded creeps?  Trust and obey, they cried. America first, along with a heaping helping of God's word. America! Love it or leave it, they cried. All the while they drove American values from our midst, and into a sea of fear and hatred.

We dodged a bullet yesterday. Domestic terrorism, flag-waving style.

My Cousin Joey

Need a lawyer? Someone passionate? A national trial lawyer? Expert in personal injury, securities fraud, RSD cases, boating accidents, felonies, federal crimes, malpractice? Hell, you name it, he can do it. That's can-do as in Semper-Fi Joseph Hawkins Low, IV.  He's the guy the United States Supreme Court, and even The New York Times, called a "specialist in defending drug cases."

California's Joe Low is a go-to guy for everything. Check out one of his many web sites. He Got Game, By Golly Check out the glowing accolades to Low from other lawyers -- all of whom are either staff or alumni of Spence's Trial Lawyer's College.

Low let himself become the issue in the Supreme Court's recent decision regarding Gonzalez-Lopez and the right to counsel. The client heard of Mr. Low from another defendant. (Low had pleaded someone out to favorable terms.) However, the trial court would not permit Low to appear in the Missouri Court. So rather than refund the fee so that the client could get a decent lawyer, Low had a buddy from the Trial Lawyer's College expert in consumer law try the case. Low directed the charade from the spectator's gallery.

This is not lawyering.  This is churning the alumni list of the Trial Lawyer's College for referrals, references and the hermetic security of a secret society.

If I sound sour on this young man, it is because I know him and the college. We met at Gerry SpenceTrial Lawyer's College. It was clear from the moment this young man stepped foot on campus that he had stars in his eyes. He wanted to become a star. He's now on the staff of the college and is parlaying that into referrals from around the country and invitations to speak at rubber chicken events.

I have a hard time understanding a Southern California lawyer who feels the need to play airport lawyer. Does familiarity with his skills not yield enough work? Airport lawyering is a cheap thrill. Ride into town on a plane and pretend to be a hot shot.

Well, God Bless Joe Low. He's living his fantasy, and people are apparently willing to pay dearly to be members of his supporting cast. A new star in the star-studded galaxy of Spence's Neverland Ranch. I wonder if I can get his autograph?

In the meantime, the college can increase its credibility by enacting a rule that prevents staff from soliciting students for cases. The Trial Lawyers College's stated mission is excellence in lawyering. Marketing, however, is the unstated goal of some of its staff.

The Secret Fourth Amendment?

Why does the Foreign Intelligence Surveillance Court (FISC) need a Congressional mandate to enforce the Fourth Amendment? I thought the Constitution was the Supreme law of the land.

Yet there they were last March, five stuffed shirts sans judicial robes, sitting before the Senate Judiciary Committee: the five former judges of the surveillance court were asking Congress to give the Court more authority to oversee electronic surveillance of American citizens. I shudder when I think of the judiciary taking its bearings from the Legislature.

I know the politically correct response to all this is to talk about the counter-majoritarian difficulty. The judiciary is the least popular branch, we are told. Unelected judges ought not to be tinkering with the law of the land.

But limitations on the government's power to search and to seize are too important to be submitted to the rolling referendum of legislative debate. A public besotted by fear yields lawmakers without backbone. A prime example of a lawmaker without commitment to constitutional precept? Rep. Peter King, a New York Republican who has called for criminal investigations of American news media reporting the truth about what the Government is up to. King is a clear and present danger to the American Constitution.

So it is almost refreshing to see that the FISC may finally get up off its backside and scrutinize the recently revealed practice of the NSA to eavesdrop on American citizens. 

What makes this less than reassuring is that the Court somehow can't act without agreement from the executive and legislative branches on whether the issue should be before the Court at all. According to Sen. Arlen Specter, the two nonjudicial branches of government are close to an agreement about submitting the issue to the court.

I am not reassured. Why cast pearls before swine? The judiciary is supposed to be independent. Is the FISC merely half a court? Or is it that both Congress and Executive have so limited that court's jurisdiction as to hobble it?

The Fourth Amendment isn't supposed to be a secret agreement among plutocrats. It is the right of the people to be secure against unreasonable searches and seizures. No reasons of state should place it beyond the reach of any court.