I Miss Alabamy Once Again, And I think It’s a Sin – a Review of “Just Mercy” by Bryan Stevenson

You may not know it, but the tooth brush was invented in Alabama.*

I really love Alabama: my mother is from there. A visit to the Collinsville flea market provides a new story every time I go. A lot of my favorite songs are about Alabama. See the documentary Muscle Shoals. I admit that I get a bit defensive when people pile on that state. Georgia, minus Atlanta, is pretty much Alabama. 

Bryan Stevenson, head of Equal Justice Initiative in Montgomery, Alabama graduated from Harvard Law School. And despite all the opportunities that brought with it, Stevenson forwent all of that to live an adventure.

Right out of school, he moved to Atlanta, then Alabama to represent the impoverished and oppressed. It sounded a little to me like the young idealists that say they want to move to the inner city/developing world and fix the problems there. That’s usually a very naive view of those communities.

On the other hand, for Stevenson, he was right. There were very bright line offenses taking place that he had the ability to rectify. And what strikes me in the end, is that Stevenson gave up the money and prestige and influence after he graduated from Harvard, only to receive it magnified (minus the money) now.

Alabama-love aside, there are some real, very real problems there. The state’s use of judicial override seems so ill advised. That is where a judge can and often does impose the death penalty over the sentence imposed by the jury. See Woodward v. Alabama.

Stevenson carefully describes injustices that are just hard to comprehend. Besides the judicial override, people are placed on death row with so little evidence. I struggle to get my mind around how these things could happen. Our system, which I have no doubt is among the best in the world, has so many checks: the police have to have probable cause, a district attorney has to look at the case, the accused gets a trial and often a plea deal, and then there are several options for appeal even at no expense to the defendant. Still, these guys with solid alibis, no motive, etc. were getting the death penalty.

Confirmation bias on the part of Stevenson just doesn’t explain it way. There are systematic problems that may be a little more pronounced in some geographical areas, but exist in our great system.

Stevenson explains that people are sometimes placed on death row, or given egregious sentences because those particular people aren’t able to put up much resistance. I’ve done appointed work and realized that the person I was representing really didn’t know what was going on and what the consequences would be. He or she just wanted it over. A lazy lawyer could get a client in big trouble without facing too much retribution himself. Second, minorities are frequently victims of conscious and unconscious biases. There’s too much evidence to deny.

I heard a great lecture from Russell Fowler of Legal Aid of East Tennessee who talked about the history of punishment, including trial by ordeal, hue and cry, etc. Trial by ordeal, as you may know, was deciding  the facts by making the perpetrator perform some ordeal, or test. A witch might be thrown in the water to see if she floated, a man might hold scalding hot rocks to see how fast the burns healed.

These things sound ridiculous to our post-Enlightened minds, but they worked very well at the time! The reason they worked was because people believed in them. They actually believed that if you were lying, your sins would find you out.

The same is true of our current system. It’s effectiveness depends not just on logic, but our faith in it. It’s important to have compassionate critics pushing us to better and more thoughtful penal and legal systems. Otherwise, things begin to go sideways.

Stevenson just seems like a remarkable guy. I think the best compliment I can give is Stevenson’s book is that it changed my thinking.

*Otherwise, it would be called a "teeth brush."

Harvard lawyer gives attorneys a bad name

As a small business person, and in representing small businesses, I understand the risks and frustrations posed by contemptibly obnoxious people. A story out of Boston shows how an exquisitely trained lawyer can use his powers for bad:

Last week, Edelman ordered what he thought was $53.35 worth of Chinese food from Sichuan Garden’s Brookline Village location.

Edelman soon came to the horrifying realization that he had been overcharged. By a total of $4.

This Harvard associate professor contested an $4 discrepancy in his bill and the online menu prices to the point of contacting state authorities and asking to speak the the restaurant's attorney.

The email correspondence shows a very courteous and apologetic business owner trying to calm an empowered and silly "victim." Publishing the correspondence has now led to a lot of public shaming. Still, these situations can cause intense stress on a small business owner. 

How to Renew a Judgment in Tennessee

Keeping your judgment enforceable is a fairly straightforward process in Tennessee.

A Tennessee judgment is good for ten years. Tenn. Code Ann. § 28-3-110.

Rule 69.04 of the Tennessee Rules of Civil Procedure allows a party to renew her judgment within ten years from entry of judgment. To do so, the judgment creditor must move the court for such an extension. This is often done in the general sessions court, depending on the amount of the judgment.

Notice must be sent to the judgment debtor’s last known address. Certified mail is not required, but is a good idea. The judgment debtor then has 30 days in which to show cause why the judgment should not be extended.

This process can be repeated basically forever until the judgment is satisfied.

It’s important to note that notice to show cause must be mailed to the debtor (but not, necessarily the motion see King v. King (Tenn. App. 2013). Just filing in court without notice is not enough but is a fairly common mistake.

The motion for extension should be filed before the 10 years is up. If the order is nunc pro tunc (which means “now for then”) to an earlier date, the earlier date is the effective date. Cook v. Alley (Tenn. App. 2013).

If you need help with this, please let me know.

The Practice of Law as Craft

A lawyer is an artist. But how?

Many "artists" are able to take common things and bring out something new and beautiful. In a recent book, Bach: Music in the Castle of Heaven, John Eliot Gardiner writes:

Towards the end of his more than thirty years as music director of Berlin’s Singakademie in 1827, Carl Friedrich Zelter wrote to his friend Goethe, ‘Could I let you hear some happy day one of Sebastian Bach’s motets, you would feel yourself at the centre of the world, as a man like you ought to be. I hear the works for the many hundredth time, and am not finished with them yet, and never will be.’ After knowing them for more than sixty years I feel exactly the same. The glorious freedom that Bach exhibits in his motets, his balletic joy in the praise of his maker and his total certitude in the contemplation of death – this, surely, is the best imaginable response to our mortal entrapment.

If genius exists, then Bach was it as it came to music composition. Part of his brilliance was his insight/ability able to play with the harmonics from a note (which were pleasing to the ear) to create and resolve tension, and then compose multiple lines to be played at the same time. But the music was in the note, Bach just brought it out.

Similarly, Michelangelo commented on his sculpture that “in every block of marble I see a statue as plain as though it stood before me, shaped and perfect in attitude and action.”

Likewise, a good story teller or writer is able to take the cacophony of everyday events, sounds, sayings, etc. and bring out of that a compelling story: the thing the character wants, the conflict/tension that stands in the way and the resolution.

Many business people are likewise able to take common things and combine them in exciting and new ways. Cell phones, smart phones, the ability to look up the answer to pretty much any question on the internet, weren't available actions until relatively recently, but the ether for their creation was out there.

As a lawyer, I often wonder how to create something new using my craft. Fundamentally, that begs the question as to what is the substance of the law. What do you think?

Who can own a tree (or a river)?

I thought that line, long stuck in my head, was from an ancient philosopher. It looks like it’s actually from Ernest Goes to Camp (1987). Still, the question lingers and the answer is probably, “it depends.”

When I travel to my wife’s Idaho, it is obvious that water rights are much different here than back east. God normally waters my lawn in north Georgia, but in eastern Idaho, grass often grows only where the land is artificially irrigated.

Idaho, and the western states, base their water law on “prior appropriation” which is often described as “first in time, first in right.” Under this system, a water right is like a right to land that can be bought, sold, bequeathed without regard to owning the adjoining land. This right is acquired, historically, by diverting (or in some matter of consuming the water) or obtaining a permit. The date this is done gives that water right holder a priority date. Those that obtained water earlier in time, get the water first, in cases of scarcity, like a drought, when there is not enough water to go around.

In the east, the system of water law is known as “riparian rights.” Under this system, the water is not owned, but is part of the land over which it runs. The owners of the land beside or below the water, can use that water reasonably (generally so that water downstream is not diminished in flow or quality).

Among riparian rights, there is a distinction between navigable and unnavigable waters. To that we now turn.

In City of Townsend v. Damico, (Tenn. 2014) a city issued a citation to trespass to Damico for carrying his inner tube from the river across private property to a public road. Damico contested the citation saying that he only sought to avoid going over a water fall, and that he had the right to “portage” around the dangerous area on land, even private land. The Tennessee Appeals Court overturned the trial court to uphold the citation. The river in question was deemed navigable in that inner tubes could float down it. As a navigable stream, “the soil covered by the water, as well as the use of the stream, belongs to the public.” Webster v. Harris, 69 S.W. 782, 784. If not navigable, then the soil beneath the water belongs to the adjoining landowner, but with a public easement on the water for commercial and transportation purposes.

As a navigable stream, Damico had a right to portage around the obstruction onto private property, but he could not simply cross the private property as he did to a public road.

Often times I tell a potential client that she may be right, but it will be more expensive to prove it, than merely paying the ticket or claim. The client often responds “but it’s the principle” which may as well be a cash register ringing. Cases like Damico may not be good for the pocketbook, but they make for good reading.

Murder, Sex and the Art of Cross-Examination

How did the “richest man ever tried for murder,” (and tried again for hiring a hit man) get acquitted? After all, there were two eyewitnesses who saw the murderer and were shot by him as well, and the hiring of the hit man was taped and recorded by the FBI. Part of the answer, (a small but very important part) was the very capable cross-examination skills of the defendant’s attorney, Richard Haynes.

This was thrillingly documented in a book titled Final Justice, by Steven Naifeh and Gregory White Smith who wrote the even more thrilling Mormon Murders. Haynes turned the murder case into a trial of the defendant’s estranged wife, Priscilla Davis, who was shot during the murder and was likely the intended target. She was a buxom blond with lots of sexual misadventures that titillated the jury and turned them against her. She was also very clever herself. However, Haynes started the cross by asking her questions about some very awkward sexual and drug habits which the witnessed fudged, hoping that would be the end of it. Instead, Haynes had vast evidence showing that she was lying about her drug use. From then on Haynes would ask about other awkward situations, which he had made up, but from then on, the witness’ denials fell on the deaf ears of the jury. The jury saw her as deceitful and from then on, they gave her no credibility. The book details the circus that ensued. Among other things, the defense counsel would scour local bars to find witnesses, some were likely paid and were out-and-out liars. But the jury acquitted Cullen Davis after an 8 month trial.

Haynes was evidently a masterful storyteller and had an incredible presence in a courtroom. He used these gifts to get a jury on his side. Not many attorneys can do this the same way, Bobby Lee Cook comes to mind as an exception.

The One Thing to Know About Cross-Examination

Instead, most lawyers need to know one rule when it comes to cross-examination. Which is: ask ONLY leading questions. Do not start with “state your name.” Instead, say “your name is Smith, isn’t that true?”

The goal of cross-examination is to have the attorney testify and the witness just affirm. (So the attorney must know the answers to the questions ahead of time.) When asking very basic questions at the beginning, asking in a leading format puts the witness on his or her heels, afraid to offer up much voluntary material (which will not be beneficial to the cross-examiner). If the witness does not answer “yes” or “no,” the attorney should object and ask the court to inform the witness to answer “yes” or “no.” At this point, the witness is likely to submit to the show.

In Hayne’s case, he didn’t even need to know the answers to the questions. By making the witness out to be a perverted liar from the beginning, he could say anything and the jury believed it over the denials of the witness. That’s not a good thing in the pursuit of justice, but it makes for an interesting read.

So is all fair in love and war?

Peacemaking invites confrontation - Stockholm City Hall as object lesson

Not many people like to be told they are wrong, even if it's good news. Thus, settling disputes is not often like the end of Rocky IV where Rocky ends the cold war thru an impassioned speech and good sportsmanship.

More often, true peacemaking is finding a creative solution, and resisting the binary choices offered by either party in conflict. In other words, telling both sides they are wrong, but in a constructive way.

I recently, on the advice of the Rick Steves show, toured Stockholm City Hall. The Hall is very impressive, constructed only by Swedes about 100 years ago. Above and to the side of the Blue Hall, where the Nobel Prize ceremony is held every December, is the gold room. This room is completely covered in gold mosaic. When the building was being constructed, the designers really wanted gold mosaic even though it wasn't a Swedish art form. They found a Swede to do it, but he was very inexperienced, and not given much time. This is fabulously shown at the end of the hall where the wall was not as high as thought, and as such the patron saint of Stockholm's head is missing.

On the other end, is the Queen of the Lake, representing Sweden. On her left is the west, energetically shown with the US flag, Statue of Liberty and Eiffel Tower.

On her right, more awkwardly, is the East with characters the artist felt were representative. The artist was trying to show Sweden as the bridge from west to east, and as peacemaker. Instead, the Queen of the Lake looks like the Queen of the world. Not to mention, she has big hands, big feet, masculine shoulders and bug eyes. The whole wall was almost torn down due to intense public criticism.

I think it was Lincoln that said the middle ground is often the firmest. However, it takes a strong neutral to maintain it. What do you do when both sides say you are biased, ignorant of the situation, inexperienced and out of your league?

With the Queen of the Lake, the artist later gave a pretty persuasive accounting of his Queen. He defended himself arguing that such an important peacemaker needed big eyes to monitor the situation, strong feet to maintain her ground and broad shoulders to carry such burdens. May we all have those attributes as problem solvers.

P.S. I also learned that Sweden does not have any law against the "unauthorized practice of law." Thus, you can hire anyone to represent you in court, lawyer or not (although it seldom happens). You also have to practice for 5 years, and represent the public for 3 years after passing the bar to call yourself an "advocate."

The Glamorous World of International Arbitration

“Here’s the dilemma. You need 15 more minutes of argument past the time allotted for the arbitration. You’ve heard thru the grapevine that the arbitrator has tickets to the opera (La Scala) and is not going to stay late. What’s your argument?”

That was one of the questions posed at the ICCA conference in Miami, Florida, I recently attended. (The answer is to bring up due process).

While the words “international arbitration” may not make everyone’s heart flutter, it is the method of choice for many big dollar international business disputes. For me, there is a technical proficiency necessary that is very attractive.  As one of the presenters mentioned, it’s more Ronaldo than Messi (more hard work than talent, although both are necessary). Besides that, what’s not to like about traveling to Mauritius, Dubai or Paris and sorting thru muli-million dollar disputes?

The attraction to business is that domesticating and enforcing a judgment from a foreign nation can get long, messy and expensive. Conversely, enforcing an arbitration award is pretty straightforward. Thanks to the New York Convention of 1958, the process consists merely of filing a petition to confirm in the appropriate federal district, with English translation. Once confirmed, the award is entered as a federal district court judgment and is enforceable in the same way.

The Miami meeting came after the main ICCA conference and consisted of about 40 participants from all over the world.

Here are just a few fascinating things I pondered/learned:

How to get a decision maker to think he came up with your answer himself: Sydney Kentridge (who Mandela said was the world’s best lawyer) in making his final argument to the judge, would say he had 7 points. He would then go thru 6 points and say, from these 6 points, the 7 is pretty obvious. Then he sat down and let the judges divine the 7th point. Very gutsy, but it worked for him.

In India, evidently the court system is so back-logged that it would take 300 years to clear out the current cases. It is also evident that Indian attorneys are tired of hearing this statistic. Nonetheless, an Indian advocate has a very short time to make a very earnest plea to a court to even get her client’s matter heard. Because of this, demonstrative movement and impassioned speech becomes necessary and expected.

With advocates from such varied parts of the world coming together, what is the appropriate dress (Brooks Brothers for men; for women, you got me)? How do you address the tribunal (“Mr. __ or Professor __” as opposed to “your honor”)? What do your briefs look like (inter alia, executive summaries are very important, be mindful of being so “complete” that you dilute your arguments)?

Also, how arguments are made to the tribunal becomes a dilemma. American ways tend to creep into everything and an American style cross examination can become more of a show than a substantive effort to discover information. Many tribunals do not like this. Some of the participants mentioned Americans’ tendency to use terms like “fraud” which are an egregious sin in most places, but might be considered puffery coming from an American attorney.

Practicing international arbitration is purely aspirational to me at this point. But there’s no doubt that it is inspiring and motivating to be so consumed with new, big ideas and to hang around with bright people from all over the world. As I came back to the real world, which often seems to be fighting over pots and pans (very important to those involved, mind you) I remember how exciting and diverse the practice of law can be.

The most epic Coke

That's Edward Coke, of course, and it's pronounced "cook." I just finished The Lion and the Throne: The Life and Times of Sir Edward Coke : 1552-1634 and highly recommend it.

In her 1957 book, Catherine Drinker Bowen  makes the old judge and lawyer out to be a very real person. Coke was one of the epic jurists of English and common law. In his early years, he was one of the attorneys in Slade’s Case and Shelley’s Case of 1579. (What is the rule in Shelley’s Case?)

He was a contemporary of Sir Walter Raleigh, John Donne, William Shakespeare, King James, Queen Elizabeth, Oliver Cromwell. He prosecuted nobility and Guy Fawkes (of the Gunpowder Plot to blow up Parliament). He was a big deal and he knew it. He once used his power as judge to chase away his daughter’s suitor. He could be petty in court and would grandstand at times to impress his queen.

He could have bought the world a Coke with the money he had.

What is most fascinating in the book to me is the see how our common law has developed from these roots. It was a much different time: the average lifespan in the late 1500s in London was eight years. Torture was not allowed by law but could be imposed by the queen. Solicitors (but not barristers) were held in very low regard as they were seen as shysters using their knowledge of the system to manipulate and set dissension among otherwise peaceable people.

As now, judges and attorneys used all legal tools to deal with changing times. Often, these legal tools were stretched to the brink of cynicism. In Coke’s day, there were 50 offenses that carried the death penalty and judges bent over backwards to give acquittals. Some of these crimes were not uncommon and the great distinction was who got caught (which was determined by who one’s enemies were).

In the day, juries were not thought of as factfinders, but as witnesses. They had direct knowledge of the case and were expected to act as such. If they decided they couldn’t make a ruling, they filed an “ignoramus” which meant they were ignorant of the truth. (This was a grave embarrassment to the prosecutor who selected the jury in the first place). A play entitled “Ignoramus” was composed mocking Coke, of all people, and that is where our current annotation of “ignoramus” as a fool, comes from. It was his very own alma mater that presented the play, and Coke didn’t deserve this.

"Eg-no-ra-moose" as some say

Paranoia about “outsiders” abounded including the Catholics, now out of power in England, and the Spanish, who were in the ascendant. In 1500s Catholics couldn't swear on Protestant Bible (nor could Puritans). Catholics were persecuted and feared lest they take power. The idea was that the English sovereign would be replaced by a foreign ruler (the pope). Relatedly, Catholics were often hauled into court with conspiracy or treason charges. Often, the accused would resort to “equivocation” wherein he would not lie, but on the other hand would not tell all, or would refuse to answer. At the time, this caused great consternation as swearing an oath on the Bible put one’s soul at risk and the affiant was expected to tell the whole truth, whether directly asked or not. Then, as now, foreign law was distrusted, as it undermined the crown. Coke was very suspicious of such “premunire.”

Parliament and the new King James did not get along. So the King used his equity powers to ignore the common law (via the Court of Chancery). The King had the power to dissolve Parliament when it was about to pass something that didn’t suit him. On the other hand, Coke, who was speaker of the house, used friction with Spain as leverage to make the king acquiesce to Parliament’s power. After all, only by the taxing power of Parliament could the king raise revenue without leading to riots.

Coke is remembered to the ages due to his persistence in adhering to the rule of law instead of the whim of the king. In Bonham’s Case, he went out of his way to hold the king was subject to the law. This, among other things, led him to imprisonment at in the Tower of London. The book makes accessible this epic life.  Great read.

Attorneys would rather be feared than loved?

A 2013 poll found that only 18% of Americans felt that lawyers contributed to society’s well-being, the least of the occupations surveyed. Many blame this sentiment on attorney advertising.

However, lawyer TV ads are supposed to increase the overall administration of justice as the US Supreme Court stated (see below).

An epic 2 Minute Halftime Commercial written and directed by Jamie Casino. The spot features Jamie's brother Michael who was gunned down with his friend on Labor Day 2012. The story reveals how Savannah's Chief of Police, Willie Lovett, deceived the citizens of Savannah after four homicides took place Labor Day weekend.

This ad, for whatever else may be said, is epic. While I would never do it myself, I’m glad it was made. As catchy as it is, two minutes of Super Bowl advertising is costly and it may not bring in enough new business to justify its cost. I want to believe it was made for the love.

Some attorneys take a more abstract approach.

I think it’s safe to say that this ad would turn off people in general. But someone wanting an attorney to fight for her against a criminal charge would see it in a different light.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), SCOTUS ruled that an outright ban on legal advertising was unconstitutional. The Court found that adverting informed the public, improved the administration of justice and need not have a negative effect on the professionalism of the bar.

Most attorney ads on television are for personal injury, medical malpractice and product liability actions where attorneys tend to make a good return on investment. (Otherwise, we may have never heard of a bladder sling or a vaginal mesh.)

More recently, Television commercials offer a steady stream of mesothelioma ads, many presenting themselves as support groups. But in the small print, these commercials are actually attorney ads leading the caller to call a firm and hopefully sign on as a client. Mesothelioma/asbestos ads have become so pervasive, that even web clicks (like Google AdWords) can go for $60 each or amazing, up to $900.

This is because each successful mesothelioma claim is worth about $1.5 to $2 million.

Recently, the plaintiffs’ bar has taken heat for much of the asbestos/mesothelioma litigation.  In In re Garlock Sealing Technologies, LLC (No. 10-31607), the bankruptcy judge blasted the plaintiff’s attorney for misleading the court and the jury about where the plaintiff had been exposed to asbestos. The plaintiff had been exposed to asbestos from many sources but presented to the court that only the sole defendant was to blame. The plaintiff was apparently going after each offender one at a time.

This kind of thing doesn't lend itself to good relations with the public at large. Commentary on the case condemns the poor ethics of the plaintiffs’ attorneys. But the case may be made that these attorneys are doing what it takes to get good results for their clients, even though it enriches their own bottom line. After all, isn't it an attorney’s role to be the bad guy when need be?

What ethical issues do you see in a commercial presenting itself as an information line for an injury when it's actually an attorney referral?