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Newsletter
Some Good News Not to Report
3/23/2021The newspaper options in New Bern in the 1970s were The “Raleigh" News and Observer and The Sun Journal. My parents took both papers. The papers included the baseball box scores and, between the two of them, all the local and national sports coverage we could imagine. Walking up the driveway to collect the paper every morning or afternoon was part of our routine, especially in the summer. Of course, getting to the sports section meant perusing a little national news and occasionally running across a familiar name in the local section. If that familiar name was associated with some controversy, we read the whole article. We discovered who was in trouble, what lawyers they hired, and which controversies were full-blown scandals. By college, most of us had developed the habit of reading the newspapers daily, usually spread out over the table at breakfast. When I began practicing law, each paper assigned reporters to the local court houses. You learned quickly when to speak and when to keep your mouth shut. Anything uttered in the smoking room at the Durham County Courthouse was clearly off limits. No doubt, though, it provided a lot of “off the record” scoop. These papers exist today. They are circulated world-wide over the Internet, but the reporting is much different. They don’t cover the local courthouses daily, and neither is the paper it once was. I have been thinking about local news coverage this week. Our friend, Mark Ricker, is in the area. Mark grew up in Burlington and graduated from UNC a couple years behind us. When he arrived in New York after college, he and my wife worked together at J. Crew while Mark began a career on the “aesthetic” side of film making. Mark started as an intern on various films, worked in art direction after film school, and ultimately became a production designer. According to Wikipedia, a production designer is responsible for the overall aesthetic of the story. Their job is to help give us a sense of the time, the location, and the characters’ actions and feelings through the sets and settings. Mark was the production designer for films such as Julie Julia, The Help, Trumbo, All the Way, and Ma Rainey’s Black Bottom, films that starred Meryl Streep, Allison Janney, Bryan Cranston, Viola Davis, and the late Chadwick Boseman. Mark is also the friend who stays in touch. He returns children’s texts when they want to interview him for a school project. Mark offers his New York apartment to friends when he's out of town, despite knowing his downstairs neighbors will complain. Mark is humble, kind, and generous. He's loyal and cares for aging parents just like the rest of us. Last Monday, Mark was nominated for an Academy Award for the production design of Ma Rainey’s Black Bottom. I searched The Times News, The Daily Tarheel, and The News and Observer for an article. With the exception of a link to The Los Angeles Times article in The News and Observer, I found no local coverage of the nomination. The local news may not have the interest or capacity to cover it, but Mark’s nomination is some good news for Burlington, UNC, and North Carolina after a really difficult year. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. The Backdrop with Mark Ricker | Ma Rainey's Black Bottom - FYSEE FILM Netflix
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Newsletter
Don't interfere when you are winning
12/21/2020Superior Court Judge J.B. Allen was a rather large man with a big personality. He had white hair, a booming voice, and a no-nonsense approach to the most mundane issue. Some say he was a bit of a bully. I tried my first serious case before Judge Allen. My client was accused of attempted murder and faced decades in prison. Colleagues warned me for days about a loud, controlling, intimidating figure on his way. Despite the warnings, we tried the case largely without incident. My client was convicted of a less serious offense, and the possibility of decades in prison turned into fewer than five years. But I knew who was in charge, and it wasn’t me. As I left for lunch after the verdict, Judge Allen was walking in a different direction. I was a little nervous when he turned toward me. Judge Allen stood close, put his arm on mine, and smiled. “Amos, you done a good job. It come out just like it was supposed to.” Although I have appeared before many judges, I spent a substantial portion of my career in court with Judge Allen. I entered pleas, tried serious offenses, and selected a capital jury. The North Carolina Supreme Court reversed his decisions twice based on petitions I filed. Although he was authoritarian in court, few judges were more pleasant to me or approachable outside court. One morning in the late nineties, I had a hearing before Judge Allen, but was scheduled for another appearance in a district court matter. District court is a lower court and superior court appearances take precedence. Scheduling conflicts are common and most district judges respect our obligations. I finished my case before Judge Allen. As I walked toward district court, a colleague informed me that the presiding district court judge had cited me for contempt. The basis was my absence while appearing before Judge Allen. That seemed odd. The judge should have known I was in superior court. I assumed it was his mistake. When I appeared, the district court judge confirmed the citation and scheduled a contempt hearing despite my explanation. I left surprised, annoyed, and ready to fight. My first plan was to hire a very experienced, smart lawyer with a great reputation named Thomas Maher. He worked at the time with another highly regarded lawyer named David Rudolf. I did not know Tom, but knew I needed him for this fight. I left a message with Tom’s office. He called me back within hours and I explained the situation. By this time, I was on fire and explained that we were tired of the district judge’s bullying, saw this accusation as an affront to the defense bar, and planned to fight. Tom’s response, “no you are not. The judge will settle down, realize he is wrong, and dismiss the citation. You are winning. Save your fight for when you have some exposure.” Tom was right. The judge backed down and dismissed the citation. I didn't get an apology, but didn't make an enemy of a person in power, who had probably had a bad day. A few years later, I moved my office to the same building where Tom practiced. Tom and I shared a small suite of offices. We worked on cases together, represented co-defendants, and traded advice often. After a few years, Tom left for a second career leading the Center for Death Penalty Litigation and later the North Carolina Indigent Defense Service. We remained friends and met many Fridays to commiserate over beers with other lawyers. Now, Tom is leaving the world of policy and joining our practice in January. I am excited, honored, and a bit intimidated. He brings nearly forty years of experience, a keen intellect, and a passion for helping people. Tom and I will work together on serious criminal matters, white collar investigations, and appeals. I look forward to his continued guidance. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Peace and joy over the holidays!
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Newsletter
How to respond to trustafarians
12/14/2020My friend stayed single longer than the rest of our peer group. Not that he didn't have options. Arguably, his delay can be attributed to the fact that my friend was more handsome. Women really liked him and settling down can be a challenge for a young man with his qualities. After college, my friend spent years working in restaurants, running a survey crew, and spending nights sampling good bourbon at Chapel Hill's finer restaurants. After a couple decades of that life, he loaded his guns, a Labrador retriever, and a few clothes into his Toyota Tundra for Colorado. My friend settled in the Boulder area. He is an avid hunter and fisherman and loves to hike, snow shoe, and raft. Sometime during his western journey, he met a woman with a kindred spirit, fell in love, and planned a wedding near Crested Butte, Colorado. I grew up in Eastern North Carolina and am not a skier. I had never heard of Crested Butte, much less flown to Denver, rented a car, and driven hours over mountain roads to get there. But, we wanted to take our young boys out west and, of course, attend my friend's wedding. The trip was worth every minute of the journey, both for the wedding and the town. Crested Butte is in Southwest Colorado, near Gunnison. There is no easy way to get there. The population is around 1600, it's surrounded by beautiful mountains, and the median home price is $711,200. Walking around the .7 square miles of downtown, you can't help but dream of living there. The many coffee shops are super hip. Organic food and yoga studios abound. And if you have young children, like we did at the time, you will not find a cuter school. When I asked a rafting guide what one does in Crested Butte to afford a house in the median price range, he explained the town is populated with people he called "trustafarians." I had never heard the term. According to the Internet, a trustafarian is "a wealthy young person who adopts an alternative lifestyle incorporating elements from non-Western cultures." Carrboro has its share of these folks and one contacted me this week. She did not refer to herself as a "trustafarian." Instead, she called herself an "activist," used the term "comrade" at least once, and explained that another "activist" was concerned for the welfare of one of my clients. Of course, I am concerned for the welfare of all my clients. The difference in our relative positions, however, is that I review investigative reports, conduct my own investigation, and research relevant law. She heard the other "activist's" version of the situation, which could be based on a misunderstanding or just plain bullshit. More important, there are reasons a lawyer's relationship with his client is confidential and the client's communications privileged. When family members pay my client's fees, as is often the case, my engagement letter includes a paragraph explaining some of the reasons I won't talk to the family members about my client's case. Not included is the possibility that the family member will yap to an "activist" who will interfere and undermine my case. The "activist's" message was friendly and I was not offended. Nor did I see any call for a defense. But, I admire some "activists" and felt obligated to respond. I drafted several possibilities before settling on an appropriate response. I offer the unedited list to you. Get a job. My cure for most people with too much time on their hands. Tend to your own @#$5!^* business. Don't worry, I am well aware of the situation and will handle it. I chose the last, of course. Wasn't much more the attorney/client relationship or my goal of civil discourse would allow. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. According to my weather application, Crested Butte's temperatures range between 7 and 27 today, but I am sure there's great snow for skiers with a trust fund.
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Newsletter
Should you turn back now?
11/20/2020It has been a difficult week calling for difficult decisions. We started watching The Queen's Gambit, which one review in The New Yorker called the "most satisfying show on television." It is pretty compelling. But just as we immerse ourselves in Beth Harmon's journey, season four of The Crown is released. It violates binge watching protocol to leave one show and start another, but the Queen is the Queen. We were faced with deciding whether to switch from a story about a girl who is exceptional in almost every way to a story about people who are exceptional almost exclusively by birth. We compromised and rotate between the two. I promise not to spoil either. So far, this season of The Crown focuses on Charles and Diana or, if your wife was born in Yorkshire, the Prince and Princess of Wales. Last night's episode has Diana living in Buckingham Palace during her engagement. Charles is traveling and set to return just before their wedding. She is a teenager, isolated, and subject to unimaginable scrutiny. As she stairs out the window during one scene, I found myself thinking, "get the @#%! out of there before these people destroy your life." And, I knew she was not going to turn back. As I watched that scene, I thought of a client. I admire helpers. The people who always seem to respond when someone is in need. These people have space for an extra person in the tiniest of houses. They love the foster children like their own. They intervene to make peace, give rides to keep others employed, and lend money to stave off evictions. And, that's in addition to working and caring for their own families. My client who came to mind during the show is a helper. Let's call him James. James played college football and planned to be a teacher and coach sports. During his training, however, he discovered a passion for working with disabled children, especially those with autism. And James has a gift with this community. It was his vocation and passion. James managed clients, volunteered with organizations, and led sporting events designed for people with disabilities. In addition, James helps when friends and family call. He and his wife often have an extra child in the home so a single mother can work. When a relative needs a hand around the house, James shows up. To those on the margins, he is a mentor, bank, and taxi. A couple years ago, James finished work and went home to rest. Shortly after he sat down, James got a concerned call from his wife. His brother in law, who had a history of mental illness and substance abuse, was acting bizarre and destroying James' mother in law's home. She asked James to take the brother in law somewhere to settle down. James responded and walked into a situation that he was unprepared, unequipped, and untrained to handle. The man died while James was struggling to remove him from the home. The state charged James with voluntary manslaughter for the brother in law's death. A conviction would have sent him to prison for years. We tried the case last year. After a few days of evidence, a jury rejected voluntary manslaughter, but were divided on involuntary manslaughter. After the judge declared a mistrial, I was relieved that the state failed to convict James, but disappointed that such a decent man had to endure another trial. The trial's toll on James and his family was tremendous. This week, James pleaded guilty to involuntary manslaughter. He avoided any time in jail. Some will call it a triumph. Some may see it as failure. I view it as survival. James made the decision he considered best for himself and his family. This story is not a complaint about the criminal justice system. The state was measured, the judge gave us a good trial, and twelve jurors struggled to find the right verdict. But I worry for the helpers among us. For them, opportunity may obscure the danger. While it's always been that way, it's hard to see James' situation and not wonder, "should you turn back now?" We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. In case you think our dilemma with The Queen's Gambit and The Crown are specific to the pandemic, I assure you our lives were every bit as exciting before, with an occasional high school basketball game as an added distraction.
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Newsletter
You just got to turn some people off
11/6/2020Chapel Hill is a bit of an island in our state. Commonly accepted views here may not be so commonly accepted in other parts of the state. In fact, I am pretty confident that some of the commonly accepted views in my home of over thirty-five years have not made it to New Bern, my home as a child. But Chapel Hill may be considered conservative compared to its western neighbor, Carrboro, also known as "The Paris of the Piedmont." Carrboro's people are eccentric, even among the eccentric. Right in the center of town is Weaver Street Market, a popular and successful food coop. Before the pandemic, Weaver Street bustled with activity and energy. You can still buy all kinds of locally sourced, organic food, but hanging out in the dining room or front lawn is prohibited for now. Normally, the front lawn would be full of people on a nice day. Even on a Tuesday or Wednesday. Even at 10 in the morning or 2 in the afternoon. When my friend’s son asked his advice about selecting a college major, my friend responded, “I don’t know. Ask those people who sit in front of Weaver Street drinking coffee all day what they majored in. It worked out for them.” I know and adore some of these folks. Unfortunately, some have my cell phone number and include me in group texts. Almost every few minutes this week I got a new update or a little wisdom about the election. Random posts abounded from people who appear to have no occupation, much less training in statistics, math, or political science. I was interested in the election too. But that interest coincided with a federal court appearance, a brief due in the Fourth Circuit Court of Appeals, and preparation for court scheduled everyday next week. For most of us, life went on as we voted, counted, and watched the results. I considered several subtle responses to the texts: (1) Could you resume these this evening? (2) We have access to the news, as well. (3) Get a #$%^ *! job. Alas, I finally decided, you just need to turn some people off. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. If you think the group texts are exhausting now, wait until basketball season.
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Newsletter
Sometimes being kind beats being right
10/30/2020A mentor of sorts told me the story of his relationship with his brother. They were close in age and fierce rivals while growing up. They competed at everything. They were not violent, but argued every point. Neither gave ground to the other in making their cases. It continued throughout their childhoods until my mentor left for college. After that, he returned to his family home only for holidays and vacations. Of course, the desired conclusion is that he and his brother missed each other desperately, called regularly, and realized they were best friends. Early in his career, my mentor had a conflict with a colleague. The colleague was a valued member of their team, but had an abrasive personality. My mentor was reserved, cordial and principled. In this particular dispute, he had the support of his team and the security of being right. As he prepared to confront his colleague, a more experienced co-worker quizzed him about his intentions and objectives. My mentor described his argument, explained why it was correct, and provided independent support for his position. "Yes," his co-worker said, "but what do you expect to accomplish?” When my mentor was unable to provide any substantive goal, his co-worker offered a piece of advice: "sometimes being kind beats being right." My mentor thought of his brother immediately. They had not stayed in close touch. In fact, they rarely talked and almost never saw each other. Neither despised or wished ill upon the other. They just put little effort into the relationship. He wondered whether more kindness and less righteousness would have changed that. In the coming days, our votes will determine the next President of the United States and many other important offices. If we were to venture from our bubbles, we would learn that not everyone agrees with our views. Still, we should all vote our consciences. But, when it comes to our discussions, sometimes it’s better to be kind than right. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. If you are having trouble interpreting your conscience, I am happy to suggest a list of candidates. With a very kind heart, of course.
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Newsletter
Maybe it just makes the story better
10/23/2020Richard Riggsbee was a lawyer in Durham, and a character. For many years, he practiced with Bill Cotter, who is still a character. Bill is from Boston, a Vietnam Veteran, and a graduate of Duke Law School. Richard was from Hillsborough, a graduate of Hillsborough High School, and a former assistant clerk of court. In fact, Richard’s last degree was from Hillsborough High School. There was a time when lawyers could study law, sit for the bar exam, and earn a license to practice. According to Bill, Richard was the last lawyer licensed in North Carolina without graduating college, much less law school. On paper, they seem like an odd combination for a law partnership. Knowing them, it is hard to imagine a more suitable pair. When I first practiced criminal law in Durham County over twenty-five years ago, one or the other was often participating in, observing, or pontificating about whatever trial was occurring. They were smart, savvy, and entertaining. Each told his fair share of stories in smoke-filled lawyers’ lounges. Richard attended high school with a Hillsborough lawyer named Lonnie Coleman, who served as a district court judge late in his career. Lonnie would sometimes interrupt court to tell stories. During one such interruption, Lonnie bragged that Richard ran track in high school and was state champion in the mile. He explained that it was especially impressive because Richard ran the race barefoot. Afterward, Richard confronted Lonnie, “you know that’s a damn lie. I didn’t run that race barefoot.” Lonnie’s conceded, “I know, but it makes the story better.” In those days, fear, tension, and excitement surrounded any criminal term of court. Judges, lawyers, and clerks gathered in back rooms to drink coffee, smoke, and tell stories during breaks. Defense lawyers waited in the halls to hear about trials, offer advice, and lend support. People lost their liberties or lived to fight another day. Trying a criminal case is stressful, invigorating, and sometimes heartbreaking. We may cut years off our lives doing this work, but people like Richard, Bill, and Lonnie sure make it entertaining. I thought about them this week when I read concerns over “disinformation” on social media. I am at best a novice when it comes to social media. I look at my Twitter account, but don’t think I have ever Tweeted. I had a short stint on Facebook, but quit to avoid reading some of the unlovely posts by lovely friends and family members. So, I have trouble understanding the idea of “disinformation.” While we may be vulnerable, we have to assume some risks by participating. Can’t we trust our filters? One obvious purpose of social media is to make shit up or, at a minimum, add our individual spin--portray our children in the most positive light, call out the hypocrisy of our adversaries, and exploit differences with others. Even the truth is dispensed in partial batches. Can you tell the whole story in 280 characters? Professionally, Richard, Bill, or Lonnie followed the rules. I would be surprised to hear that they lied to opposing counsel, mislead the court, or did anything to undermine a client’s cause. At the same time, I never put much stock into a story they told to a room full of lawyers and cigarette smoke. We might relieve a little stress by taking that approach to social media. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Richard died a few years ago. Lonnie purports to practice in Hillsborough. Bill Cotter practices law everyday in Durham. I would send him this message, but he doesn't have an email address.
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Newsletter
Can I keep the Booker Prize?
10/16/2020My friend Steve Freedman is a wonderful lawyer. For more than forty years, he worked as a public defender. Steve retired recently from working as an assistant capital defender in North Carolina. As a young lawyer, Steve was assigned a felony marijuana case. His client was a well-dressed, nice looking young man. Like most people, he was taller than Steve, and the prospective jurors could easily see him as jury selection began. Jury selection can be an intimidating experience. The lawyer has a short time to ask questions of complete strangers to decide who may be harmful to his client. Nothing is worse than prospective jurors who refuse to engage with you. Steve decided to determine first who might have extreme views about marijuana. He asked his first question. An awkward silence followed. Everyone stared. Nothing. As Steve started to follow-up, he saw a woman in the back row smile. A man on the front row chuckled. Others looked toward Steve as they began to laugh. As his embarrassment grew, he suddenly realized the prospective jurors were looking past him. Steve turned to see that his client was the only one who had raised his hand in response to the first question: “Who here has never seen marijuana?" The other day, I heard a news report about marijuana. I think it was on NPR, but can’t be sure. My memory is that twenty percent of Americans live in a state where they can smoke or consume marijuana without prosecution by the state. It’s still against federal law. None of that was relevant to my client who dug the marijuana from the landfill in 2000. He had much more than personal use and was treated as a drug trafficker, not a user. The story of exhuming the marijuana has its humorous aspects, but the consequences were very real. At that time, federal sentences were imposed within mandatory sentencing guidelines. After a series of steps to calculate a particular range, the judge was obligated to choose a sentence within the range. These guidelines are generally skewed toward harsh sentences and, frankly, verge on cruelty. In my first federal sentencing, the judge imposed a guidelines sentence of seventeen years for my client convicted of selling cocaine. The sentence was only slightly lower than my client's age at the time. In the case of my client who excavated the marijuana, Judge Tilley had little discretion, which resulted in a sixty-one month sentence. That’s over five years in prison for digging marijuana out of a landfill. But, something significant happened in 2005. In a case called United States v. Booker, the United States Supreme Court held that the sentencing guidelines are advisory, not mandatory. Booker is a complex decision, but for our purposes means that judges are no longer forced to impose a sentence within a particular range. I am confident the Booker decision has saved my clients dozens of years in prison since 2005. Last year, the advisory guidelines for a client in his seventies recommended a sentence substantially longer than ten years. Prior to the Booker decision, the sentencing judge would have been forced to impose this effective life sentence. The same judge who presided over the marijuana case, Judge Tilley, sentenced my client to sixty months. Maybe, it’s comforting to minimize the impact of the inner workings of the Supreme Court on our daily lives: hoisting a Trump flag, attaching a Biden sticker, protesting, speaking out at the school board meeting, or target practicing on Sunday afternoon. But, however you view the world politically, socially, or religiously, the Supreme Court’s decisions have dramatic consequences. Senator Diane Feinstein created a stir following Judge Barrett’s confirmation hearing by praising Chairman Lindsey Graham's management of the hearing and giving him a hug. (Does anyone appear to need a hug more than Lindsey Graham?) I guess there are several ways to view her expressions. One, she is a trader to a cause for embracing a man who presided over an unfair, undemocratic process. Two, she credited a hero who ensured that the Senate carried out its constitutional duty. Three, no matter how deep our differences, we are all Americans and should move to the next matter of business. Me, all I could think was that soon-to-be Justice Barrett’s judicial hero, Justice Scalia, dissented in Booker. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. The jury acquitted Steve's client.
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Newsletter
Will we learn everything from the Tweet?
10/9/2020About twenty years ago, a local Sheriff’s department intercepted a large load of marijuana. Originally, the Sheriff’s deputies got great publicity for their good work: photos before bales of marijuana and reports of the street value redirected. Eventually, everyone wondered what would happen to the marijuana. Well, about 4000 pounds went missing from an Army truck parked behind the Sheriff’s Department. The rest was buried in the landfill, which was too much for a worker at the landfill to keep secret. Word got out, along with a map of the marijuana’s location. As you can imagine, a few enterprising working guys saw an opportunity. They traveled in the dead of night, climbed past the landfill fence, and dug through the hard clay to convert a few bales for use as they were designed. Each explorer agreed to keep the portion he uncovered and disposed of it as he saw fit. I entered the story sometime later. As fate would have it, the men got caught, and I represented one man in federal court. My client’s trial was held before United States District Judge N. Carlton Tilley, Jr. Judge Tilley was appointed by President Reagan. Before his appointment, he followed an ordinary path to becoming a district court judge -- law clerk, assistant United States Attorney, United States Attorney, and private practice as a defense lawyer. That is where the ordinary ends. Judge Tilley's reputation as a trial lawyer was extraordinary. By all accounts, he was relentless in investigation, meticulous in preparation, and exacting in presentation. One fellow lawyer called him the finest trial lawyer he saw in a long career. Judge Tilley is no less precise in the way he presides over a trial. Most notably for today’s message are his rules about questioning witnesses under cross-examination. The Rules of Evidence allow lawyers to ask witnesses leading questions on cross-examination. Most lawyers read that to mean they can make pretty much any statement as long as it’s followed by the phrase “isn’t that true." Judge Tilley reads the rule differently. We can ask a witness “did you go to the store?” We cannot say, “you went to the store?,” even when the emphasis makes it clear the statement is intended as a question. It may sound inconsequential, but it’s a point of contention for some lawyers, who believe Judge Tilley limits their ability to thoroughly exam an adverse witness with leading questions. Judge Tilley responds that his parameters allow for leading questions, just not argumentative ones. Questions asked as interrogatories, instead of statements, result in more information and less argument. I thought of Judge Tilley while considering the response to Judge Amy Coney Barrett’s nomination to the United States Supreme Court and anticipating the upcoming hearings in the Senate. One headline read, “A Dream for the Right, A Nightmare for the Left.” A podcaster assured me that President Trump has negotiated a loyalty oath that puts Roe v. Wade and the Affordable Care Act in jeopardy. During Judge Barrett's confirmation hearing to the Sixth Circuit Court of Appeals, Diane Feinstein asked a nearly three minute long “question” that included the statement “the dogma lives loudly within you.” Twitter has been ablaze with short arguments from all sides. The hearings scheduled to begin Monday are incredibly important. Needless to say, I am concerned about the impact any new appointment will have on issues of criminal justice. There is no way to determine during a confirmation hearing what conclusion a Justice Barrett will reach on a particular issue in a particular criminal case. But we may learn something about her philosophy and approach. We won’t know whether or how the hearings influence the political process. But a sense that Judge Barrett is treated unfairly can’t possibly help her adversaries. Judge Barrett will not concede that she pledged loyalty to anyone or answer how she will decide issues related to abortion or medical care. But we may get some idea of whether or how she will respect precedent. One thing is certain. We will learn a lot more if the senators actually ask her questions. If they put them in the form of an interrogatory, even better. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. More about the trial later.
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Newsletter
Suggested amendments to Principle 1
10/2/2020Several years ago, a famous, extraordinarily successful trial lawyer sent me a book called How to Win Friends Influence People by Dale Carnegie. Over the years, I taught trial advocacy at courses the lawyer organized. He drew the students ordinary lawyers like me helped teach them. In his letter accompanying the book, the lawyer’s message was that Carnegie's principles are our stock and trade as trial lawyers. We are well-served to follow them as we select jurors, interact with courtroom personnel, and question witnesses. It seemed like an odd comparison. But, this lawyer has won hundreds of millions of dollars in jury awards and successfully defended scores of people charged with serious criminal offenses. It’s worth considering his advice on anything related to a court proceeding. I suspect most of you have heard of or even read How to Win Friends Influence People. It’s been in print since 1936. Carnegie's courses were the precursors to the ubiquitous online self-help courses available today. I have been thinking about his ideas after seeing Tuesday’s debate and reviewing responses from all sides to the news that President Trump tested positive for the coronavirus. In Part One, Chapter 1, Carnegie discusses the impact of criticism, complaints, and condemnation. His basic conclusion is that these approaches are “futile” and “dangerous” because they make people defensive and cause "resentment.” They cause us to lose the benefits of relationships. Principle 1 is “[d]on’t criticize, condemn, or complain." The problem is that none of us progresses without constructive feedback. Plus, we live in a world where we respond to messages, texts, and posts in seconds. We hit the thumbs-up or heart instinctually. Can we always be so careful? At trial advocacy trainings, students conduct mock trials. They select juries, make arguments, and examine witnesses. They pay to have more experienced lawyers critique their presentations so they get better and offer a greater service to their clients. The general method of instruction is to (1) highlight the favorable aspects of the presentation, (2) offer feedback about parts that did not work so well, and (3) suggest ways to improve. Thanks to my high school typing teacher, I am a fairly competent typist on the computer, but my children make fun of my approach to typing on my phone. I use one finger, which often means hitting the wrong letters. Before hitting the send arrow, I erase the wrong letter and retype the correct one with the same finger. And, I use punctuation, which exasperates my boys. Inspired by the current political climate and ever-present fear that those same children will say something stupid and irrevocable in a text or on social media, I am offering my amendments to Principle 1. If you have to “criticize, condemn or complain,” consider the following: (1) Try to find something favorable to say first. (2) Fashion the response as constructive feedback, instead of an attack. (3) Type with one finger. It takes longer. You may decide you have nothing constructive to offer before you hit the arrow. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Just a reminder, nothing you type goes away. Website
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Newsletter
Maybe something remarkable will happen
9/23/2020In July, I wrote about the Tour de France. More accurately, I lamented the Tour’s postponement from the traditional schedule. The twenty-one stages of the Tour have run primarily in July since 1903 with the exception of several years over two world wars. I've watched most stages over the last two decades. The pandemic put the Tour in serious difficulty. France and the surrounding countries were hammered last spring. The Tour organizers postponed it until late August, and I had little hope that it would run. I was wrong. The Tour ended this past Saturday in dramatic fashion. Primoz Roglic was favored to win from the beginning. He was the best rider with the best team throughout the Tour. Going into the second to last stage (which is traditionally the last opportunity to change the standings), he had a fifty-seven second time advantage over Tadej Pogacar for the overall classification. Both men are from Slovenia and reportedly close friends. Roglic’s lead seemed insurmountable. He only had to finish within fifty-six seconds of Pogacar’s time. The stage was an uphill time trial, and Roglic is good at time trials. Roglic did his part with a solid fifth place finish on the stage. But, that was not enough against one of the most remarkable individual performances ever. Pogacar won the stage by twenty-six seconds over the second placed rider, Tom Domoulin, who is a former a world time trial champion. He finished more than a minute faster than Roglic. His performance will go down as one of the greatest in a race full of great performances. An August Tour de France surpassed all expectations. Scheduling, health restrictions, and limitations on fans were no match for the spirit that makes the Tour one of the world’s greatest sporting events. Maybe, it offers a little inspiration to get us through the coming months. I am writing from my family farm on the banks of the White Oak River near Emerald Isle. My father lived here as a little boy and an old man. Much of his life was tied to the land and tidal river. He died on September 2nd. His presence in our lives was large. His absence is overwhelming. Still, my mom, my siblings, and I are starting the practice of managing without him, figuring out when to plant winter seeds, where to rotate the horses, and who to call for a hay delivery. It is not the way we scheduled it, but we have our obligations. Thad the cat greets us at the barn every morning. The horses eat the grass, wherever you put them. And, Heidi the goat appears for food every day. Things have changed, and not just around our farm. The balance that keeps the Republic alive is in danger. Many suffer from financial consequences of the pandemic. Leaders continue to highlight our differences over the things that unite us. We don’t know when we will try a case to a jury again. Maybe, Pogacar’s statement is a bold challenge for us. Whether it’s July, the middle of a Pandemic, or in the midst of grief, something remarkable just may happen. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Heidi broke out of her pen last Winter. She comes back everyday to eat, but refuses to be bound.
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Newsletter
Three Steps to Speaking Out
9/11/2020Years ago, I worked for a lawyer who had a tremendous influence over my career. He was kind, affable, and gregarious. These qualities were foundations of his personality. My boss was also smart, tenacious, and savvy, although these qualities were buried deep within a pleasant veneer that may have come off as weakness to some people. One day, my boss reached his limit and fired off an angry response to a disrespectful letter from another lawyer. Before leaving for the weekend, he asked me to review his response. My boss was seething with anger as he grabbed his coat to leave the office. When I asked if he wanted me to mail the letter, he said, ”no, I will think about it over the weekend.” I looked forward to seeing the battle develop. I was enjoying the fireworks: fiery language, confrontational style, and firm limits. After all, I was merely an observer. When I mentioned the letter the following Monday, my boss seemed to have forgotten what had angered him. He modified his fiery language consistent with his natural, friendly tone. Without backing down, he took a less confrontational approach. The letter accomplished his goals in tone, content, and impact. No doubt you have all heard stories of salvation through unsent letters. It’s a common theme of every self-help manual. So, why is it so easy to launch a vicious attack by hitting “send" these days? Some of the loveliest people take on harsh tones in electronic formats. “Likes," “retweets," and "forwarded messages" can do as much damage as unfiltered original content. We should all speak out and take stands on issues important to us. It is important and often necessary. But, doing so is fruitless if we lose our audience through our language, tone, and methods. As someone in the business of influencing other people’s viewpoints, I suggest the following three step approach to speaking out or taking a stand: Identify the problem. Propose a solution. Explain why the solution has value. You are right. I am thinking less about our professional lives than our likely encounters with friends, family, and strangers over the next few weeks. Whatever our political or social views, this approach will improve our interactions and discussions. And, if it delays us hitting the “send” button slightly, we may be richer for it. We represent people accused of criminal offenses and professional misconduct who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. My old boss is well into his seventies, accomplished, and wealthy, but he continues to represent people in major cases: zealously, effectively, and with civility.
