Ask Howard Treesong About Law or Lawyering
 

I for one thought yesterday's thread about the Texas vigilante was thought provoking and thought a more general law thread might be in order. My background: I received my law degree from Duke in 1989, after which I clerked for a federal judge in Atlanta. A federal court of appeal handles appeals from every kind of case: criminal, civil, habeas, INS, you name it. I then started practicing for a huge national firm with a small office in Los Angeles, where I remained for sixteen years. I litigated a fairly wide range of commercial cases (contract, antitrust, commercial tort, copyright, product liability and even a little IP), making partner along the way. A year and a half or so ago, I jumped ship and now manage litigation for a piece of a huge company you all would recognize. My expertise is primarily in litigation, but any questions re career tracks, law practice, or substantive areas are fair game. I'll stay away from overtly political issues (like Guantanamo) even though they might be law-related. My general political leanings are right-libertarian, to the extent that matters.

Flame on! Ask away!

To start the discussion off, I'll relate today's big law news item: the indictment of Richard "Dickie" Scruggs. Scruggs made a ton of money on plaintiffs-side asbestos and tobacco litigation. He is Trent Lott's brother in law. The indictment arises out of a fee dispute over a Katrina case; Scruggs stands accused of paying a state judge $50,000 through an intermediary for a favorable ruling. He is also accused of defying a court order to return certain documents in a separate Katrina case, although that for now is separate from the indictment.

Let me also observe that I thought the vigilante situation was not clear cut. I do not think we should live in a society that permits theft or robbery without significant risk to the perp; at the same time, anyone who is not troubled by the shooter's actions and judgments takes a rather too cavalier view of the value of human life.

Re: Ask Howard Treesong About Law or Lawyering
 

What were the keys to your success at your old firm?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]

Let me also observe that I thought the vigilante situation was not clear cut. I do not think we should live in a society that permits theft or robbery without significant risk to the perp

[/ QUOTE ]

Imprisonment isn't a significant risk?

Re: Ask Howard Treesong About Law or Lawyering
 

I don't have a question as yet, but I wanted to say that I am a big fan Howard, and I will eagerly follow this thread.

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

Is Barry Bonds a criminal now? was he before he was indicted?

Re: Ask Howard Treesong About Law or Lawyering
 

What made you want to become a lawywer? Being accepted into law school usually indicates you are a very capable person and would imply you have a lot of options. Why did you choose law over the other options you had?

Re: Ask Howard Treesong About Law or Lawyering
 

Howard-

You found my last news link interesting, so here's another.

Link

This happened close to me. For those that don't want to read the story, some sick f**ks skinned a dog alive.

Here's the question I'm putting out...

I believe crimes of this nature clearly indicate that the person responsible has a predisposition to much more serious crimes later in life. I know, it's just a dog, but should we treat crimes like this more seriously for the benefit of preventing more serious, future crimes?

Re: Ask Howard Treesong About Law or Lawyering
 

what kind of pro bono work do you do, if any? what area of law do you find the most interesting?

Re: Ask Howard Treesong About Law or Lawyering
 

To ask a less hijacky question than my first, what level of knowledge about the law should a random person have? If it's hard to give a broad answer here, what criteria cause you to adjust your answer?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
What were the keys to your success at your old firm?

[/ QUOTE ]

A fair ability to write clearly and simply. A fair ability to learn useful skills from senior people early one while not adopting their weak points. A willingness to put up with crummy, difficult work for several years and take lessons from it rather than whine. I don't have much raw jury charisma, nor was I much of a client development guy --both of which ultimately limited my career.

I also benefitted from the fact that I really did enjoy significant aspects of the practice. Courtroom time is really a blast in the right circumstances.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
[ QUOTE ]

Let me also observe that I thought the vigilante situation was not clear cut. I do not think we should live in a society that permits theft or robbery without significant risk to the perp

[/ QUOTE ]

Imprisonment isn't a significant risk?

[/ QUOTE ]

Hard to say. I think there are plenty of places in this country where simple theft isn't prosecuted all that often, or, as in my case, where the nearest police station to my house growing up was twenty minutes away, easy. I think the argument is here that private deterrence really does have an impact on this type of crime.

I don't have a good feel for how valid that arugment is, though.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard,

Is Barry Bonds a criminal now? was he before he was indicted?

[/ QUOTE ]

Absolutely not. I think that the label "criminal" requires either a guilty plea or a conviction. I think he is soon to be a criminal because practically everyone on the planet is sure he is guilty as sin, but until that's formal, he's simply the "defendant" or the "accused." According to Bonds's lawyer, Barry is probably a "victim," although I rather obviously disagree with that.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
What made you want to become a lawywer? Being accepted into law school usually indicates you are a very capable person and would imply you have a lot of options. Why did you choose law over the other options you had?

[/ QUOTE ]

I went to MIT as an undergrad and struggled to do well at engineering stuff. Political science and humanities were much easier for me, so I opted out of engineering, got a poli sci degree, and went to law school. Part of that was familiarity: Father Treesong taught law at UCLA for almost forty years. Mother Treesong was a secretary for a Supreme Court Justice and Stepmother Treesong was a lawyer, law professor, and official in government. My brother is also a lawyer; I think there was some benefit being familiar with the general notion of what lawyers did and how.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard-

You found my last news link interesting, so here's another.

Link

This happened close to me. For those that don't want to read the story, some sick f**ks skinned a dog alive.

Here's the question I'm putting out...

I believe crimes of this nature clearly indicate that the person responsible has a predisposition to much more serious crimes later in life. I know, it's just a dog, but should we treat crimes like this more seriously for the benefit of preventing more serious, future crimes?

[/ QUOTE ]

Without doing the research, my recollection is that it's well-established that some significant percentage of mass-murderers and other really evil folks start off with animal cruelty. Logically, though, that doesn't mean that everyone who is cruel to animals turns out to be Ted Bundy. For all we know, only a tiny percentage of animal abusers graduate to more serious crimes. From a due process perspective, I don't think the Constitution permits increased punishment for crimes that a person has not yet committed, so I think the strict answer to your question is no.

I think the idea behind three-strikes laws is to treat recidivism, but the criticism of those those laws is that they sweep in a bunch of people with relatively minor crimes and impose very harsh mandatory sentences.

I have a libertarian nut-job view of animal rights, so I'll stay away from my personal view of this issue unless someone is particularly intersted in it. It's likely to start a threadjack if I articulate it.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
what kind of pro bono work do you do, if any? what area of law do you find the most interesting?

[/ QUOTE ]

In my current role, none -- although I was highly tempted to go roust up a class to sue the Flying Imams on an intentional-infliction of emotional distress case. In the past, I've represented several indigent criminal defendants.

Oddly enough, I'm a process geek and generally avoided a subject-matter specialty. Of all the areas I dabbled in, I liked litigating in bankruptcy courts the best. That's because trials there have no juries and are usually on an accelerated time frame, avoiding the stupid discovery fights that burden down most civil litigation. Plus, a ton of my opponents were bankruptcy lawyers rather than litigators who didn't know enough about the rules of evidence or other trial issues, and at times, litigating against these guys felt like spearing fish in barrel. One transcript I'll remember for a long time:

Witness: Well, the banker told me . . .

Me (interrupting): Objection. Hearsay.

Court: Well?

Enemy lawyer: We really need this testimony, your honor.

Me: shrugs shoulders.

Court: Sustained.

Re: Ask Howard Treesong About Law or Lawyering
 

Two questions for you, sir!

1) What do you think Americans generally feel of the plea bargaining system in America? I am interested in your opinion of this piece, which may or may not be biased:

http://www.ft.com/cms/s/0/2699c7c4-9...0779fd2ac.html

e.g. "Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty."

And so on. Is this the general consensus or just some wacky Brits?


2) Do you like U2?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
To ask a less hijacky question than my first, what level of knowledge about the law should a random person have? If it's hard to give a broad answer here, what criteria cause you to adjust your answer?

[/ QUOTE ]

I think a general survey undergrad course is a good idea. I think you should know what a tort is. I think a general education requires a general working knowledge of the Constitution. And I think it behooves everyone to know at least a little bit about criminal procedure.

After working on a federal court of appeals for a year, I am very very careful to have my hands on the dashboard and radio off by the time a policeman that has pulled me over gets to my car. And before I move my hands, I tell him exactly what I'm doing ("Officer, I'm reaching over to the glove box to get my insurance card.")

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I don't have a question as yet, but I wanted to say that I am a big fan Howard, and I will eagerly follow this thread.

[/ QUOTE ]

Thanks, Gobbo -- although I'm dead-set solid that Oswald was the lone shooter. [img]/images/graemlins/smile.gif[/img]

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Two questions for you, sir!

1) What do you think Americans generally feel of the plea bargaining system in America? I am interested in your opinion of this piece, which may or may not be biased:

http://www.ft.com/cms/s/0/2699c7c4-9...0779fd2ac.html

e.g. "Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty."

And so on. Is this the general consensus or just some wacky Brits?

[/ QUOTE ]

This is a highly contentious issue over here. The current justice department is very aggressive with respect to white-collar criminal prosecutions, and in my view has really pushed the envelope. For example, prosecutors often insist that companies waive the attorney-client privilege and refuse to pay legal fees for executives who have been individually charged. Both rules are horrible, and reflect another facet of the problem your link articulates.

Plea decisions are very, very difficult. And prosecutors are known to add charges just to increase a defendant's risk. I think there's a fair argument to be made that plea demands can be coercive. Speaking rather more personally, I'd likely be willing to trust the jury system if I were unfairly charged -- although I must say that the notion of trying a complex financial accounting case is daunting indeed. That's so not just because it is expensive as all hell to get one to trial, but also because no juror will ever understand complex accounting in a trial setting. Most of the securities laws are written in an ambiguous way that makes them very very difficult to understand, so there's often a huge struggle to define themes intelligently, yet simply enough that a jury will get what's going on.

As for you Brits, I have a case going to trial in London next year, and may be there for some time. I will say that the level of advocacy among the barristers I've seen is very, very high. Some of these guys are really, really impressive.

Part of that comes from a procedural difference in the US system. In civil trials, we get to take testimony from witnesses during discovery, and can test out cross-examination. You UK guys can't, and so are much more practiced at taking what I'd call a "cold" cross, where you see your witness for the very first time in the courtroom.

[ QUOTE ]
2) Do you like U2?

[/ QUOTE ]

Yep. One of my life's great regrets is when some girl in college offered me an extra ticket to a U2 concert. She was kinda hot, but I was sorta committed elsewhere, so I declined -- then soon after ended things with my then GF. Dumb, Howard, dumb.

Re: Ask Howard Treesong About Law or Lawyering
 

HT,

1) Do you legitimately enjoy what you do? Everyone I know who is, was or is studying to be a lawyer seems to hate it and that really turned me off from any consideration of a career in law.

2) What is a crook? A group of friends get into this argument a lot after a little drinking. Side A says it's a criminal. Side B says it's only a thief, arguing that a murderer is clearly not a crook. Side A will concede that but argues that it should encompass more than just robbing someone. What is you legal opinion?

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

I am researching on the logistics of opening an investment adviser firm. How important is a "legal counsel?" The firm will probably needs a legal counsel to draft up a client/adviser agreement [similar to this http://www.evergreenfinancialadvisor...greement.pdf].
A person can write an agreement similar to that but it wouldn't be too smart to not have a lawyer.

Thanks!

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
1) Do you legitimately enjoy what you do? Everyone I know who is, was or is studying to be a lawyer seems to hate it and that really turned me off from any consideration of a career in law.

[/ QUOTE ]

Yep. It has long been fashionable to hate lawyers and law practice, but I only rarely feel that way. It's almost always when I'm in some extended fight with an opponent who is outright dishonest, so you have to protect yourself at every turn -- and that's not fun. I didn't think law school was difficult, and I actually enjoyed it a good bit. Practice was annoying for about my first three years, and got really good after that, after I started getting significant courtroom time. I would say that managing litigation is easier than litigating, but without the adrenaline-charged upside of courtroom practice.

[ QUOTE ]
2) What is a crook? A group of friends get into this argument a lot after a little drinking. Side A says it's a criminal. Side B says it's only a thief, arguing that a murderer is clearly not a crook. Side A will concede that but argues that it should encompass more than just robbing someone. What is you legal opinion?

[/ QUOTE ]

I think "crook" describes rogues -- frauds, sharpers, cheats. I'd say that Ken Lay and Andy Fastow were crooks, but that Ted Bundy was not. Frank Abagnale was the prototypical crook. And Richard Nixon was likewise a crook, despite his protestations to the contrary.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard,

I am researching on the logistics of opening an investment adviser firm. How important is a "legal counsel?" The firm will probably needs a legal counsel to draft up a client/adviser agreement [similar to this .]http://www.evergreenfinancialadvisors.com/documents/investment_mgmt_agreement.pdf].
A person can write an agreement similar to that but it wouldn't be too smart to not have a lawyer.

Thanks!

[/ QUOTE ]

I would say critical. I have no idea what the regulatory environment is for such firms, but I submit that regulatory noncompliance would be a death knell for a financial advisory form. The link doesn't work, but I'm guessing the agreement is a client agreement designed to ward off suitability or churning claims. I've litigated a couple, and the agreements do matter -- so my strong advice is to hire counsel.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]

From a due process perspective, I don't think the Constitution permits increased punishment for crimes that a person has not yet committed, so I think the strict answer to your question is no.


[/ QUOTE ]

There are like a thousand sex crime related statutes that disagree with you on this.

Also, I'm a libertarian gun-nut and I would not feel the slightest bit of outrage if those guys were summarily put to death.
Not to tangent the thread, just pointing out that you've likely misidentified the philosophical underpinnings of your implied narrow view on what constitutes cruelty to animals.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
There are like a thousand sex crime related statutes that disagree with you on this.

[/ QUOTE ]

I'm thinking you're referring to things like registration statutes and residency limitations. I suspect without knowing that those are pitched as preventive measures rather than as additional punishments. I also could easily be missing your point, so if I am please describe one of the statutes to which you refer.

[ QUOTE ]
Also, I'm a libertarian gun-nut and I would not feel the slightest bit of outrage if those guys were summarily put to death.

[/ QUOTE ]

Morally, I'm 100% with you. The guys that did this are total scum. But I don't think animals have rights per se; I think they are property -- and the rights violation here is to the property of the animal's owner.

[ QUOTE ]
Not to tangent the thread, just pointing out that you've likely misidentified the philosophical underpinnings of your implied narrow view on what constitutes cruelty to animals.

[/ QUOTE ]

I don't think I have a narrow view of what is cruel to animals, but rather what should be criminalized.

Re: Ask Howard Treesong About Law or Lawyering
 

Thanks for taking the time to start this thread. I always value any perspective that comes from pesonal experience.

1. Please provide your thoughts on conflict criminology strictly as it relates to crime being a busines for the state. There is, in my opinion, validity in the argument that some laws and sentencing strutures appear to be designed to ensnare and retain people in the criminal justice system.

2. Your position on capital punishmet. Although I believe that people can commit acts that remove their rights, including their right to life, due to the state's inherrent inefficiency (inequality of representation, potential for outside influence, prejudice etc.) I can not support the death penalty.

3. What is the least amount of money over which you would kill someone?

4. Generally speaking, with regard to the legal system as a whole (including the criminal justice system), I think that most of the people working in the profession, most of the time, are doing the right thing. Agree/disagree?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I have a libertarian nut-job view of animal rights, so I'll stay away from my personal view of this issue unless someone is particularly intersted in it. It's likely to start a threadjack if I articulate it.


[/ QUOTE ]
DO IT

Re: Ask Howard Treesong About Law or Lawyering
 

HT,

1: Don't threadjack w/ it. Do start a new thread on that, though.

2: Do you watch Law & Order (or have you ever)? If so, what is your general impression of the courtroom scenes, specifically the motions/objections/etc. that are made?

Re: Ask Howard Treesong About Law or Lawyering
 

Quick Noob Q: Thoughts on Gerry Spence and Cochran, probably the two most famous lawyers of our generation?

Re: Ask Howard Treesong About Law or Lawyering
 

Good questions. I can't get to 2p2 from work and will answer these tonight rather than jam out a really quick response now.

Re: Ask Howard Treesong About Law or Lawyering
 

Why do you think juries are so pro-prosecution in criminal cases? I've seen statistics that indicate conviction rates of 75%+ in some jurisdictions. Given how easy it is for prosecutors to get indictments, There should be a LOT more aquitals in our court system. It's very very difficult to prove that a person did something beyond a reasonable doubt. Especially given constitutional limitations and rules of evidence. Just looking at the design of the U.S. criminal justice system on paper, I would guess the conviction rate should be somewhere between 15-25%.

I think the two factors that contribute most to this phenomenon are the facts that sample of the population that serves on criminal juries is skewed towards excessively pro-government people, and the police/prosecution have exponentially more resources at their disposal than your average defendant.

Any thoughts on this?

Do you think there's a chance that this bug in the system can/will be fixed?

Re: Ask Howard Treesong About Law or Lawyering
 

this is very me specific, but im hoping you could answer anyways:

My brother is debating between law schools and has a full preacceptance scholarship offer from GWU. If he accepts the conditions is he has to go there. Im wondering 1) What can they do if he doesnt? And 2) It is that much more highly regarded than a canadian school like University of Toronto or Mcgill?

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

How did you come to make the transition from big firm to in-house? Was your new employer a former client? How does being an in-house lawyer compare to being a partner at a firm?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
this is very me specific, but im hoping you could answer anyways:

My brother is debating between law schools and has a full preacceptance scholarship offer from GWU. If he accepts the conditions is he has to go there. Im wondering 1) What can they do if he doesnt? And 2) It is that much more highly regarded than a canadian school like University of Toronto or Mcgill?

[/ QUOTE ]

I would be surprised if it weren't less regarded, generally. Looking at rankings online, it looks like Toronto and McGill are 2 of the 3 most esteemed law schools in Canada, and GWU is in the 20s in the US. Especially if he wants to practice in Canada, the Canadian schools seem like a better bet, but a free ride is nothing to sneeze at here.

Re: Ask Howard Treesong About Law or Lawyering
 

Where is your brother hoping to practice? If he wants to practice in Canada, then it's a no-brainer--go to one of the Canadian schools.

If he wants to be in the U.S., then a solid middle-first-tier school like GWU is probably going to open more doors than even a top-ranked Canadian school. (Incidentally, if UT and McGill were lumped in to the U.S. market, I doubt they'd be ranked that much higher than 20th.)

Some major U.S. firms might hire an applicant or two a year from top Canadian law schools, but recruiting and alumni networks are much more focused on American schools.

Also, GWU has some very good young faculty members and is aggressively building its reputation. I wouldn't be surprised to see it move up in the rankings over the next few years--I think it'll certainly break the top 20, and may move up to the mid-teens.

No idea what the consequences of breaking a "preacceptance condition" would be. I imagine the school would just blackball you if you tried to reapply in the future; not sure if they'd be able to do more than that.

Re: Ask Howard Treesong About Law or Lawyering
 

HT,

Long time no talk, how the heck are ya??

1. If you're arrested or brought in for questioning for something you didn't do, how long before you should ask for your lawyer?

2. Same question, but you DID do it.

3. El Diablo asked first, but I was going to ask about Law & Order as well.

T

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

I'm a young attorney, just licensed, and your last job as a civil litigator is exactly what I want to be doing in 5-8 years.

In terms of preparing myself for that, would you say that a job in the DA's office, the City Attorney's office, or a small general practice civil firm would be best?

Re: Ask Howard Treesong About Law or Lawyering
 

What would you advise this guy to do? He ignored a jury summons and now has his own court date on misdemeanor charges.

Re: Ask Howard Treesong About Law or Lawyering
 

Interesting, I studied engineering before becoming a lawyer, worked in BigLaw and am now basically in-house (no timesheets!). Incidentally, I’m chickening out of the Joe Horn conviction prop bet. After a second reading of the statutes I think he will almost certainly get off.

Re: Ask Howard Treesong About Law or Lawyering
 

Hi HT,

2 questions, completed unrelated, 1 dated & irrelevant now...

wrt the MSFT anti-trust case like, 8 or 9 years ago? It was about MSFT bundling IE with Windows versus people having to pay for Netscape. I didn't understand why MSFT lawyers never presented the case as a water company offering water freely available to drink as part of your water bill (IE) versus people buying bottled water to drink (Netscape). No one's ever sued the water company for giving away water that people could buy... That analogy seems apt to me and I don't understand why it wouldn't be applicable...?

Frivolous lawsuits (& the costs of defending/settling them) are oftentimes identified as a key driver of insurance premiums. I don't expect that you to be subject-matter-expert in this space, but from your view of the elephant, are they? If so, are there any process/procedural "fixes" you could put in place to curtail them? I've always thought that instead of capping the amount you could win in a lawsuit, you should fix the % that a lawyer can earn off medical claims (tho I think you might create a problem where lawyers will only cherrypick the easiest/most profitable cases) Your thoughts?