Ask Howard Treesong About Law or Lawyering

[Howard Treesong]

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.

[bobman0330]

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

[Howard Treesong]

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

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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.

[gumpzilla]

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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

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Imprisonment isn't a significant risk?

[gobbomom]

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.

[Howard Treesong]

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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.

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

[James Boston]

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?

[Howard Treesong]

[ 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.

[garcia1000]

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?

[Howard Treesong]

[ 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.

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2) Do you like U2?

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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.