Saturday, September 09, 2006


Legal Blog Watch
Reaching Into Ken Lay's Grave
If the law in a case is against you, here is a unique approach you might try: Ask the judge to delay ruling while you lobby Congress to change the law retroactively. Might work -- or at least the Department of Justice's Enron Task Force believes it might as it tries to keep Ken Lay's conviction alive even though Lay is not.

Lay, of course, is the former Enron executive who was convicted in May on 10 counts of fraud. He was scheduled to be sentenced Oct. 23, but on July 5 he suffered a heart attack and died. Relying on the legal doctrine that abates a criminal conviction when a defendant dies before he can seek appellate review, Lay's estate has asked U.S. District Judge Sim Lake to lift Lay's conviction. That would be bad news for the government, which continues to pursue a $43.5 million criminal forfeiture case against Lay's estate. Abatement would expunge Lay's record, preventing prosecutors from using his conviction to support the forfeiture.

Which brings us to the Justice Department's creative request. As the Houston Chronicle reports, Justice has filed legislation that would effectively prevent courts from vacating criminal convictions. The proposed law would, conveniently, be retroactive to July 1 and would provide that a criminal defendant's death would not be grounds for abating or invalidating either a verdict or the underlying indictment. On Wednesday, Justice filed a motion asking Judge Lake to hold off any ruling on abatement until the original sentencing date of Oct. 23 in order to give Congress time to consider its proposed legislation.

This turn of events in the Enron case has legal bloggers wondering whether the Enron Task Force has too much time on its hands or simply is in need of adult supervision. Peter J. Henning raises the first question at White Collar Crime Prof Blog, where he writes:

"The proposed bill and accompanying documents seem to represent a significant effort on the part of the Department of Justice, and raises in my mind this question: Does the Enron Task Force have too much free time?  The number of cases in which abatement will occur is fairly small, I suspect, and it's not as if the government does not have access to civil forfeiture to recover Lay's assets.  A less expeditious tool, but then Lay did die, so it's not as if he's trying to duck out on a potential penalty."

The second question comes  by way of Houston lawyer Tom Kirkendall, who says the Task Force is in need of adult supervision:

"Given the Task Force's lengthy track record of exhibiting dubious judgment, its over-the-top response to the Lay Estate motion is really not surprising. However, it is a stark reminder that the use of the overwhelming power of government to criminalize business executives -- now even in death -- is seriously out of hand, as even some prominent former Justice Department officials are now acknowledging publicly. As Sir Thomas More reminds us, we better address the difficult task of curtailing use of that power, lest it be used on us."

Houston Chronicle blogger Loren Steffy calls these moves "an audacious attempt ... to create a law to reach, quite literally, into the grave." If so, the fate of Ken Lay's corpse is now in the hands of Judge Lake.

Posted by Robert J. Ambrogi on September 8, 2006 at 12:23 PM | Permalink

Defending Against the Lawyer Joke
Lawyer Peter D. Baird has heard his share of lawyer jokes involving sharks, leeches or the blistering fires of hell. Earlier in his career, he considered such jokes beyond his control, the result of bad lawyers and rigid stereotypes. But decades of practice have changed his mind, he says. He now believes that anti-lawyer sentiment comes more from matters within our control than outside it. All of this got him thinking about the high esteem his father held in the rural Idaho town where he grew up. His father, "an old-fashioned, bag-toting general practitioner M.D.," had something most lawyers lack, he realized -- bedside manners.

So the Phoenix litigator, in his essay, Bedside Manners for Lawyers, published this month by the American Bar Association Section of Litigation, offers his thoughts on how lawyers can take a cue from doctors and improve their image along the way. Baird starts with the lawyer's vocabulary, which, he realized, is distancing in a way that a doctor's is not:

My father inwardly "treated" patients, and I outwardly "represent" clients. He "took histories," and I "gather facts." He spoke of "healing," and I talk of "winning." He worried about a patient's "candidacy," and I worry about a client's "claim." He referred to his cases by patient name and affliction (e.g., "Inez Nelson's heart condition"), and I refer to my cases by legal problem as if they belong to me (e.g., "my securities case").

And while Baird -- a partner with Lewis and Roca -- says that as a lawyer he learned to apply the companion arts of questioning and listening in the courtroom, he seemed to forget those lessons when he returned to his office.

Unfortunately, outsid e court I seem to forget all about using direct questions that will encourage clients or witnesses to tell me their truths in their own words. Instead, I pepper them with leading questions that tend to drag them away from their realities and toward my preconceived assumptions. That's not asking questions; that's manipulating. And to make matters worse, I am rarely conscious of it.

When Baird's father counseled patients, he did so by being "an intense listener" and "compassionately blunt." Baird, by contrast, often counseled clients "on the erroneous  premise that 'counseling' consisted more of my talking than my listening." Baird says that he cannot explain why it took him so long to adopt his father's bedside manners, but he suggests the answer probably lies in Mark Twain's remark, "The older I got, the smarter my father became."

Posted by Robert J. Ambrogi on September 8, 2006 at 12:21 PM | Permalink

Justice Not Blind to Web Access
Retailer Target stores must make its Web site, www.target.com, accessible to the blind, U.S. District Judge Marilyn Hall Patel ruled this week in San Francisco. Patel did not decide whether Target's site is inaccessible, the San Francisco Chronicle reports, but she allowed the lawsuit under the Americans With Disabilites Act to go forward. In so doing, the Chronicle said, "she rejected Target's argument that the discrimination laws prohibit only physical barriers to a company's stores or products."

The suit, filed by the National Federation of the Blind and others, alleged that Target's site lacked simple features that would enable the blind to use it, including an embedded code that can be read by software to provide a vocal description of the page. The Minneapolis-based company contended that the ADA did not apply to its Web site and that, even if it did, its site is accessible.

Posted by Robert J. Ambrogi on September 8, 2006 at 12:16 PM | Permalink

N.Y. Nixes Lawyer's Faxed Advisories
The courts just can't resist the urge to micromanage lawyer marketing, says Larry Bodine at his Professional Services Marketing Blog. As case in point, he reports that a Manhattan judge has prohibited a lawyer from faxing advisories about legal malpractice issues and cases because they indirectly highlight the lawyer's availability to represent clients in such matters. Says Bodine: "Give me a break."

The lawyer, Andrew Lavoott Bluestone, sent his Attorney Malpractice Report unsolicited to several lawyers by fax. One recipient sued Bluestone, alleging that the advisories violated the federal Telephone Consumer Protection Act. Bluestone countered that the faxes were intended to educate the legal community about malpractice, not serve as ads. The judge didn't buy Bluestone's argument, issuing summary judgment against him in an Aug. 25 decision.

As it turns out, it was Bluestone's second loss in court over his unsolicited faxes, Bodine reports. The same judge had previously ruled against Bluestone in a similar 2004 lawsuit. Lesson learned, Bodine says, Bluestone turned last year to "an even more cutting-edge method of spreading the word." What might that be? Yes, he launched a legal malpractice blog.

Posted by Robert J. Ambrogi on September 8, 2006 at 12:15 PM | Permalink