So apparently, when a very angry federal judge yells at you that you didn't point out something in your papers, and asks why you didn't, he's not looking for the answer "Because I thought it was self-evident, Your Honor."

But he cut the government's requested sentence in half, anyway, and gave the client all the time he wanted to surrender.

I probably shouldn't have said it. But to paraphrase Capt. Malcolm Reynolds, "Well, they tell you never antagonize a federal judge, but it is, on occasion, hilarious."

Via Legal Blog Watch, I discovered the American Gallery of Juror Art, a collection of stuff that jurors have drawn during the process of being picked, observing trials, and deliberating. I like this observation of fellow jurors with translations of the scribble on the next page.

This is much less upsetting than most other things I can imagine jurors focusing on during a trial. I'm firmly in the worst-system-except-for-all-the-others camp, at least for criminal cases. I've never talked to a jury after a trial without being appalled by at least one statement by a juror; someone always lets fly with a comment revealing some vast gulf of incomprehension or some bizarre root-through-the-entrails method of decisionmaking or some contemptible prejudice. In that respect I'm lucky I'm not a woman; my female trial attorney friends say that some juror inevitably comments on their appearance after a trial on top of everything else.

As a defense lawyer, I'm satisfied that a jury has the potential to live up to its fabled role as a bulwark between a cruel or indifferent state and the individual. I've had some juries fulfill that role, taking a principled and aggressive approach to reasonable doubt and even nullifying in the face of patent injustice. But I've stopped pretending that I have my finder on the pulse of why one jury does it and another doesn't. I'm convinced it isn't the quality of my advocacy — I've given some of my best performances in losing cases and been surprised to win others. It isn't just the facts of any particular case — I've seen loser cases win, and vice-versa. It's got to be the human element — the vagaries of the particular pack of twelve folks who wind up in the box, and their mood and self-image that week.

This is why I get stomach cramps during voir dire.

Being a law firm means throwing holiday parties and circulating a brilliantly grim party reminder to annihilate any living person's desire to attend. Read it and imagine, just for a moment, being the person who has to write it and distribute it. That person, I submit, is at least as pathetic a figure as Tiny Tim.

The opening statement was prepared and practiced, with a power-point presentation complete with video clips and highlighted documents. The twenty-three pretrial motions were briefed and annotated and outlined for argument. Dueling jury instructions were prepped and ready. And the cross-examination of the most crucial witness — the plaintiff — was prepared, again with video clips and documents. The high-tech exhibit presentation system was paid for and learned.

And then we got the case dismissed the morning of trial.

That's the way it goes sometimes. You prepare for a lot of trials that you don't actually get to do. It happened more frequently as a prosecutor, but it still happens in civil practice.

Now I'm at loose ends. My nerves are still all jingly-jangly. I still snapped awake at 4 a.m., as I have been every day. I'm still in trial mode — high-energy, vigilant, kind of jittery. Dump that on top of the unusually high anxiety levels that come with a depressive cycle and you don't exactly have a recipe for calm.

But this will pass. Suddenly my month is wide open. All the small projects pushed aside can be taken up again. All the firm management tasks can be addressed. And I can actually see my kids before they go to bed on some days.

I'm not chilling yet. But I will be soon.

Trial, day one.

Case dismissed.

Why?  It's very technical.  The short answer is that I am made of awesome.

Every summer, the biggest and most expensive law firms in America conduct a curious ritual involving the nation's "top law students" — by which I mean students at the top-ranked law schools who don't drool on themselves during on-campus interviews and who, by dint of some combination of effort, luck, and the randomness of law school grades, have performed respectably well so far. The ritual involves hiring a group of the students, paying them lunatic amounts unrelated to their ability to perform useful work (around $2,400 per week for top New York firms), and wooing them with parties, concert tickets, beach outings, expensive dinners, great seats at the game, etc. All of this is intended to convince them that they will dwell in sunny and peaceful meadows should they take the firm's offer for permanent employment at the end of the summer.

Of course, the sunniest and most floral-intensive meadow is going to suck if you have to bill between 2100 and 2400 hours per year in it reviewing Indiana-Jonesish warehouses full of documents just to stay afloat and meet your monthly nut on that new leased car, not to mention your student loans. But the firms don't tend to emphasize that part up front. They put an amazing effort into convincing their summer associates that life at BigLaw is challenging but livable, with nary a sociopathic senior partner to be seen. And the dinners, sporting events, and outings continue to flow, even in difficult economic times.

There's an amusing side-effect to that campaign of wine and roses — some of the more foolish summer associates become convinced that they are golden and irreplaceable, and thus invulnerable to the consequences of the sort of behavior that would get them axed from a more mundane job. In fact, they're fungible. The top 10 law schools churn out about 3500 students per year, and that's a lot more than the top Biglaw firms need, thank you.

But law students being paid $2,400 per week to display the drinking skills they picked up at Yale or Stanford or Chicago are slow to learn that.

This could be tragic. Instead, it turns out to be a yearly source of entertainment. Example: summer associates at a Napa retreat for lawyers from Morrison & Foerster, unaffectionately known as MoFo in legal circles, got drunk, got tired of waiting for the shuttle at their ritzy resort, and decided to boost a car from the valet – and persisted in their efforts even after being caught in the act by the firm recruiter, one of the damned souls who rides herd over these scions and their truculent demands.

These students will get the dreaded no-offer call.

If you think that's a fluke, you'd be wrong. That's why the blog Above the Law is a source of delight every summer with its coverage of summer associate issues.

Edit: Dave points out that I carelessly used a 2000 salary chart, and that summer associate salaries are top firms are at $3,000 per week now.

As a society, we often assume that if someone is a master of a skill, they can teach that skill — perhaps masterfully. Hence retired athletes become coaches, great artists give master classes, and the famous get paid infamously for seminars.

Is it all bullshit?

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When I became a federal prosecutor, the day OJ was acquitted, I was barely 26. I may have been the youngest federal prosecutor in the country at that moment, though there have been younger ones at other times. But I always resented the complaining about how young prosecutors don't understand the real world, don't understand defendants' circumstances, don't have any perspective. I rolled my eyes and gritted my teeth when veteran defense attorneys would launch into rants that began "when I was an AUSA . . . ." in an effort to twist my arm to offer some deal or other.

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. . . and the jurors. My God, the jurors.

In the case I was observing today, an alternate juror began weeping quietly after being picked as an alternate for a multi-week trial. They were not tears of joy. She hadn't said anything about hardship during voir dire, so everyone was mystified. She wept more in the hall during breaks, and looked red-eyed and teary during opening arguments. (And it ain't a teary case).

None of the lawyers or judge or bailiff noticed until after she was sworn, so they couldn't just add another. The rest of the voir dire panel was excused. So now they're having a closed-door hearing about it, and they may end up with only 3 alternates for a trial that could go six weeks.

But that's small potatoes, baby. For the real havoc that an unbalanced juror can cause, check out what just happened in Riverside, California in the federal court girlfight between Barbie and the Bratz chicks. The suit concerns whether the Bratz creator came up with the noxious hos before he left the Matel mother ship. It's a bruising fight between lawyers at Skadden Arps (New York vast Biglaw powerhouse that defines establishment) and Quinn Emanuel (Los Angeles hyper-aggressive frat-style bare-knuckled litigation powerhouse, where a partner once got in trouble for sending promotional mailings to potential clients in the form of a realistic-looking replica grenade with the slogan "litigation is war," resulting in several bomb-squad calls). Skadden and Quinn have been in a fight that I'm sure is generating many millions in fees, and getting into infamous squabbles such as when Skadden tried to enter into a side deal with the nicest hotel in Riverside (which is like being the most chaste member of Paris Hilton's entourage) to exclude Quinn's lawyers. These lawyers are not just being assholes. They're being $1000 an hour assholes.

Anyway, millions have gone into getting this far in the case. Mattel (represented by Quinn) won the first round on liability and was cruising into the damages phase when everyone learned that one of the eight jurors had made racist remarks about Iranians — in reaction to the testimony of the president of MGA (which owns Bratz), an Iranian-born Jew — during deliberations. Judge Stephen Larson inquired carefully of the jurors and determined that, though the slurs were made, it was late in deliberations and did not impact the result. But now the hair is on the cake. The Bratz folks are screaming racism and there will be a significant appellate issue. As a result — because of one bigoted asshole juror — Mattel's share price dropped by 3% as the market reacted to what was previously thought to be a solid (and multi-hundred-million-dollar) win for Mattel.

Judge Larson will hear the mistrial motion next week. I knew him when he was a organized crime prosecutor; he's smart and relentless and honest, and he'll get it right.

Jurors suck.

I'm seriously thinking of writing a travelogue to California's federal prisons. I've done Victorville a number of times already, Lompoc, and yesterday Taft.

Let's just say that I am not shopping for a vacation home.

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Next up on Popehat's "lawyers behaving badly" day, attorney James W. Smith and the behavioral hazard of depositions.

A lot of the worst attorney conduct you'll encounter in the course of law practice happens in depositions. There are all sorts of factors driving it. Because depositions play out the facts and issues of the case through live testimony rather than dull written interrogatories, tensions and drama are high. The client is often there — either as the deponent, or to observe — which encourages certain lawyers to act up in an effort to earn their keep, the way a dog will bark extra hard at the mailman when his owner is in earshot. The structure of depositions lends itself to speaking objections, which are often calculated to irritate the other side. Many questioning tactics are specifically designed to throw a witness off her game, and thus draw more favorable testimony. Such tactics (like sarcasm, incredulity, bullying, sneering, and other bad-cop questioning tactics) irritate the hell out of everybody. So two attorneys who have cooperated and acted like the soul of gentility through most of a case can be at each other's throats after twenty minutes with a court reporter.

None of that explains the capacity of some lawyers like James W. Smith to act like unregenerate choads.

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So we're moving my firm from a small space to a much bigger space in the building —- about 3 times as big. It's come a long way since there were just two lawyers and a secretary.

Today we realized that we need to have some sort of name or designation for the three conference rooms (small, medium, and GINORMOUS). Something classy, you know.

So I emailed around my suggestions to the attorneys and staff.

The CRUSH YOUR ENEMIES room, the SEE THEM DRIVEN BEFORE YOU room, and the HEAR THE LAMENTATIONS OF THEIR WOMEN room.

I think this is perfect. Imagine showing up to have your deposition taken, and the receptionist says "Ah yes, Mr. Plaintiff, you're in the CRUSH YOUR ENEMIES room. They're expecting you."

So far all I've gotten is awkward silence.

I get that a lot.

(Hogan & Hartson, FYI, is a BigLawFirm).

Via.

Moron-who-should-know-better-of-the-day: Gerald Hamelburg, who in addition to being an idiot sounds like an entitled jackass. Hamelburg got cited for using his dead mother's handicapped placard to take advantage of more convenient parking in Boston.

According to an investigator's report, Hamelburg seemed unclear about what he had done wrong.

"He denied that he was 'displaying' the placard," wrote the investigator, who videotaped this week's exchange, "and stated that it was merely 'hanging there.' He questioned why he was being sanctioned for the use this time, saying that he had used it 'half a dozen times' before that and 'no one' had ever had an issue with his use of the placard before. [The trooper] asked him why he believed that was an appropriate defense to his having committed a serious violation by using the placard illegally. Hamelburg had no response to his question."

This is why you shut the hell up when the cops approach you: because one a natural human tendency under the stress of accusation is to cycle through various excuses, not really thinking any of them through, until you hit on one you like. Meanwhile you've just eviscerated any potential defense. Gerald probably knows that "but no one ever complained before" is not a legal defense. But even as a lawyer, when confronted with a cop, he can't think straight.

As I've said before, JUST. SHUT. UP.

And Gerald Hamelburg, if you're going to use your dead mother's handicapped placard to make it easier to park your luxury car, at least have the common decency to have someone break your knees first. You're in Boston. They've got outcall that does that.

Months ago I blogged about [former] New York Judge Robert Restaino, who was removed from the bench after he flipped out when a cell phone rang in his courtroom and he couldn't identify the culprit. When no one would confess, he revoked or increased the bail of all the defendants before him, one by one.

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