Friday, July 30, 2021

Closest to the Fire: A Guide to American Law and Lawyers is now available!

 One last fanfare from the weary trumpeter who heralds my new releases, with this third release in just over three weeks . . . .

After belatedly admitting to myself that my 2015 nonfiction book, Closest to the Fire: A Writer's Guide to Law and Lawyers, had an unduly limiting and therefore misleading subtitle, and after keeping track for six years of all the updates the book could use (and posting them on the book's website), there is finally an updated and somewhat retitled edition. Closest to the Fire: A Guide to American Law and Lawyers still has plenty of tips and story ideas for authors and aspiring authors, to help them get their legal facts straight and explore the less drearily common legal plots and settings -- but I hope the revised title will now offer a clue of the book's value to law students, other students, visitors to this country, and any Americans who want to better understand the legal landscape in which they live.

As the only slightly overblown back cover copy says: ""The legal landscape can be a minefield. Here's a map."

The book is meant to be consulted in any order the reader chooses, with the Table of Contents and Index as a guide -- but I've been told by readers of the 2015 edition that it makes surprisingly entertaining reading, even starting from the beginning and plowing on through.

Here are the links to the book on Amazon -- including Kindle Unlimited -- and Barnes & Noble. Happy reading!

Thursday, July 29, 2021

last pre-release excerpts from Closest to the Fire: A Guide to American Law and Lawyers

 I wasn't sure what excerpt or excerpts to include in this final pre-release post. In the end, I decided on two excerpts, the first having to do with what juries can get away with.

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G. Jury Nullification and Other Shenanigans

One open secret about juries is that in criminal trials, jurors don’t have to do as they’re told. This is a big part of why we have juries at all. They’re a failsafe against laws that may be unduly harsh or out of step with current societal values. If the law is unjust, the jury may simply refuse to apply the law. Such a refusal is called “jury nullification.” This power can be extrapolated from several U.S. constitutional provisions. In addition, four states, Georgia, Indiana, Maryland, and Oregon, have state constitutional provisions or statutes saying the jury is the judge of, or has the right to determine, both “the law” and “the facts” of the case. (In Indiana, it’s Article I, §19 of the state constitution.) Twenty more states have more limited provisions that apply to civil suits for libel, presumably due to the importance those states accord to freedom of speech.

Judges, understandably, would just as soon that jurors didn’t know they have this option. The defense generally won’t be allowed to argue that the jury should ignore the law. The most the defense may be able to do is get a jury instruction (see 27.B.) citing the “judge of the law and the facts” language if it exists in that state — and then largely contradicting it by saying that the jury should follow the law as the judge has explained it to them. **A clever defense attorney might be able to hint, just enough, at the possibility of jury nullification that even if the trial judge intervenes and tells them to ignore what the attorney said, the jury will have picked up the clue.**

(There's also something called "jury vilification" -- but it's something a judge does. If a judge unjustifiably ignores a jury's verdict, e.g. by directing an acquittal after the jury has convicted when the evidence could justify conviction, that's jury vilification. See 5.C. re judicial misbehavior.)


If a jury does break the rules, it’s not so easy to do anything about it, especially if the verdict’s already in.

During a trial, including while the jury is deliberating, there are various things a judge can do if informed that a juror has misbehaved. If, for example, some other member of the jury reports that a juror has hidden a powerful motive to rule for one party or the other, or has done significant research into some factual or legal issue, the judge may dismiss that juror and interrogate the other jurors to see whether their own ability to deliberate impartially has been affected. The judge could admonish (lecture) the other jurors, reminding them of their duty, or could even surrender and declare a mistrial (see 9.D.). It’s anybody’s guess what most judges would do if confronted, mid-trial, by the knife-shopping expedition out of which Henry Fonda’s character made such hay in Twelve Angry Men. Different judges will allow different amounts of latitude to juries who perform experiments with items already in, or similar to items in, evidence. **But one could base a story on such events, aiming for anything from farce (“but Henry Fonda did it!”) to tragic irony (e.g. an acquittal prevented by a mistrial, followed by conviction of the innocent defendant in a second trial).**

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For my last pre-release excerpt, I'm serving up a rather timely discussion about the First Amendment to the U.S. Constitution, and what it actually protects.

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1. The First Amendment

The First Amendment plus the Fourteenth (see the intro to this chapter) prevent the federal, state, and local governments and their agents from:
>> “establish[ing]” any religion;
>> “prohibiting the free exercise” of any religion; 
>> “abridging” the “freedom of speech,” the “freedom of the press,” “the right of the people peaceably to assemble,” and the right of the people “to petition the government for a redress of grievances.”
None of these restrictions on government power are straightforwardly defined, and the definitions keep changing. What government actions constitute an “establishment of religion” is a particularly tangled thicket, with frequent litigation about whether a town hall may open with a prayer (currently, yes, if the prayers are theoretically open to all religions) and whether religious symbols such as Nativity scenes may be erected with public funds or on government property (currently, no, unless there actually are a variety of comparable secular displays in the same location as well).

[. . .] 

Freedom of speech covers only government restrictions on speech. If, for example, a magazine refuses to publish certain points of view, that’s not “censorship” in the sense of a violation of the First Amendment: the magazine, as a private entity, has every right to decide what speech it will tolerate.

The definition of “free speech” has been stretched over the years to include a good deal of nonverbal-but-expressive conduct, such as nude dancing (if the context is arguably artistic). It can also include loudly airing one’s displeasure at what a police officer is doing, though at some point such conduct could shade over into “disorderly conduct,” “disturbing the peace,” or interfering with the officer’s performance of their duties” (see 13.O.). When someone yells obscenities or insults at a police officer, states may differ as to whether police officers should be treated as having a higher threshold of endurance than the general public. More generally, there is often a two-stage analysis:
1. Did the state (or municipality) restrict expressive activity?
2. Did the defendant “abuse” their free speech rights to the point that they’re no longer protected?
The court may combine several balancing tests, looking at how much the state interfered with the speech, and at how much of a nuisance or injury the defendant’s conduct imposed on bystanders, nearby property owners, etc. If the speech had political content, even if liberally larded with obscene emphasis, the state will have to show more in the way of damage done.

Free speech definitely includes expressing unpopular and “offensive” opinions and trying to persuade people to come around to those opinions. That’s why rules that try to “protect” students at public universities from being offended or upset run afoul of First Amendment concerns.

What about “fighting words”? The idea that some insults provide so much provocation as to put them outside First Amendment protection came from the 1942 Chaplinsky case, in which the U.S. Supreme Court held that calling a city official a “damn racketeer” and a “damn Fascist” fell into an unprotected “fighting words” category. [. . .]To the extent the “fighting words” doctrine survives, it now refers only to personal insults directed at specific people, and does not allow even those insults to be punished under statutes that could also be used to punish a broader variety of offensive statements.

State and lower federal courts have often disagreed as to just what insults may still be treated as crimes. As already mentioned, there may be a tendency to treat insults directed at police officers as constitutionally protected comments on governmental activity, where the same insults aimed at a private citizen would have no such protection.

Some state college administrators, whose colleges come within the rules for governmental institutions, fall back on the fact that the Supreme Court never explicitly overruled Chaplinsky as allowing them to prohibit “offensive” speech. This argument has not fared well in the courts.

Another much-misunderstood notion is “clear and present danger,” for which the best-known example is shouting “Fire!” in a crowded theater. This example was used in a 1919 U.S. Supreme Court case that actually involved a very different sort of speech, namely encouraging young men to resist the draft during World War I. (This period was not exactly a high water mark for U.S. civil liberties.) If speech posed a “clear and present danger” of leading to consequences the government could legitimately seek to prevent, it could be prohibited and punished.

The Supreme Court overturned this ruling around fifty years later. Abandoning the “clear and present danger” standard, the Court held that speech could not be made illegal unless it incited “imminent lawless action.” “All of you go out right now and burn down the theater!” would presumably qualify.

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That's all! I hope these excerpts have been interesting and/or informative -- and that they've whetted your appetite for more. If you want to know about the many, many subjects from which I haven't taken excerpts, then tomorrow you can use "Look Inside" to see the Table of Contents on Amazon -- or, of course, get the book there, or at Barnes & Noble, or anywhere else you find it. (There may be a delay in the Kindle edition, for reasons too dull to relate. And whether there will be a non-Kindle ebook edition is currently uncertain.)

Wednesday, July 28, 2021

A short and a longer excerpt from this coming Friday's nonfiction book release

 Two excerpts for the (nonexistent) price of one today -- a short introduction to the section on the pace of legal proceedings, and a longer (all right, long) look at RICO (the federal Racketeer Influenced and Corrupt Organizations Act, which now extends far beyond its apparent context).

Here's the first:

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A. Intro: "Abandon All Hope "

Lawsuits are hell. Or would be, if Hell were expensive.

Like Hell, they last forever.

Like Hell, they often end up making you regret whatever you did to get there.

I’ve sometimes thought that every courthouse door should bear the same inscription that greeted those entering Hell in Dante’s Inferno: “Abandon all hope, ye who enter here.”

That’s obviously an unfair and jaundiced view. As I said earlier, the judicial system, with all its faults, is a better way to resolve disputes than, say, mortal combat. Sometimes, justice is done, and done without overwhelming unintended consequences for the parties.

But if an author is going to write about litigation, they should keep in mind the enormous financial, logistical, and emotional burdens involved. And anyone with a choice about whether or not to embark on litigation should think very carefully about that choice.

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And the second:

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C. You Too May be Treated Like a Gangster: RICO


It all started with some very frustrated law enforcement folks. They were having a devil of a time getting juries to convict gangsters. Oh, they finally got Al Capone on taxes, but wasn’t there some easier way?

Enter the Racketeer Influenced and Corrupt Organizations Act (RICO), in 1970. RICO was designed to make it easier to convict participants in organized crime by focusing on how organized crime actually functioned, and to nail the kingpins rather than just the small fry actually doing the murder, shakedowns, pimping, drug dealing, etc. It did this by:

>> Focusing on “patterns of racketeering.” This was supposed to mean multiple violations of the sort of laws organized crime might violate in the regular course of business.

>> Including those who initiated the criminal activity, even if they weren’t out on the streets committing violent acts and so forth.

>> Providing for pretrial restraining orders seizing the assets that would otherwise pay for the finest criminal defense teams.

 At some point after RICO was passed, and certainly by the 1980s, the feds figured out that RICO could be a handy tool well outside its original context.


Various portions of RICO deal with investing proceeds from a pattern of racketeering in an “enterprise,” or using such proceeds to maintain an interest in the “enterprise,” or conducting the affairs of an “enterprise” through a pattern of racketeering. Most courts require the defendant to be someone or something other than the “enterprise,” though the minority view has been gaining adherents. Where there’s a requirement of two separate participants, that requirement may be satisfied even if there’s only a sole proprietorship involved, if there’s some formal separation between the individual and the business or if the business has employees. Where a corporation is the target, sometimes the corporation is the “enterprise” and its officers or employees are the participants. Where a civil suit is contemplated, this may raise the tactical problem of whether the lawsuit is financially worthwhile, since many courts won’t allow the use of a “respondeat superior” approach (see 14.Q.) to let the plaintiff sue the corporation for its agents’ misdeeds.

So what makes up a “pattern of racketeering activity”? A business (again, potentially including an individual in business as a sole proprietorship) may be accused of violating RICO if it uses the U.S. mail or telephone twice in 10 years for a “predicate act.” A “predicate act” is any of a list of underlying crimes that might not be so serious, if RICO wasn’t available to ratchet them up. Use the mail or the phone at least twice in 10 years for one of these acts, and that’s deemed a pattern of racketeering activity.

What are these predicate acts? There are many, and some are awfully easy to commit. Here are a few examples of some “predicate acts” that may not immediately make you think of gangsters and the like:

>> Selling (or maybe just distributing) a video of a live musical performance without permission.

>> Using income that came from collection of a gambling debt, if the gambling involved violated any federal, state, or local law, in interstate commerce (which includes a whole lot of types of economic activity).

>> Using income from “usury,” charging more interest than some law allows, to acquire any interest (such as corporate shares) in any entity involved in interstate or foreign commerce.

>> Selling goods or services with counterfeit trademarks.

>> Obstruction of justice, of an investigation, or of state or local law enforcement.

>> Making a false statement in a passport application.

>> Interstate transportation of a stolen car or other stolen property.

>> Criminal infringement of a copyright.

>> Violating restrictions on payments to a labor organization.

>> Harboring an illegal immigrant.

>> Conspiracy to participate in any of these (or the many other listed) acts.

Some of these federal crimes may, for a criminal conviction, require proof of some sort of intent — but under RICO, the only elements the prosecution must prove beyond a reasonable doubt, the usual standard for criminal prosecutions, are the “pattern” elements. The underlying crime, the predicate act, need only be proved by only a preponderance of the evidence! (Yes, I find this shocking.) 

Also, as already mentioned, under RICO the feds can seize or freeze all the assets of the business involved at the time of indictment, before any proof that the predicate act has been committed. Those assets may be the defendant’s only chance of hiring a sufficiently able and experienced attorney. The pressure to accept a plea bargain can thus be overwhelming.

The penalties for violating RICO include very long prison terms and forfeiture of assets unrelated to the criminal activity.

As mentioned above, RICO also has a civil side, allowing suits in both state and federal court. A successful plaintiff can collect treble (triple) damages (see 30.B.3.). One new twist recently in the news: some spouses of the wealthy, claiming that their spouses have hidden assets, are trying to pull their divorce actions into federal court and use civil RICO. This hasn’t succeeded so far, as far as I know, but stay tuned.

RICO has been used against many organizations unrelated to organized crime, including Catholic dioceses, Major League baseball, companies that hired illegal aliens, and anti-abortion activists who blocked entrances to abortion clinics.

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One more day of excerpts, and then the book! -- which, by the way, one can preorder on Amazon and on Barnes & Noble.


Tuesday, July 27, 2021

Second excerpt from upcoming nonfiction book -- about representing yourself in court

 Here's the next excerpt from my next (and last) July release, Closest to the Fire: A Guide to American Law and Lawyers. It concerns something that people sometimes have to do, but shouldn't usually do unless they have to.

(The pairs of double asterisks mark situations that could make good story material for authors of fiction.)

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K. Pro Se, or Courting Disaster

Representing oneself, rather than having a lawyer represent one, is called appearing or acting pro se. 

It’s a perfectly good idea for a lay person to represent themselves in court — if they should have gone to law school in the first place, have a great deal of time to prepare, and are inhumanly objective about the matter at hand. Otherwise, it’s probably a terrible mistake.

Representing yourself in court without adequate legal training is like waltzing through a minefield without a map. In the dark. The odds are enormous that you’ll go up in smoke. More prosaically: a non-lawyer acting pro se is likely to miss the chance to introduce crucial arguments and evidence, because they won’t know how and when to fulfill procedural requirements. (Note: federal courts cut pro se litigants a little more slack.)

Given these difficulties, and the possibility of tricking a non-lawyer into making some damaging argument or admission, you might think an attorney would rub their hands in glee when faced with a pro se litigant; but the numerous delays while the judge tries to cope with the pro se party’s ignorance can be so maddening that most lawyers dread such cases.

For judges, there’s no “up” side. The trial or other hearing is likely to drag on much longer, with a just result much harder to achieve. If the pro se party failed to provide motions or other required documents to the opposing attorney beforehand, it may be necessary to schedule an additional hearing, adding to the court’s already overburdened calendar. Moreover, the judge has a very tricky line to walk: how much assistance may they provide before becoming, essentially, an advocate for the unrepresented party? Examples of help that might or might not be excessive (because different jurisdictions and different appellate courts may disagree) include:

>> Relaxing rules of evidence, such as the necessity to lay a proper foundation before admitting documents.

>> Overlooking missed filing deadlines.

>> Excluding objectionable evidence even though the pro se party doesn’t know enough to object.

>> Summarizing some key aspect of the applicable law at the start of the hearing, and/or prompting the pro se party as to what is or isn’t relevant.

If the judge does decline to enforce some procedural requirement, they had better be even-handed about it, allowing the same latitude to the attorney on the other side.

[. . .]

In criminal cases, because going pro se is such a bad idea, and because defendants have a constitutional right to legal representation (see 2.M.), the judge is supposed to make sure that any defendants stating the intention to represent themselves know how badly it may backfire before allowing the fiasco to unfold. In the civil context, however, urging a pro se party to get a lawyer has occasionally been held improper.

Even lawyers, when they find themselves in the position of litigants, are well advised to hire another lawyer. It’s almost impossible to keep your emotions and partisan viewpoint from clouding your legal judgment in this situation. There’s an old, wise saying among lawyers: “He who represents himself has a fool for a client.” (The pronouns are obviously outdated.)

On the other hand, it’s rarely much fun for a lawyer to represent another lawyer. They won’t sit back and let their lawyer run things. They’re full of tactical suggestions and demands. **One could have some fun with how an experienced, older, crusty attorney deals with being in the position of client for a change, and how their lawyer tries to maintain control of the case.**

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Tomorrow, a pair of excerpts (the first very short): lawsuits as Hell, and a look at the wide net cast by RICO.

Monday, July 26, 2021

More excerpts! -- this time from my upcoming nonfiction release about American law and legal practice

 My Month of Many (well, three) Releases is nearing its end: my updated and slightly retitled nonfiction book, Closest to the Fire: A Guide to American Law and Lawyers, comes out on July 30, 2021. (What's retitled is the subtitle, which originally read A Writer's Guide to Law and Lawyers. The 2015 edition grew out of a series of blog posts about how to write about the law and get it right. It took me quite a while before I not only realized that the book could be of interest to a larger audience, but accepted that the subtitle was failing to alert that audience.)

This is a big brick of a book, in its paperback incarnation, and a long one as an ebook. A few excerpts amount to rather less than a drop in the bucket. But I'll try to pick a few that give some idea of the book's content and approach. Starting with . . .

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D. Defending the Guilty

As mentioned already, there’s one key fact you must understand about criminal defense work: most of a defense lawyer’s clients are guilty. If a law student somehow doesn’t learn as much before undertaking to represent criminal defendants, they will end up disillusioned in a hurry. And stories where an experienced defense attorney crumples in anguish and doubt because the defendant may be guilty are, in a word, ridiculous.

That isn’t to say that innocent people never get charged with crimes – unfortunately, they do. But that happens a good deal less often than the cops catching someone who’s guilty of at least some of the charges that end up being brought. As explained in 9.A., the plea bargaining dance frequently includes prosecutors tacking on a few dubious charges to intimidate the defendant and create some bargaining room. Why would anyone knowingly make a habit, and a business, of defending the guilty? There are several reasons, any of which could matter more or less to a particular lawyer: >> Even with all the plea bargaining, criminal defense work is likely to involve a fair number of trials. If trials are what get a lawyer’s blood pumping, they may choose criminal defense. >> There’s an unending supply of clients. Most of them don’t have “deep pockets,” but a sizable percentage will have some resources they can tap if the lawyer doesn’t charge too much. And in a county with overburdened public defenders (see 2.F. and 2.M.), the courts may regularly appoint private attorneys to represent criminal defendants, for a modest fee that’s still considerably better than nothing. >> There is, in fact, a place for idealism in criminal defense, but it’s about defending basic principles rather than defending lots of innocent individuals. If we value the idea that the government must prove a person guilty beyond a reasonable doubt (see 20.C.) before depriving that person of life, liberty, or property, someone needs to hold the state to that high standard in every single case. The accused must receive a zealous defense, not because they necessarily deserve it, but because we as a society — as well as the occasional completely innocent person charged with a crime — do deserve it. Such legal idealism can be severely tested when a defendant is generally believed guilty of a particularly horrific crime. Robert Redford's movie The Conspirator chronicles one such situation, although I can't attest to its historical accuracy. After President Lincoln's assassination, Mary Surratt, who owned the boardinghouse where the conspirators often met, was one of those arrested, in what may have been an attempt to lure her son John out of hiding. A young Northern Civil War veteran, Frederick Aiken, was appointed to defend Mary, and (according to the film) was much vilified for performing that duty, eventually losing his girlfriend as a result. (The movie, which I haven't seen, may also use the "lawyer appalled that client may be guilty" trope I criticized above, but at least it doesn't attribute such sentiments to an experienced criminal defense attorney.) A similar and more recent occurrence involved alleged terrorists detained at Guantanamo Bay in the years following the 9-11 attacks. Many attorneys from well-known law firms volunteered to represent the detainees pro bono (without charge). A senior Pentagon official publicly expressed his dismay and suggested that the law firms' corporate clients should boycott these firms. His comments generated an immediate and powerful backlash from prominent lawyers and legal professional associations, as well as some politicians — but whether any corporate CEOs followed this advice is unclear.

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That's a pretty serious topic, and the excerpt reflects the fact. So here's one very short piece that's lighter in tone.

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E. Pit Bulls and Puppies: Variations in Style

Many clients want an aggressive, take-no-prisoners attorney, particularly in litigation. There are some of those out there, but for quite a while, law school trial practice courses have discouraged that style as counterproductive. The client is usually better off with one of the many lawyers who speak softly and carry a sense of proportion and good people skills.

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More tomorrow!


Friday, July 23, 2021

My first picture book is out!

 Ta-da! You Can't Kiss A Bubble, with illustrations by Siski Kalla and text by your humble (occasional) blogger, is out today in Kindle, paperback, and hardcover editions. Here, one more time, is the cover. (As I may have mentioned, this is the Kindle and paperback cover. The author and illustrator info is in the big bubble on the hardcover, to avoid printing problems, but the interiors are identical.)


And here's where you can get it from Amazon or from Barnes & Noble.

And here are the links to follow me on Facebook or Twitter, or to sign up for my monthly author newsletter. The latter includes not only news about upcoming releases and forays into new genres, but occasional "extras" like character art, excerpts, and cover reveals.

Happy reading!


Thursday, July 22, 2021

last peek inside You Can't Kiss A Bubble -- coming out tomorrow!

 The wait is almost over -- You Can't Kiss A Bubble comes out tomorrow! 

Here's one more of my favorite artistic moments, by Siski Kalla.


What are the girl and the bubbles doing? . . .

If you expect to be absent-minded tomorrow, you can preorder the book today on Amazon or Barnes & Noble.