A snippet from upcoming-I-hope near-future novel DONATION -- featuring my favorite fictional judge

I hope, and just about believe, that after much dithering and changing course, I'll finally be publishing my near-future novel Donation this coming spring. And here's a snippet.

Donation involves the issues that arise when the federal government controls artificial womb technology. In this scene, federal judge Alexandra (Alex) Rayner examines some papers filed in a lawsuit where a woman who "donated" her embryo (now a fetus) is trying to regain her parental rights, and the Bureau of Reproductive Safety is fighting her tooth and nail.

I adore Judge Rayner. As one character says, she's what I'd like to be when I grow up -- or would be if I weren't more comfortable these days writing books.

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Judge Alexandra Rayner sat back in her rocking chair, luxuriously comfortable in her long bathrobe, quilted slippers on her feet – she’d finally found slippers neither too short nor too wide! -- and contemplated the opening motions in what promised to be a most interesting case. Interesting, and in unfamiliar territory: federal judges like herself were rarely drawn into family law disputes. Only the fact that the clinics were established under the aegis of the federal government had brought this matter to her court.

There was, of course, the threshold question: should she recuse herself because of the abortion all those years ago? She thought not. She had made that choice in a very different world, a world with different options and different consequences. That history did not predispose her to take any particular view of the present controversy.

So. The plaintiff wanted the adoption process frozen. Problematic, at least if continued for long, given Alex’s inability to freeze fetal development to match.

The plaintiff also wanted an order giving her access to the incubator, so she could talk to the fetus. Meanwhile, the clinic, should Alex decline to dismiss the case immediately, wanted carte blanche for the chosen adoptive parents to do the same, pointing out that for them to do so was normally routine. (And just when had those parents been chosen? Not that it mattered for her purposes.) She would ask for affidavits from experts about the importance to and effect on the fetus of hearing voices that could eventually be familiar and familial. And what about other voices? Did the nurses, or technicians, or whatever they were called talk to the incubators? How much? Were human voices in general more important than particular voices? Did even the experts know? Well, whether or not they knew, they’d try to sound as if they did.

Hmmm . . . That would be a possible solution. Indeed, uniquely rational. If the affidavits supported the claim that human voices, or the voices of family members, played an important developmental role, then the parties — plaintiff and individual defendants — could supply the same. Separately, and taking turns.

She could wish to be a fly — a temporary and sentient fly — on the wall when these competing would-be parents had their visits. What would they want the fetus to hear? What would they be unable to keep themselves from saying? Such knowledge would be helpful indeed, if her job was to play Solomon and send the baby where it would be best nurtured and loved. But she had no such mandate, and thank God for that.

Though come to think of it, Solomon had been asked to determine, not the best mother, but the true one. Maybe not so far, after all, from her own more legalistic duty.

And this degree of woolgathering meant it was time she went to bed. But first, she would send herself a note as a reminder. If she did order access to the fetus, she had better make sure the clinic did not take advantage of the logistics to record or listen in.

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Back to final(??) revisions. Wish me luck!

The Problem With Pronouns

 I have been struggling for several years to become consistent at using "they/them" pronouns for someone I love, someone I've known almost half my life. During almost all that time, I and others referred to this person with "she/her" pronouns. I don't give a damn what, if any, gender this person is. The struggle arises from other factors.

I grew up speaking English. Like many of you -- including the person in question -- I have studied another language. So I have some appreciation of the profound differences between speaking one's native tongue and speaking a language in which one is not fluent. I believe these differences explain why changing my pronoun usage has been so difficult. Caveat: I'm not a scholar in linguistics or any related science. I'm describing an experience, one which I've done my best to study from the inside. (Second caveat: the English people under thirty-ish have learned may well be more flexible in structure.)

When I speak English, the basic building blocks require no conscious thought or effort. Verb forms, the ordering of parts of speech, and other such features of the particular language I speak -- all these fall into place at what I'll call a pre-conscious level. And from what I can tell, pronouns fall into that category. In the English I learned in the mid-1950s, the English in which I'm fluent, a single known human being takes the "he" set or the "she" set of pronouns. (Unknown humans are another story. I don't know whether, at some time before my era, using "he" for all unknown individuals was automatic, but it isn't for me.)

So, the building blocks are in place. Next comes adding the substance of what I want to say. This does require conscious choices. Even more deliberate is the next layer, one of nuance. Does the word that has come to mind have the right connotation? Is it sufficiently evocative? Will it fall pleasantly on the ear?

The final step, if I'm to use "they/them" for a single known person, amounts to slapping a filter on the top of this stack of words and meaning. It's the very last step before I open my mouth. Indeed, it often comes a fraction of a second later, and what I say comes out with hitches and interruptions, last-minute saves. 

Here's the ironic and most upsetting aspect of this process: the more I care about the content of what I'm saying, the more emotional significance it has for me and for the person I'm saying it to, the harder it is to remember to add that filter. So the more it matters, the more likely I am to sabotage the communication and hurt someone I love.

I understand, at least to some extent, why pronouns matter so much to this person and others like them. (Phew! Got it right that time.) Gender is a deeply personal matter, and being referred to with the wrong pronoun -- at least, for this person and many others -- feels like an attack. They don't see the errant "she" as just a part of speech. They view it as an insistence that what they know and feel doesn't matter. And even if it happens rarely, just knowing that it could happen means that every minute in the unreliable speaker's company is an ordeal of continuous stress.

I wish this person would make their own attempt to understand. And I have a more desperate wish, even less likely to be granted: that they, and others facing the same impasse, could revisit the symbolic heft they accord pronouns. Giving pronouns such power makes no-win situations, broken relationships, and broken hearts nearly inevitable.

A wonderful passage that applies to writing stories

 I just came upon a wonderful quotation in a wonderful book -- Once Upon a Wardrobe by Patti Callahan. It concerns George, an eight-year-old boy who is very ill, and who greatly cherishes C.S. Lewis's The Lion, The Witch and the Wardrobe. (It twinges a bit for me to resist putting in an Oxford comma.)

"George knows you can take the bad parts in a life, all the hard and dismal parts, and turn them into something of beauty. You can take what hurts and aches and perform magic with it so that it becomes something else, something that would never have been, except you make it so with your spells and stories and with your life."

This speaks to me as a writer, and may similarly speak to other writers, and to those wrestling with those hard and dismal parts of life.

Release Day!! for picture book WHEN IT'S WINTER

The wait is over! If you like winter, cute kids, cute dogs, and/or picture books with lovely illustrations, I hope you'll check out my newly released When It's Winter with illustrations by Barbara Dessi. I've been previewing pics and text alternately over the last few days (just scroll down), and I hope I've whetted your appetite.

Here's the cover, once again.

Here's the blurb.

"What makes winter special? This picture book celebrates the many fun activities and sensory experiences of the season. Follow a girl and her dog through the play and discoveries of a snowy day, and on toward bedtime.

"The first person narrative will encourage new readers to claim it as their own. The repetition of the phrase 'When it's winter . . .' will encourage children to chime in, and be of assistance to early readers."

And here's the Amazon link! (It may take you to the Kindle edition instead of the paperback I've told it to use, but you can get over to the paperback with one click.)

When last I checked, "Look Inside" wasn't yet functional for the Kindle ebook. If you encounter that problem, feel free to email me at kawyle@att.net, and I'll send you the first couple of illustrations. (You could also "look inside" the paperback, though it'll display single pages, i.e. half of the illustration at a time.) (Of course, you could just buy the book . . . . 🙂 )

Happy reading, all!

One more advance look before Release Day!

 Only one more day before the release of When It's Winter, the picture book on which I collaborated with the wonderful Barbara Dessi! Here's a final advance peek at Barbara's wonderful illustrations.

The book follows a day-long arc, and this image comes close to bedtime. I love everything about it.

a peek at another line from upcoming picture book

 In keeping with my pattern of alternating looks at art and text in my upcoming picture book When It's Winter, here's another line.

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When it's winter ... my dog helps me make a snowman.

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(The illustration for this line is one of my favorites, but you can see that soon enough, with the book's Amazon release scheduled for Tuesday, October 26th.)

Tomorrow, another picture!

next advance look at illustrations in upcoming When It's Winter picture book

 Here's another advance look at Barbara Dessi's lovely illustrations for When It's Winter! My only challenge is deciding which ones to share before the book comes out (Amazon's Kindle and paperback editions) next week.

And I've chosen . . . this one!

Tomorrow, I'll share another line from the book. And two days after that, if all goes as it should (fingers, toes, and eyes crossed), the book will be available on Amazon.

another advance look at the picture book When It's Winter

 I've decided to do something a little different this time as I lead up to, or count down to, the release of When It's Winter. (That'll be the release of the Kindle and paperback editions on Amazon, with wider release of the paperback, and a hardcover edition, to follow when logistics permit.) I'm alternating advance peeks at illustrations and at text.

Today's line:

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When it's winter ... I can make a cloud just by breathing.

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What did illustrator Barbara Dessi do with this line? And what part will the little dog play? You can find out in just a few days!

And since I hate to end this post without including any art, here's the cover again. 

Announcing the release date for picture book When It's Winter -- on Amazon, at least -- and pre-release plans

 After some dithering, I've decided to release my picture book When It's Winter, illustrated by Barbara Dessi, in five days, on October 26th. That is, I'll be releasing it on Amazon. I would love to release it on IngramSpark as well, in the hope of interesting some bookstores -- but it appears I won't actually receive the physical proof copies of either the paperback or the hardcover edition until mid-November or later. I am restraining myself, just barely, from releasing IngramSpark's version of either edition sight unseen.

Wish me luck! Patience has never been my strong suit.

In the meantime, I'll post a few advance peeks at illustrations in the days leading up to the release, in order of their appearance in the book. (I already did a cover reveal in a previous post.)

Oh, okay, here's the first one . . . .

What do you think the text is for this winter scene?

By the way, the dog shows up in almost every spread. 🙂

Picture book cover reveal!

 I don't have a firm release date, for various logistical reasons, but sometime this month (Fates willing), my picture book When It's Winter will make its appearance. And here's the front/Kindle cover!

As you can see, it's illustrated by Barbara Dessi, and I'm delighted with what she hath wrought. The book will be available in Kindle, paperback, and hardcover editions.

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!

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.)

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.

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.

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!

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!

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.

Another look inside my and Siski Kalla's upcoming picture book

 Here's another favorite moment of mine from You Can't Kiss A Bubble.

Can you guess the text that goes with it?

If you click "Want to Read" on Goodreads, you'll get an alert (besides my blog post :-) ) when the book comes out this Friday. 

Third glimpse of You Can't Kiss A Bubble

 Here's a reminder that Siski Kalla did the delightful illustrations.

And here's part of one of them.

No, I don't promise readers that they could actually do what the girl is doing.

More tomorrow!

Second peek inside my upcoming picture book

 Today, I'll answer the question I posed last time. When you try to kiss a bubble . . .

Of course, the book itself shows how the girl reacts.

Next, I'll post just a few favorite moments from the book (partial illustrations, with or without text).

The book comes out this week, on July 23rd! (Yesterday's blog post has preorder links.)