Flippin the Bird

It seems even judges on the Second Circuit Court of Appeals need to have a little fun.  Remember they are one step below the Supreme Court.

Quick synopsis of a recent case:

1) John and Judy Swartz were driving in St. Johnsville, NY,
2) Officer Insogna was using radar to detect speeders,
3) John extended his middle finger to express his displeasure at the officer's methods,
4) Officer Insogna started a traffic stop,
5) John did not want to give Officer Insogna any paperwork, but Judy provided her license,
6) Officer Insogna returned the documents to Judy and told John and Judy they could leave as he had no reason to ticket them,
7) John asked to speak to Officer Insogna "man to man",
8) Another officer heard John say something under his breath and then arrested John, giving him an appearance ticket for disorderly conduct.

John filed a suit alleging the officers violated his civil rights by arresting him for exercising his First Amendment right to free speech.  The District Court dismissed the suit and the Second Circuit reinstated it in this opinion.  The best part about the opinion is the centuries-long history of the middle finger provided:

     See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir.  

     1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, 

     Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See 

     Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first 

     recorded use of the gesture in the United States occurred in 1886 when a joint baseball team 

     photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the 

     finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 

     U.C. Davis L. Rev. 1403, 1415 (2008).

The officer said he stopped John's car for three reasons:  1) The gesture “appeared to me he was trying to get my attention for some reason," 2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and 3) “I was concerned for the female driver, if there was a domestic dispute.”

The Court shot this down, stating that the universal and ancient recognition of the middle finger as an insult denies any other interpretation by the officer.  Since the officer did not have any reason to approach the vehicle, the stop was unlawful and they allowed the civil rights suit to proceed.

And who says lawyers are no fun?

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The Decision

Remember that?  Well, this post is not about that farce. An actually important decision is made in American courtrooms every day.  One that is of far more importance than Lebron's television special.

It's the decision to be tried by a jury or a judge.  Did you even know a person had a choice?

In New York State, every defendant has a right to be tried by a jury when charged with a misdemeanor or felony.  There are two exceptions:  1) defendants charged with class "B" misdemeanors in New York City, and 2) defendants eligible for youthful offender adjudication and charged with any misdemeanor.  In both those cases, the trial must be a bench, or non-jury, trial.  Criminal Procedure Law 340.40.

The reason for the first exception is mainly to expedite cases through a crowded court system.  It allows prosecutors to reduce charges from class "A" misdemeanors to class "B" misdemeanors and try the case in front of a judge.  A case that would take three days to a week to try can now be tried in an afternoon.  The discretion for this lies solely with the prosecutor though.

A defendant can waive their right to a jury trial in any felony or misdemeanor case that is not murder in the first degree.  It must be done in writing, on the record in open court, and the defendant must answer a litany of question from the judge relating to his understanding of the waiver.  If it is waived, the judge will decide the defendant's guilt.

Why would anyone want to waive the right to a jury trial that our revolutionary forefathers fought so hard for?  Some reasons:

1) The judge has already indicated his/her negative thoughts about the merits of the case,
2) The case is based on legal distinctions that a jury might not understand or care about,
3) The facts of the case might prejudice the jury (e.g. defendant is on parole, has a criminal history, drug/alcohol abuse, clear gang affiliation), or
4) The judge might be more inclined to convict of a lesser charge

In New York, if the defendant wishes to waive his right to a jury trial, the prosecution's position does not matter.  In federal court, both the prosecution and defendant must consent to waive a jury trial.

Waiving a jury trial is only appropriate in a limited number of cases.  There are plenty of negative consequences.  Only one person is making the decision, not twelve citizens with no legal training and no familiarity with each other.  Arguments on appeal are significantly reduced.  Generally, both the defense attorney and the prosecutor agree to admit certain evidence and stipulate to some testimony leaving less room for cross-examination.

A person facing the prospect of criminal prosecution has many decision to make before arriving at the ultimate question - bench or jury.  Once there, a candid conversation with their attorney is warranted concerning the merits of a jury and bench trial.

The reason this topic came to me is that I prepped for a jury trial for the last two weeks.  It was slated to begin this week, but the defense attorney waived a jury trial the day before it was set to begin.  I always feel relieved and disappointed when this happens.  The relief is because I do not have to put on a show and have my every move scrutinized by twelve strangers for a week.  The disappointment is because I really love when I get to put on a show and get scrutinized by strangers.  

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Interesting Sex Crime Statistics

From The Enliven Project, comparing the number of falsely accused rapists and the number of convicted rapists.  The data comes from the National Crime Victimization Survey and FBI reports.

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Legal Jobs - The Big Firm

A friend agreed to answer some questions about the life of an associate at a large, nationally rated law firm and the interview process to get there.  He asked to remain anonymous.  Much like my job, the bosses have the ability to say what they want.  Those trying to get there, need to be more careful.  Here are some of my questions and his responses:

1) Describe the typical interview process

Coming out of law school, it is typically a multi-round, multiple-day process. It generally begins with an on-campus interview with attorneys who graduate from your law school. This round of interviews is done to whittle down the list of potential candidates. If you are selected for a follow-up interview, you are invited to the firm's offices for a series of interviews with various attorneys from across the firm. In my experience, this part of the process usually is completed in one day, but can sometimes take longer, depending upon scheduling and the position involved.

2) What kind of credentials are major firms looking for? 

The academic credentials sought include graduation from a respected law school, solid grades, law review, and participation in other extracurriculars, such as moot court or mock trial. 

The intangibles that are sought include a keen intellect, varied outside interests, an engaging personality, and a strong work ethic.

3) Can you negotiate salary?

Typically not right out of law school. Most big firms have a set starting salary that they are reluctant to modify. After completing your first year (and each year after that), however, there is an opportunity to receive raises that vary based on your performance. There are generally more opportunities to negotiate your compensation the longer you have been practicing. 

4) What kind of hours are expected? (Billable and office hours)

In virtually every large firm of which I am aware, there is a minimum billable hour requirement (which tends to range from 1700 to 1900 annually). Some firms also have non-billable requirements or goals for certain activities, such as marketing and pro bono representations. 

Office hour requirements vary by firm, and even by department. My personal experience is that there is a lot of flexibility in this regard. If you are up before the sun, you can arrive at work at 6:30 am and leave on the earlier side in the evening. If you are more of a night owl, you can come in mid-morning and leave later in the evening. But this flexibility is not unlimited.  Partners expect associates to be available during the core of the business day, Monday through Friday. Also, do not expect a 9 to 5, no weekend schedule. Such hours are ordinary course for new associates in large firms.

(Editor's Note - 1900 billable hours a year equates to 38 billable hours per week, assuming two weeks vacation a year.  That means in every work week, an associate must bill at least 38 hours to a client for work they have done).

5) Can you branch out from your department and try other types of law?

To some extent. Newer attorneys are generally encouraged to develop their own niche. To the extent this overlaps with work performed by other groups or implicates other areas of law, newer attorneys are free, and usually encouraged, to pursue it.  By contrast, it is rare to start in one area of law within a firm (e.g., tax) and end up in a different area (e.g., litigation) within the same firm. Once you are an associate attorney in one department, it is difficult to shift to an unrelated group. 

6) How does a summer internship compare with associate life?

No comparison. The summer associate program is designed to be fun for the summer associate as well as the attorneys at the firm who are involved with it. You can expect to perform some work (the level of work will vary depending on the firm), but every summer associate can expect to attend numerous meals, events, and cultural activities during their summer associate experience. 

The real work begins once you have completed the bar exam and start at the firm as a first-year associate. Expect this to be much different than the summer associate experience.

7) What is a typical day like?

There is no typical day. Everyday is different in important respects. And no day ever goes according to plan. It only takes one phone call or email to entirely change the complexion of a day. The one constant, however, is the work -- lots of it.

This can be both stressful and rewarding at the same time, but it is always varied. 

8) Advantages of firm life? Disadvantages?

Advantages include the compensation, intellectually challenging work, and ability to work with well known clients. Another advantage is the depth of resources available to you by virtue of working at a large firm. Have a question regarding an obscure tax or employee benefits regulation? Chances are you have a colleague who is an expert and can answer your question in a few minutes. 

Disadvantages include the hours of work necessary to succeed. Make no mistake, most of the attorneys who excel at large firms are workaholics who make tremendous personal sacrifices to achieve the success they have. Having personally witnessed many instances of this, I can say that it can be, at various times, exceptionally motivating and poignantly tragic. To witness the sacrifices some make, and the impact these sacrifices have on families, friends, and loved ones, has left an indelible mark on me. 

9) Should there be a focus on certain types of classes in law school?

While I am no expert on law school pedagogy, I would have benefited from more intensive legal writing courses as well as more classes that focused on the practical aspects of practicing law. Theory has an important place in the law school curriculum, and I enjoyed this aspect of law school the most, but at the end of the day, a law school must graduate practice-ready lawyers who will be prepared to help their clients address real-world legal problems.

10) Mock Trial or Moot Court? And why?

I would do both, if at all possible. I participated in multiple moot courts while in law school (none, unfortunately, with the author of this blog), but did not participate in mock trial. The skills I honed in moot court were practical and skills I applied once I began practicing. But when it came time to undertake my first administrative trial, I felt unprepared. Presenting a factual case to a trier of fact turned out to be much different than debating fine points of law before a panel of lawyers acting as appellate judges. So, if I could change something about my law school experience, I would have attempted to make time to participate in mock trial. The practical skills that it builds would have been useful for me to have starting out as a new associate.


Thank you for taking the time to answer some questions, my friend. 

Please feel free to comment or email with any other questions and look forward to additional posts on more careers.

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Job Options for Law Students

We'll begin this series next week due an increasingly busy week.  Have a good weekend.  For now, here's two posts on the topic of District Attorney's to satiate you.

How to Become an Assistant District Attorney
How to Create an Assistant District Attorney

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Is Law School Worth It?

Lawrence Mitchell, Dean of Case Western Reserve University's law school says it is.  Check it out here.

While reading this and checking some old posts, I discovered I've posted a lot about whether or not to go to law school.  So, instead of rehashing old statements into a new post, I'll just link to them so you can see my opinion.

To Be a Lawyer
To Go or not to Go
Be a Student of Loans
Should I Go to Law School

This was prompted by a flurry of recent emails from law students and recent grads struggling to find work.  I've been thinking about adding a law student/recent grad component to the site for awhile.  Any of you readers/followers please comment or email about what you would like to see.  In the next few posts, I will discuss the types of jobs law students can seek and the advantages or disadvantages of each.  Also, most importantly, how to get the job.

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