And here, like Walker Percy, he interviews himself.

Well, close.

Well, close.

No one has ever asked me the lawyer-related questions I would like to be asked.  At age fifty-three, time is passing.  So, inspired by novelist Walker Percy, who wrote an essay entitled Questions They Never Asked Me, I decided to do a self-interview.

If you’re unwilling or unable to click through the link, here is the gist of it:

 

You have a social-media presence. Can someone hire a lawyer off the Internet?

No. Hiring a lawyer is an impossible judgment to make from a blog or webpage. There are a lot of good lawyers. They may be able to help you, but you can’t tell because their websites and bios look and sound the same. (Ask yourself: “The last guy I looked at who talked about ‘innovation in client service,’ was the background of his webpage goldenrod, or was he the guy with the blue stripe and tiny print down the side?”)

First one lawyer, then another.

First one lawyer, then another.

So how does someone with a legal problem tell one lawyer from another?

All lawyers want to stand out from the crowd, but everybody uses the same buzzwords. “Dedicated, innovative and collaborative.”

A very 1980s approach.

A very 1980s approach.

It’s like we all picked up the same management-guru’s paperback one night changing planes at DFW.

That doesn’t answer the question.

Well, it does.

First, I’m not going to tell you how smart, creative, proactive, problem-solving, practical-minded, cost-effective, sophisticated, responsive, savvy, innovative, disruptive, global and social I think I am. Clients and colleagues get to draw conclusions like that.

Second, I’m going to admit at least some ignorance. A lawyer learns about a client by listening. Not by talking. If I don’t listen to you, I can’t claim an understanding of your business, your problem or your life.

If we skip adjectives and admit ignorance, what’s left?

A promise. I promise I’ll pay attention to you, your business and your life. If I’m not the smartest guy in the room (which is entirely possible), I promise that I will work harder―a lot harder―than anyone else in the room. I promise that I respect the courtroom but I don’t fear trial. I promise that I will tell you (a) the truth about your problem and (b) about whether I’m the right person to help. I promise to be ethical. I promise to be loyal, because too many lawyers and businesspeople aren’t.

That’s it?

That’s it.

 


Memorial Day Weekend Cocktails, Plus A Navy Seal’s Commencement Speech

FlagBest wishes for a happy Memorial Day weekend from White Collar Wire.

Mow what grass?

Mow what grass?

From the New York Times, this set of interactive videos about summer cocktails is a great start to the weekend.

The Thin Man movies starring Nick and Nora Charles (William Powell and Myrna Loy) combine two elements of our mission (cocktails and crime fiction).  This montage from several “Thin Man” films has some of their best martini-hits.

A suspect.

A suspect.

 

We support gin here at White Collar Wire.  See this article about the renewal of gin in London.  And, on the subject of gin, from Liquor.com is this video on the Corpse Reviver Number 2.

Tiki drinks are a hot-weather favorite.  From Saveur.com, here’s a story about Dragon 88’s mai tai.

Nothing causes good-natured arguments better than the correct preparation of the Sazerac.  From our friends at Gastronomista.com, an article that reminds you: Trust Me, You’re Drinking Your Sazerac Wrong.

Finally, I am no great fan of commencement addresses, but this one by Navy Admiral William H. McRaven, Commander of U.S. Special Operations Command, seems especially appropriate on Memorial Day weekend.

A Polynesian extravaganza.

A Polynesian extravaganza.


Lawyer Presentations Without PowerPoint: Charles Laughton and The Fiery Furnace

Charles Laughton

Charles Laughton

At trial in a white-collar or civil business case, lawyers sometimes complain that the material or documents they must work with are so old, so familiar or so different from everyday language and commerce that there is no way to keep the attention of judge and jury.

Not so.  Just watch as Charles Laughton reads The Fiery Furnace on the Ed Sullivan Show (1960).

And, delivered decades before a PowerPoint deck, laser pointer, “elmo” or any other such dreadful presentation tool was available.  (Indeed, delivered without notes, for that matter).

 

In case you need a transcript go-by, here it is (from Daniel 3:1-30).  Personally, for the most obscure musical instrument, I prefer the translation “sackbutt” to “trigon”, but I was not asked:

King Nebuchadnezzar made an image of gold, whose height was sixty cubitsand its breadth six cubits. He set it up on the plain of Dura, in the province of Babylon. Then King Nebuchadnezzar sent to gather the satraps, the prefects, and the governors, the counselors, the treasurers, the justices, the magistrates, and all the officials of the provinces to come to the dedication of the image that King Nebuchadnezzar had set up.  Then the satraps, the prefects, and the governors, the counselors, the treasurers, the justices, the magistrates, and all the officials of the provinces gathered for the dedication of the image that King Nebuchadnezzar had set up. And they stood before the image that Nebuchadnezzar had set up. And the herald proclaimed aloud, “You are commanded, O peoples, nations, and languages, that when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, you are to fall down and worship the golden image that King Nebuchadnezzar has set up. And whoever does not fall down and worship shall immediately be cast into a burning fiery furnace.” Therefore, as soon as all the peoples heard the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, all the peoples, nations, and languages fell down and worshiped the golden image that King Nebuchadnezzar had set up.

Therefore at that time certain Chaldeans came forward and maliciously accused the Jews. They declared to King Nebuchadnezzar, “O king, live forever!  You, O king, have made a decree, that every man who hears the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, shall fall down and worship the golden image.  And whoever does not fall down and worship shall be cast into a burning fiery furnace. There are certain Jews whom you have appointed over the affairs of the province of Babylon: Shadrach, Meshach, and Abednego. These men, O king, pay no attention to you; they do not serve your gods or worship the golden image that you have set up.”

Then Nebuchadnezzar in furious rage commanded that Shadrach, Meshach, and Abednego be brought. So they brought these men before the king. Nebuchadnezzar answered and said to them, “Is it true, O Shadrach, Meshach, and Abednego, that you do not serve my gods or worship the golden image that I have set up? Now if you are ready when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, to fall down and worship the image that I have made, well and good. But if you do not worship, you shall immediately be cast into a burning fiery furnace. And who is the god who will deliver you out of my hands?”

Shadrach, Meshach, and Abednego answered and said to the king, “O Nebuchadnezzar, we have no need to answer you in this matter. If this be so, our God whom we serve is able to deliver us from the burning fiery furnace, and he will deliver us out of your hand, O king.But if not, be it known to you, O king, that we will not serve your gods or worship the golden image that you have set up.”

Then Nebuchadnezzar was filled with fury, and the expression of his face was changed against Shadrach, Meshach, and Abednego. He ordered the furnace heated seven times more than it was usually heated. And he ordered some of the mighty men of his army to bind Shadrach, Meshach, and Abednego, and to cast them into the burning fiery furnace. Then these men were bound in their cloaks, their tunics,their hats, and their other garments, and they were thrown into the burning fiery furnace. Because the king’s order was urgent and the furnace overheated, the flame of the fire killed those men who took up Shadrach, Meshach, and Abednego. And these three men, Shadrach, Meshach, and Abednego, fell bound into the burning fiery furnace.

Then King Nebuchadnezzar was astonished and rose up in haste. He declared to his counselors, “Did we not cast three men bound into the fire?” They answered and said to the king, “True, O king.” He answered and said, “But I see four men unbound, walking in the midst of the fire, and they are not hurt; and the appearance of the fourth is like a son of the gods.”

Then Nebuchadnezzar came near to the door of the burning fiery furnace; he declared, “Shadrach, Meshach, and Abednego, servants of the Most High God, come out, and come here!” Then Shadrach, Meshach, and Abednego came out from the fire.  And the satraps, the prefects, the governors, and the king’s counselors gathered together and saw that the fire had not had any power over the bodies of those men. The hair of their heads was not singed, their cloaks were not harmed, and no smell of fire had come upon them.  Nebuchadnezzar answered and said, “Blessed be the God of Shadrach, Meshach, and Abednego, who has sent his angel and delivered his servants, who trusted in him, and set aside the king’s command, and yielded up their bodies rather than serve and worship any god except their own God.  Therefore I make a decree: Any people, nation, or language that speaks anything against the God of Shadrach, Meshach, and Abednego shall be torn limb from limb, and their houses laid in ruins, for there is no other god who is able to rescue in this way.” Then the king promoted Shadrach, Meshach, and Abednego in the province of Babylon.

 


Subpoenas, Search Warrants and the Dead

Process server.

Process server.

The Grateful Dead were succinct about it:   “Got a tip they’re gonna kick the door in again/I’d like to get some sleep before I travel/But if you got a warrant, I guess you’re gonna come in” (from “Truckin”) (1970).

Here is a piece about subpoenas and search warrants for risk managers.  Short and free. Videos included.  Also free.  No Jerry Garcia, though:

On May 2, Jack Sharman spoke at the Spring Meeting of the Alabama Society for Healthcare Risk Management. As a member of the Firm’s White-Collar Criminal Defense and Corporate Investigations practice, Jack has represented physicians, physician-practices, nurses and other healthcare providers in criminal, civil and administrative investigations. Jack spoke on the background landscape of healthcare fraud today and, in particular, on how to prepare for and handle subpoenas and search warrants.

Here is a brief (140 seconds) Lightfoot 140 talk on search warrants and a longer CLE version.

 

And, if you have not heard it in a while, here’s the song.

 


“Isn’t pretty much everyone you represent a criminal? Why use tax money for that?” | An Interview With Federal Public Defender Kevin Butler

Kevin Butler

Kevin Butler

We took a few minutes and sat down with Kevin Butler, the Federal Public Defender in the Northern District of Alabama.   Before he was appointed in 2012, the district was one of only four federal judicial districts, out of 94 nationwide, that lacked some form of public defender office to represent indigent criminal defendants.

If you are in the corporate world, I can hear you right now.  You’re reminding yourself that you are an honest businessperson.  If you are a lawyer — internal or external — you are reminding yourself that you do not represent defendants in the guns, drugs or child-porn sectors of the economy.  Better to go read the Wall Street Journal.  Or, at least, ESPN the Magazine.

Bear with us.  There is more of you here than makes you entirely comfortable.

A graduate of Cornell University, Butler received his law degree from Arizona State University.  Before coming to Birmingham, he was in the Federal Public Defender’s office in the Middle District, based in Montgomery.  During his last eight years in Montgomery, her served as the Chief Assistant Federal Public Defender.

Butler also served as an Assistant Federal Public Defender in the Eastern District of California and in the District of Nevada.

Here is an excerpt from the interview:

 1) What do FPDs do?

I believe the role of the Office of the Federal Public Defender has three key components.  First, to provide outstanding and zealous representation to indigent persons charged with federal criminal offenses.  Second, to maintain the highest level of skill and competence for all lawyers who represent the indigent through regular and consistent training.  Third, to provide public service in the form of education and outreach regarding the impact federal criminal proceedings have on the community.

2) What drew you to it?

My parents instilled in me a fundamental appreciation of an individual’s right to liberty and their right to equal protection under the law.  I have dedicated my career to helping ensure my clients afforded due process and equal protection of the law.

3)  Isn’t pretty much everyone you represent a criminal?  Why use tax money for that?

A key tenet of our legal system is fact that everyone accused of a crime by the government is presumed innocent.  Furthermore, this presumption cannot be overcome unless the government (the prosecution) proves beyond a reasonable doubt that an individual has committed an offense.  Societal and subjective beliefs regarding an individual’s guilt should never curtail or “short circuit” these tenets and they do not impact my desire to zealously represent an individual accused of a criminal offense.

4) What is your relationship like with the prosecutors?

Our criminal justice system is adversarial.   Though adversarial in Court, in this District the prosecution and the defense bar enjoy a civil and collegial relationship.  I believe all parties recognize that we have an ethical duty to zealously represent our side in criminal proceedings.
Therefore, as a rule neither party confuses zealous advocacy of their party’s interests with personal animosity.

5) Corporations can become defendants in criminal cases.  Why should American businesses pay attention to and appreciate what the FPD does?

Whether a corporation or individual has been charged with a criminal offense, more often than not, the law, the procedure, and the policy governing the criminal proceedings are the same. Therefore, an effective strategy employed by my office on behalf of an individual often translates into effective strategies for the representation of a corporation.

 * * *

What binds the Federal Public Defender client and the corporate client?

The 1970s were good to me.

The 1970s were good to me.

As the Steve Miller band pointed out in 1976, they both take the money and run.

Like a drug-dealer or the child-pornographer, the erstwhile-honest businessperson can be brought to earth like the birds in “The Decoys” by W.H. Auden (1907-1973):

Under the spell completely
They circle can serenely,
And in the tricky light
The masked hill has a purer greenness.
Their light looks fleeter.

Alas, the signal given,
Fingers on trigger tighten.
The real unlucky dove
Must smarting fall away from brightness
Its love from living.

 

Take note of two of Mr. Butler’s points: the white-collar mindset regarding “innocence” and the applicability of FPD strategies to the defense of corporations and businesspeople.

First, as we have noted elsewhere, the power of the grand jury is underestimated, and the presumption of innocence is more theory than reality.  Most people, most of the time, believe that most defendants charged with a crime probably committed the crime, yet business defendants think that, somehow, they will be believed if they can just tell their story.  This mind-set of white-collar intent causes all sorts of misdirection and wrong steps,  as in the  Zachary Warren indictment, is one of the distressing aspects of the Supreme Court’s Salinas decision.

It ought to be a crime.

It ought to be a crime.

Second, in an age when Congress often addresses social ills, real or perceived, by criminalizing heretofore lawful conduct; when some federal judges publicly complain to prosecutors about an insufficient number of heads-on-pikes over financial failures; and when agents and investigators of business-crimes use techniques and technologies formerly reserved for street offenses and organized crime, it would be surprising if FPD defensive strategy and tactics did not transfer readily to the corporate arena.

Federal Public Defenders provide a necessary service to the country.  Plus, as practitioners, we can learn a great deal from them.