Lying Detectors: California polygraphs sex offenders for “dangerousness”

The intersection of science and the law is a confused place:  Lawyers used to lie detector machinebending facts and law to suit their clients often cannot tell real science from quackery and many scientists get their understanding of the law and court proceedings from TV detective shows.  A long-running example of the nonsense on the science-law border revolves around the “lie detector” or, by it’s pseudo-scientific name, the “polygraph,” from the Greek for much or many writings — even it’s name is nonsense.  Lie detector interpretation is entirely subjective, with high error rates — both false positives and negatives.

The polygraph’s efficacy is a myth — it’s “gizmo theater” — not real science.  The show of the various inputs for pulse, electrical resistance on the skin (for sweating), respiration rate — with the little scratchy pens tracing in parallel on a roll of graph paper — is supposed to impress you that it’s “scientific.”  The script followed by the person administering the test is part of the game, to make the subject nervous and believe in the magic powers of the machine.  About the only time the polygraph “works” is when the subject spontaneously (but under duress) admits guilt or something probative of guilt.  In that situation, the machine is just a prop, along with the patter of the operating con artist.

I know quite a bit about lie detectors and the fools who use them because I used to be a trial attorney at the US Department of Justice, which lets federal agencies use them, mostly as part of security clearance procedures, where it’s all about the theater — no one goes to jail, but they do cost people their jobs.  I also worked on a well known case brought by a quasi-religious sect which uses a crude version of a lie detector  to gather information about its members.  And I brought perhaps the only, and apparently the first at least, civil case for lie detector malpractice.  When the lie detector company engaged by my client failed to catch a manager who was actively stealing from the cash register, my client sued.  The lie detector operator’s defense (raised by his insurance company) was that lie detectors are fake — so any client relying on them should have known they cannot be relied upon. Continue reading

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Search and Destroy: How lawyers aspire to unmask and sue negative online comments

cloudIn the good old days of the internet, everyone thought they were free to say what was on their mind, and share it with the world.  As many people pursued pornography, recipes, Star Trek trivia, and so on, there were a few interested in righting the wrongs of the world that “little people” without money for advertising and PR could not do in the age of TV, radio, and print media.  The age of nearly universal expression on the internet was born, including the avalanches of vicious, threatening comments that drive some people to suicide, for example.

About fifteen minutes after the first negative comment was posted, the subjects of these exercises in free speech started looking for ways to squelch negative comments (while faking positive comments, tracking everyone’s use of the internet surreptitiously, and so on, too).  So, about thirty minutes into the exercise of free expression, the age of the threat of litigation against negative comments on the internet was born. Continue reading

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The Retention Dance: Law firm claims duty to forward potential client’s inquiry to his employer

Nearly all law firms now have websites, which are primarily marketing tools to impress jump gunpotential clients.  I suppose some firms would say their websites are not looking for business, they are just “informational,” whatever that means, but that’s certainly how they are used by the public.  And that’s why most state bar organizations assume they should be regulating websites as legal advertising.

Most but not all of these websites provide email or equivalent links for potential clients to contact the firm.  (If no link, email address, or form is provided, the firm would usually provide a telephone number, which actually would have been a solution to the problem described below.)  In addition to providing contact information so the firm can get back to the potential client, or the potential client can call the firm, the usual “contact” form typically has a box through which an aspiring client can say whatever they want — so most potential clients are going to describe their problem and why they think your firm should be interested, so they will get the firm to respond. Continue reading

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Talking to Yourself: Lawyer discourages overcommunication with needy clients

angry callerLegal problems make many clients nervous — even if it’s something minor than can easily afford.  The whole legal process, including lawyers and courts and so on, just makes you worry. And the superior, condescending attitude of many lawyers, even toward their own clients, does not help.

But, despite the hostile environment, many clients need someone to talk to.  They need reassurance and hope, but, even if the predictions are bleak, they hope that talking to the lawyer will bring them some sort of comfort.  Without an understanding ear to explain the process, many clients cannot sleep or think of much else.  It is this discomfort (and legal fees) that causes many people to settle on bad terms, plead guilty to charges rather than defend themselves, sign a legal document without reading it, and so on. Continue reading

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Bailing Out: Malpractice defense lawyers recommend bailing on difficult clients

Many legal malpractice cases are based on snap judgments gone wrong, perhaps during a bailing-buckettrial or other court appearance.  A failure to object at a key time or making a mistake in an argument might qualify for this.  Others have to do with what the lawyer didn’t do — deadlines missed, work not done, and so on — things the lawyer didn’t know or forgot to check.  A typical example would be missing the statute of limitations to file a complaint or missing an appeal deadline.

But there are some malpractice issues that are right in front of the lawyer’s face, usually from early in the representation or for months.  This typically includes problems that start with a client unhappy about the lawyer’s bills, the lawyer’s failure to respond to client questions or calls, or an ongoing struggle by the client to get something done — which the lawyer either ignores or disagrees with.  Disagreeing with a client isn’t malpractice, but an upset client can be a client looking for other mistakes.  (And if you sue an upset client for legal fees, they are especially likely to counterclaim for malpractice.) Continue reading

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Trolls Have It: Patent plaintiff loses, but prevails on legal fee issue

While the law is supposed to be objective and the results of lawsuits foreordained by the troll doll 2facts and law, litigation is really an art (not a science) and a gamble entirely dependent on human unpredictability.  The outcome of litigation depends on the facts and law, but also sometimes the good or bad performance of lawyers, witnesses, judges, jurors, and others involved in preparing for and executing a trial.  Change any of these variables and the result may differ, even if the facts and law are the same.

A good lawyer helps his or her client run this obstacle course at least as well as the opponent’s will.  The value of a particular lawyer is often exaggerated in victory or wrongly excused in defeat — some litigants waste lots of money on inexperienced, overly expensive, even incompetent lawyers.  But what many litigants find is that if you don’t have enough money to afford at least a decent lawyer, you may not be able to litigate at all (or may start out fine, then collapse if the money, then the lawyer, run out).  You might have all the facts and law on your side, but if you don’t have a lawyer you can afford to pay, or a “free” lawyer committed to doing a good job, you could easily lose a matter you should win. Continue reading

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Getting Robed: Election of state judge gets expensive, dirty, and stupid

Ijudge costume 2n some state courts the judges are appointed, usually by executive nomination and often with legislative approval.  (All federal judges are appointed this way, and many for life.)  In other states, judges are elected, like governors, legislators, and other state posts.  In theory, electing judges is the democratic way to go — not that it’s going that well for the positions normally elected, let alone with judges.  Unfortunately, popular election of judges, who are typically invisible when they do their job well and only more visible if they crave the limelight, has been and will continue to be a disaster in far too many situations.

Even if the public understood what judges do, they have little information about judges — can you name even one local judge in your area?  In theory, judges are supposed to conduct low level campaigns, avoid taking tainted money, and just look smart, I suppose.  These days, however, in some states judges are spending double or more the annual salary for a judge to be elected as a judge. Continue reading

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Bill or Else: Managing partner threatens to fire late billers, the day before Thanksgiving

countdown clockLawyers who bill by the hour need to keep track of their hours, which means writing them down (or entering them, including details of what was done), so the firm can issue timely bills to clients, usually monthly.  As you’d expect, some lawyers might procrastinate, especially around a big holiday — like Thanksgiving.  Procrastination costs the firm money, and sometimes leads to problems getting paid.

Another problem is that lawyers (and others, including paralegals) may also feel pressure — with or without official word from the firm — to bill as much time as possible, sometimes even more than they actually worked.  As you’ll see from the following incident, a partner’s over the top threats to encourage timely posting of billed time may also have the effect of sending a subliminal message to bill more, as well. Continue reading

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Sticks and Stones: State court sanctions lawyer for comments about agency judge

sticks stonesIn the name of avoiding criticism by lawyers that might undermine respect for the legal system, lawyers sometimes lose normal First Amendment rights to comment about legal issues, including judges, because they may be subject to ethical sanctions for making negative comments.  In other words, even though judges are public officials normally fair game — at the very core of First Amendment rights — lawyers, who are the citizens most familiar with judges and with the legal system in general, may face ethics sanctions for speaking out.

By this standard, constitutional scholars and political pundits commenting about Supreme Court decisions could be sanctioned, too.  Indeed, there are examples of intemperate Supreme Court dissents in which some of our justices might be sanctioned, if they still had licenses.

The theory apparently is that having robust criticism by those most intimately aware of problems will cause the public to doubt, whereas foreclosing criticism will breed respect (through ignorance of reality).  This is the same sort of logic that supports the approach to governance in Russia, China, and elsewhere, for example, to criticism of the government and its leaders.

For the rest of us, criticizing government entities and officials is fair game because, right or wrong, everyone is entitled to challenge the government.  With the power of judges, prosecutors, legislators, agencies, and government-paid employees behind them, government actors have a decidedly unfair advantage, especially those who are willing to lie or are not smart enough to know better.  As has all too often become obvious with the passage of time, “facts” that were labeled as untrue by government actors at one time, especially those labeled as untrue simply because the speaker was labeled as a crank, have a nasty habit of being revealed as true later on.  If the NAACP’s lawyers had published similar comments in the 1950s, or even recently, would a court be so quick to demand objective proof? — be careful what you wish for if you demand proof of such accusations.

This reflexive government self-protection also becomes laughable when government actors try to employ the usual government denial machine (including law enforcement tools) to deny objective facts, like scientific facts.  The world wasn’t flat, the earth wasn’t the center of the universe, and the globe will continue to warm.  And there have been incompetent, corrupt, and otherwise deficient judges and other legal officials. Continue reading

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Flattening Justice: State commission set to level civil justice system

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Flat Earth Society Image

Local, state, and federal courts are supported by taxpayers and, in some part, by various charges made by the court to file lawsuits, for example.  In return, the courts are supposed to provide a civilized way to resolve disputes between two or more people (including corporations) or between citizens and the government, for example.  (We’re talking about civil disputes, not criminal law enforcement, which is government versus citizens, or anyone breaking the criminal law.)  Civil courts are supposed to be open to all, equally, and to treat everyone as equal to reach the correct result considering only the true facts and relevant law, applied properly.

Civil courts are supposed to provide a neutral, fair, and transparent means to resolve all manner of disputes — a level playing field where everyone, rich or poor, literate or not, has an equal opportunity to be heard and to receive a just result.  Unfortunately, since the inception of civil justice, it has been a struggle to make this a level playing field:  All too often the system can be corrupted, directly or indirectly, especially by various forms of bias and prejudice, as well as the impact of complications in the law, and ultimately the tendency of “justice” to be proportional to financial resources and political and social “power.”

In another demonstration of how money and the lack of it tend to contort the justice system, people with money are opting out of the government’s civil justice system in favor of private arbitration.  Perversely, those who dictate terms now even impose private arbitration on consumers, for example, as a means to abuse justice in favor of using the high cost of arbitration (and the willingness of some courts and legislators to abdicate justice in favor of private enterprise) to avoid legal accountability altogether. Continue reading

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