Law Blog

As the old saying goes, “don’t do the crime if you can’t do the time.”  There’s a lot of truth to the adage, but in this country you don’t necessarily have to do all the time for your crime, if you get what I’m saying.

If you managed to decipher my deviously clever insinuation by answering with “plea bargaining,” you’re right and you get a cookie.  In fact, take as many as you want because I still believe they’re a food appropriate for any time of the day despite what some former cookie proponents might say.  For those of you who answered good behavior coupled with letters of recommendations from your prosecutors and a positive parole review, then you should stop reading this post right now, you square.  Psshhaw…

All joking aside, plea bargaining is an incredibly important and some would say integral part of America’s criminal justice system.  It reduces court congestion by allowing prosecutions against criminal defendants to be carried out outside of court without going through a lengthy trial.  This resolves each matter quickly and at less cost to the public whose tax dollars fit the bill.  It can also benefit defendants by getting rid of the frightening uncertainty of leaving the terms of your sentence to a fickle jury or judge. 

Sound great, right?  Well, not necessarily.  The intricacies of plea bargaining are many and the way the process works is something everyone should know regardless of which side of the law you normally find yourself falling on.  Personally, I’m with the law-abiding citizens of Team Coco.

But why is it important?  It’s simple.  Because hiding beneath any benefit, there are always a multitude of negatives waiting to catch you off guard.  In the case of plea bargaining, defendants are almost always at a bargaining disadvantage against the more powerful government prosecutors.  Plea bargaining also shifts the court away from pursuing justice and toward quick resolutions that can result in poorer investigations by the police, the court, and all the attorneys involved, which all leave defendants in a prejudiced position.  This can also force innocent defendants into pleading guilty for crimes they didn’t commit due to fear of being found guilty and receiving a harsher sentence.  And let’s not forget about the whole seemingly unconstitutionality of it all.

The plea bargaining process itself is uncomplicated, but the subsequent choice on how to proceed is complex.  Usually the lawyers for the prosecution and defense will sit down with the judge and both sides will present their case.  Based on how strong the initial evidence is for or against, the defendant usually determines the type of deal the prosecution and judge will give.  The negotiation time varies like in any bargaining situation.  But once an agreement is reached the lawyer for the defense will approach the defendant with the deal and advise them whether or not to take it.  One important note to remember is that it’s always the defendant’s choice whether to take or leave the deal.  This is where the situation can become difficult.  What should you do in this situation?

The easiest and best answer is to get a good lawyer who can advise you on the best course of action.  One that can give you a reasonably certain picture of what can happen in your particular case. And with good reason, as over 90 percent of all criminal cases are resolved via plea bargaining.  It’s a shockingly high figure, which makes it all the more important to get a qualified attorney to help you navigate through the process.

The old saying, “why mess with a good thing’ immediately came to mind when I read a recent case about a law firm copying another firms entire webpage design, from the layout to the cases won. 

An associate at the Florida based law firm Gordon and Doner was doing a routine google search of himself (funny that was how he found this – oh lawyers and their egos) when he stumbled across his picture and name for a British law firm.  Although some of the names were changed on the copy site, and minor tweaks were inserted in the text (i.e. they had changed the currency from dollars to pounds) everything else was identical — from a list of Gordon & Doner’s courtroom victories to photos of staffers participating in a charity run.

Although I am sure Gordon and Doner are flattered that a firm across the pond would like their layout so much they would want their own website to look like it, this goes far beyond inspiration. So, what exactly are they asking for?

The law firm’s request for an injunction and damages from the defendants includes “a report detailing all of their activities in connection with the creation, revisions to, registration and hosting of the offending Web site, remedial advertising, actual damage, attorney fees, costs and punitive damages.”  Translation: they want anything and everything they can plead! When lawyers instigate lawsuits against other lawyers and law firms, it is always interesting to see the interplay between the lawyer as an advocate and the lawyer as the aggrieved plaintiff.

This is a stray from the norm.  The most common type of “copycat” websites usually are in the realm of higher end goods such as fake designer purses, clothes, and jewelry.  Online shoppers looking for a bargain will stumble across a website bearing the name of the brand and prices well below retail value.  The only problem is that, if the goods ever arrive, they are counterfeit. 

LegalMatch offers some helpful tips for when website copyright infringement has occurred:

1. determine whether you want the infringer to stop, or you want damages for the use of your material, or both;
2. Determine what material you have copyrighted because if you have not actually copyrighted the copied material you are going to have a hard time proving the infringement;
3. Collect evidence that your copyright has been infringed;
4. Send the infringer a notice to cease and desist;
5. Contact the internet service provider of the copying site about removing the site or at least removing the offensive material.

I think it is interesting to see the range of websites that have been affected by this type of copyright infringement.  Although it is a shame for the law firms and retailers, I think the real victim is the consumer that is duped by the copied website.  They don’t get the proper information, and are usually left with no legal recourse.

Imagine that you’re a highly-accomplished attorney with outspoken conservative political views.  You favor a view of executive power which, if implemented, would appear to give almost unlimited power to the President in wartime.  Oh, and you served in the office of legal counsel for President George W. Bush, where you authored memos that allegedly were used to create a legal justification for the torture of detainees. Do you think your decision to teach at UC Berkeley’s school of law after all this would be well-received by that school’s notoriously left wing student body?

I’m speaking, of course, of John Yoo, who, according to Above The Law, is teaching a course at that university’s law school this semester. Professor Yoo has been on the Berkeley Law (formerly known as Boalt Hall) faculty since 1993, and is returning after a leave of absence. He is currently teaching a class on the California Constitution.

As you might imagine, some members of the Berkeley student body aren’t taking this too well. They’ve been protesting around the offices of the law school’s administration, demanding that they fire Yoo. Also, they’ve been putting up posters like the one below all over campus.

As a result, the location of Yoo’s class has not been disclosed to anyone except students who are enrolled in it, to prevent it from being disrupted by protestors. Incidentally, the protestors outside the administration building are also demanding that the location of the class be made public.

This raises some interesting questions about the protestors’ right to free speech, John Yoo’s right to effectively teach his class, and the rights of his students to get their money’s worth.

Personally, I’m all for free speech. Let the protestors protest. However, their right to free speech does not entitle them to any assistance from the people they’re going to be protesting. If PETA wants to protest the fact that I enjoy a nice steak at every opportunity, that’s fine, but I don’t have to tell them where I live so they can exercise their right to free speech in front of my house.

As someone who was a law student not too long ago, I can say that I would be none too pleased if these protestors attempted to disrupt a class I was attending. After all, the students didn’t write those memos, and did nothing to advance the policies that Yoo advocated and helped to implement. It’s a fair assumption that at least some of the students in his class don’t agree with his opinions about executive power or how detainees should be treated, but they saw some academic value in his class.

In the end, these protestors will probably be hurting the students far more than they hurt Professor Yoo, and it’s totally appropriate for the location of the class to go undisclosed for that reason. Something tells me that if protestors make it impossible to conduct his class for most or part of the semester, he’ll still collect his salary. Do you think those students will get a partial refund on their tuition for the time they missed? Not likely.

Filing a defamation lawsuit can sometimes do more harm to a person’s reputation than good. There is a major, perhaps irreconcilable, paradox associated with such lawsuits: the purpose of the tort of defamation is to allow individuals to redeem their reputations when false statements are made about them. However, filing a defamation lawsuit almost always causes more people to become aware of the false statement than they would have otherwise.

We covered one notable instance of this last summer. To bring you up to speed, someone made an offhand tweet about her apartment having mold in it. The property management company sued her for libel. The news of this lawsuit quickly made the rounds on the Internet (presumably due to the novelty of a libel case arising from a tweet). The response to the lawsuit was almost entirely negative, and the original message that was the subject of the lawsuit was disseminated far and wide.

Clearly, if the plaintiff hoped to redeem its reputation, this lawsuit was not the best way to do it. Even if the court found that the statement was, in fact, false, the damage would already have been done. But they could still at least get a little bit of money out of it in the form of damages, right?

As it turns out, not so much. The case was just dismissed on the grounds that the complaint was too vague, and that the tweet amounted to “rhetorical hyperbole,” rather than a statement of fact.

Once again, this demonstrates the importance of treading lightly when it comes to defamation lawsuits. A defamation plaintiff has to seriously consider what their objectives are: do they want to redeem their reputation, or do they want compensation for the damage that’s already been done?

Courts operate under the fiction that a finding that a defamatory statement was false, and then awarding damages for harm that can be attributed to the false statement, makes a plaintiff in a defamation lawsuit whole. But it really doesn’t. After all, you can’t un-ring a bell, and once a defamatory statement, no matter how false it is, has entered the public’s consciousness, they will always associate the statement with its subject, regardless of the outcome of a lawsuit.

In this case, the plaintiff got the worst possible outcome: the defamatory statement was spread way farther than it would have been had they not sued, and they ended up not even recovering any money from the defendant, probably wasting a great deal of time and money in the process. Oh, and everyone still thinks they have moldy apartments, even if they don’t.

If I’ve said it once, I’ve said it a thousand times: think before you sue!

A few days ago, the Supreme Court decided Citizens United v. Federal Election Commission, holding that corporations, both for-profit and nonprofit, have a constitutional right to spend their own money on campaign materials (including TV commercials and written materials) in support or opposition of a particular candidate for federal office. Under the McCain-Feingold Act, the law which laid the groundwork for most campaign finance regulations, it was illegal for corporations to do this within 60 days of the relevant election.

President Obama, as well as Senators John McCain and Russ Feingold (the 2 principal sponsors of the legislation which was partially invalidated in the ruling) were highly critical of the Court’s decision. One online media outlet even called for the 5 justices who voted for the decision to be arrested and charged with treason.

Congressional Democrats, perhaps seeing a populist cause to grasp onto in the lead-up to the 2010 midterm elections, are already considering legislation to limit the decision’s applicability and scope.

However, short of passing a constitutional amendment to reverse the decision, it seems that the options of legislatures are quite limited. There is now a constitutional right for corporations to directly campaign in elections, so they can’t simply pass a new law similar to the one that was overturned. In the above link, Erin Miller, of SCOTUSblog (which is highly recommended, by the way), suggests that strict disclosure requirements for corporate contributions, noting that for-profit businesses are not likely to alienate significant numbers of their customers by publicly supporting controversial political positions. This seems like a way to take some of the edge off of this ruling, without actually restricting anybody’s right to free speech – it would simply make corporations accountable for their speech. It would also likely be held to be constitutional.

They do have some other options other than an outright ban, however. For example, Congress could likely enact a law requiring corporations to get shareholder approval before they spend corporate funds on a political campaign. They can also amend the tax code to say that political spending is not a business expense, so such expenditures will not be tax-deductible. Finally, they could require the CEO, or some other officer, of the corporation to state in political advertisements that they approve the message, similar to what candidates in federal elections must do. In theory, attaching one’s name to an advertisement should reduce the incentive to use dishonest or underhanded tactics.

The important point for legislators is that most, if not all, of these measures are very likely to withstand constitutional scrutiny, even under the highly permissive standards established by Citizens United. Furthermore, it gives Democrats a much-needed opportunity to minimize likely Republican gains in the 2010 midterm elections. Many, though certainly not all (See: John McCain) Republicans have expressed support for the decision. As Republicans learn that they can no longer rely on the Religious Right to serve as a reliable base, and have to court the conservative populism of the “Tea Party” movement, they will have to tread lightly on this issue, as “special interest” has become a dirty word for them, as well as for many moderate-to-liberal voters.

It should be noted, that some organizations are already calling for the Constitution to be amended, to invalidate this decision. Most of those organizations have already written the proposed amendments. The details of them vary, but they all would give Congress what appears to be plenary authority to regulate campaign spending by corporations, and lay out the principle that the constitution only protects the rights of human beings, not corporations.

Will any of these, or similar, amendments actually be enacted? My hunch is that they probably won’t. Amending the constitution is a lengthy process, and in order to become part of the constitution, an amendment must be approved by a two thirds majority of both houses of Congress, and must then be ratified by the legislatures of three quarters of the states. Given how divided politics has become in recent years, it’s nearly impossible to get two thirds of Congress to agree that the sky is blue, let alone to amend the Constitution.