The Next Big Thing. I ran into John Martin, the diminutive head of the county PD's appellate division, the other day, and he let me in on the new Big Idea. Since the Supreme Court's finally tosses Rance, the likelihood is that the determination of whether two offenses are allied is much more likely to hinge on the determination of whether there was a separate animus, rather than Rance's hypertechnical abstract comparison of the elements. So who gets to decide whether there was a separate animus? The judge, of course. Martin's argument is that under Blakely v. Washington, you're entitled to a jury finding on that.
I told him I thought that was a hard sell, given Oregon v. Ice. In Ice, the state statutes carried a presumption for concurrent sentences, but that presumption could be overcome if the judge found that the offenses did not arise from the same conduct or created a greater risk of harm to the victim. The Supreme Court, of course, held the statutes didn't run afoul of Blakely, because traditionally (i.e., at common law) the determination of whether to impose consecutive sentences for multiple offenses was solely within the judge's prerogative, not the jury's. Essentially, Ice upheld the right of a judge to impose consecutive sentences because he found that the crimes didn't arise from the same conduct.
Still, anything Martin says should get some attention; his elfin proportions house an exceedingly sharp mind. In oral argument on several cases in the Supreme Court over the past two years (here and here), he argued for using conduct as the standard for determining whether offenses merged, which the court finally got around to adopting in State v. Johnson last month. So run it up a flagpole and see who salutes.
Drawing the line. The single most important lesson for a lawyer, and the hardest one to learn, is how to turn down money. Someone comes in to retain you on a case, and you can smell trouble. Oh, it's not the usually indications, like the fact that they have their entire legal file with them in a shopping bag, or that they've had three previous lawyers on their case: any attorney who hasn't flatlined his last EEG knows enough to usher them out of the office without further ado. No, I'm talking about the guy who talks too loud or doesn't make eye contact with you or claims that he was set up the police (who, of course, have nothing better to do than frame people for 5th degree felonies) or the guy who feels that it is monumentally important for you to hear his Life Story before he gets into the details of why he's there.
So you tell him that you'd really like to help him out, but for something like that you'd have to charge at least five grand with a retainer of three, but instead of looking shocked, muttering "five grand???" and stomping out of your office, he pulls out a wad of $100 bills and counts out thirty of them and plops them on your desk. And even as you're writing the receipt, you know that it's the last money you're going to see from him, that until the case is over and probably well after that you're going to rue the day you took it, but you can't help it: you just can't bring yourself to watch three thousand dollars walk out the door.
So I've taken cases, done things in my legal career that I wish in retrospect I hadn't done. I didn't get into law for the money, but I've taken cases I knew I shouldn't have just for the money. But you know what? I still wouldn't have taken a case involving a lawuit over this commercial for cat litter:
I would not take a case which involved me saying in court papers that "independently conducted research" shows that the Clorox ad is "severely flawed" because it used eight cats which had access to only two litter boxes, since "it is well known that inter-cat behavior can impact cats' use of a particular litter box in ways that have nothing to do with cat preference for or rejection of a particular litter." Or that with cats "toileting issues are secondary to issues with the litter or litter box," that "a toileting problem can also stem from factors that are unrelated to the litter or litter box, such as intercat aggression," and that "a cat that is frightened of other cats in the home may feel vulnerable accessing or using the litter box and may ultimately select an inappropriate toileting site."
I can suggest an appropriate toileting site for the lawsuit.