Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Thursday Roundup

Getting into SCOTUS.  So there you are, sitting in your office, thinking, "I've got to get the Supreme Court to accept this petition for certiorari.  I know!  I'll check Bensing's blog for tips on how to do that!"

Okay, I realize that for the vast majority of my unnumbered legions of readers, how to get a case into the United States Supreme Court is a question about as pressing as how to get into the porn business.  (I'll have a post on that next week.)  But in the event you're facing that task, here's an article which gives you pointers on how to make it more likely that four justices, the required number for acceptance, will agree to hear your case. 

According to the authors, two enterprising USC students who waded through 93,000 cert petitions filed in the last fifteen years, the best way of ensuring that the Court takes your case is to kidnap Jeffrey Fisher and pretend you're him.

Well, they don't come out and say that, but the thrust of it is that there's now an informal "Supreme Court bar," attorneys who regularly practice before the court, and who are much more successful in getting the Court to accept their cases.  Fisher, of Stanford Law School's Supreme Court litigation clinic, has a grant rate of 29.1%, far above the average grant rate of 5%.  (I thought that was a little high; I'd always heard it was about 1%.  But the authors are talking about "paid" cert petitions, as opposed to the in forma pauperis petitions normally filed pro se.  As this blog notes, the grant rate for paid petitions is 5.46%; for IFP petitions, it's .01% -- only 10 of the 6,099 IFP petitions in 2012 were granted.) 

Other than being an experienced Supreme Court attorney, and having a number of amicus briefs filed on behalf of your client, not much more advice is offered.  That's largely because the cert process is shrouded in secrecy.  We do know that most of the justices subscribe to the "cert pool" - instead of having each justice's law clerk review each petition, the law clerks divvy up the petitions, and then prepare a memo on it for all the justices to review.  Beyond that, well... the process of selecting the Pope is less secretive.

The Ohio legislature acts rationally.  Okay, now that you've recovered consciousness, let me explain.  Back in the day, when the War on Drugs was raging fiercely, the legislature passed a law providing for a mandatory driver's license suspension of six months to five years for anyone convicted of a drug offense.

That didn't make much sense.  Since, unlike a drunk driving case, there was rarely any connection between the drugs and driving, the provision was simply punitive, rather than being intended to address a public safety concern.  And it was stupidly punitive:  the best way of ensuring that somebody stays off the pipe or the needle, besides treatment, is for them to have a job, and the dual whammy of a felony conviction and no driver's license makes finding one a far more arduous task.

A few years back, the legislature amended the bill to allow for occupational driving privileges, which was good, but the other day was better:  Governor Kasich signed Sub SB 204, which makes the driver's license suspension discretionary.

The next step would be to eliminate the suspension altogether; as I said, it makes no more sense than suspending someone's license because he shoplifted.  But baby steps, brother, baby steps...

Boutique law firms.  I started out my legal career as a general practitioner, which is a more formal way of saying that I'd take any case for which someone paid me, or even agreed to pay me at some time in the future, a future which often didn't materialize.  The general practitioner in law has pretty much gone the way of his counterpart in medicine; specialization is now the name of the game.

And there are few more remunerative forms of specialization than capitalizing on lawsuits based on various statutes.  For example, whatever the merits and intent of the Americans with Disabilities Act, it's led to frightening legal abuse.  As this article notes, the problem has become especially severe in California, which now accounts for 40% of the nation's ADA lawsuits, primarily because of serial litigators like Robert McCarthy.  In the past 15 years, he's filed no fewer than 250 lawsuits against various small businesses alleging technical violations of the ADA, his litigatory pattern interrupted only by the 17 months he spent in prison for possession of child pornography.  And lawyers can make a good living at it, too; attorney Jason Singleton in Eureka, California, has filed 259 ADA cases in Federal court in the past ten years, including one which complained that a toilet paper dispenser was a couple of inches too far away from the toilet.

And then there's the Telephone Consumer Protection Act, passed in 1991, for the purpose of protecting people from unwanted telephone calls.  In the last five years, TCPA litigation has increased by 940%.  That includes a lawsuit against the Los Angeles Lakers for texting a thank you to fans who had voted - by text - for their favorite song to be played during a game.

As this article points out, that can be a powerful incentive for some law firms to blur the boundaries of permissible conduct.  Lemberg Law, a Connecticut firm, purchased data from PrivacyStar, which provides an app identifying who is calling and why.  The app also allows users to file a complaint with the FCC.  Lemberg Law purchased the data of users who filed complaints, and then would make unsolicited calls - oh, the irony - to those users, sometimes pretending to be from the FCC, to get them to sign on to the lawsuit.  Or not contact them:  in numerous instances, users who'd received calls would be included in subsequent litigation, without their knowledge or consent.

I guess the money's good, but I'd rather clean up monkey shit at the zoo than practice law like that.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses