Monthly Archives: December 2014

Partisan election of judges has led to assassination plots, cannibals & pirates in NC courts

We have gotten past the elections now, if not their consequences. So this may be a good time for me to say that I believe judges should be selected on the basis of merit and competence rather than elected, reflecting membership in a political party or adherence to a political ideology.

Albion Tourgee

Albion Tourgee

The vast preponderance of decisions that judges make – about contracts, torts, crimes, etc. – have nothing at all to do with politics. Justice flows from judges who are independent, unbiased, able and wise – and appear to be so.

I like seeing judges come from all quarters and without labels. And, on the other hand, I am able to identify idiots in every political party. (In fact, this is a talent of mine, and I can do it on very short notice.)

Several years ago, I visited my thoughts about this on the Greensboro Bar Association, in the context of 19th Century Greensboro lawyer and judge Albion Winegar Tourgée and the judicial partisanship in his day. What I said follows, changed only a little.

Judge Tourgée, was the carpetbagger, radical and crusader for racial justice who moved to Greensboro immediately after the Civil War. Ultimately, Greensboro citizens ostracized, threatened and drove him from town. For a time though, Tourgée, the Republican Party and their allies enjoyed political sway here, and during that period Tourgée was elected to the bench.

Judge Tourgée was roundly despised by his political opponents. In the extremely partisan election campaign for his seat, one newspaper characterized Tourgée as “a shallow-brained revengeful yankee.” Another opined that he was “the meanest looking man it has ever been our misfortune to meet.” Not content with that general observation, it went on to say

The pirate; the cutthroat; the despicable, mean, cowardly, crawling, sneaking villain have been portrayed by nature … in every lineament of his countenance. The mark of infamy is stamped indelibly on his brow in the shape of a large protuberance that strikes the beholder with ineffable disgust.

Still others saw in him “a cannibal, a gorilla, the wandering Jew, a Ku Klux or Anti-Christ” and charged (falsely) that he had served time in a penitentiary.

And yet, he was elected to the bench.

Tourgée’s opponents did not desist in their opposition to him after the election. To the contrary, a plot was hatched to assassinate him in his Guilford County courtroom as he presided over criminal proceedings against members of the KKK. The plot was not consummated, but surely a planned assassination betokens an extreme of partisanship.

Despite all the invective, even Tourgée’s opponents at the bar credited him as an able, fair and, most amazingly of all, an impartial judge.

Interestingly, in Tourgée’s time politicians divided up along generally the same lines as they do today; except, in Tourgée’s time it was the Republicans and their Whiggish allies who advocated for an activist government, loose interpretation of the Constitution and levying taxes as needed to support their activist program. Democrats on the other hand, decried government participation in commerce, supported strict constructionism and abominated taxes.

Clearly, deeper wisdom has since come to both parties and they have re-wrought their ideologies accordingly. But it makes you wonder about the merits of partisanship as a guide to enduring truth.

Now, I am not suggesting that partisan judicial elections lead to assassination plots or pirates on the bench. But … that is exactly what did happen once upon a time in old Guilford County.

Just saying . . .

Wednesday @ GSO Farmers Market

Wednesday,Greensboro Farmers Curb Market December 24, looks like it’s going to be a big day at the Greensboro Farmers Market. Farmers appear giddy with anticipation.

It’s turnip time.

Turnip_2622027

Your brain, your smartphone and where they come together – a dystopic view & a novel

wordGuilford College trustee and radio personality Terry Graedon’s daughter Alena Graedon recently published a novel that I can’t get out of my head. It’s titled The Word Exchange and, rightly, it is highly regarded.

It is science fiction, “a dystopic thriller.”

Its premise is that digital devices don’t just relieve your brain of work, they cause it to atrophy. If your smartphone or tablet knows what all the words mean, then your brain no longer needs to. And worse – as digital devices more nearly mimic brain functions, digital viruses may mutate into brain viruses. The novel goes off with a pretty good story of bad guys enticing consumers into dependence and addiction to digital devices. (The author, a native of Durham and graduate of Carolina Friends School, may have first heard talk, one imagines, of consumer-addiction theories somewhere close to home.)

I enjoyed The Word Exchange, but did not give it a lot more thought until the day came when, by mistake, I left my cell phone at home. That was when I realized that my native brain-calendaring function has totally atrophied. Without realizing it, I have become absolutely dependent on my devices to order and remember my appointments, meetings and tasks. When my phone was at home, I could not function.

Addicted?  It’s close to that.

Dependent?  Absolutely.

A virus? Well, I wasn’t throwing up, if that’s what you mean – but I did have a pain in the neck and a real headache.

And now I can’t get Alena Graedon’s premise out of my mind.

 

MidLaw never sleeps

Dr. George Beaton has spoken again to the future of the legal services delivery business. This time in an interview with Forbes.HiRes

In the future, the business of legal services delivery will be competitive, volatile and pressed to the margins for all but a few firms. This is happening for reasons that are well known:

  • technology is delivering new ways to provide services and displacing traditional methods and processes,
  • alternative services providers (alternatives to lawyers and firms) are delivering legal services that once required lawyers,
  • newly resourced and empowered in-house legal departments are both displacing outside law firms, and demanding that law firms develop alternatives to traditional ways,
  • law firms themselves are morphing away from full-service business models into a wide array of new forms and competitors,
  • the significance of geographic boundaries is changing, generally waning,
  • capabilities for networking are continuing to develop and evolve.

Successful firms of the future must be focused on their strengths, intent on managing expenses, and willing to spend money to build new practices as opportunities appear. Firms must stand apart and be recognized for the things that they do really well.

Neither lawyers nor law firms are well suited for this.

  • Partnerships are slow to make decisions.
  • Partnerships lack balance sheets suited to taking risks (spending money to make money).
  • Established law partnerships are biased in favor of older, well established lawyers, whose orientation to the future is naturally defensive and change-averse.
  • Lawyers are perfectionists, trained (ultimately, cultured) to take pains to identify and eliminate risk.
  • Law firms encompass incompatible practices, seeking to manage both routine process work, and also one-of-kind advisory and advocacy services, within the same culture.

In these times, when market demand for legal services will rise and fall, and within a broad secular trend toward alternative providers and new methods of competing for business, mid-size firms must strike difficult balances.

  • Right sizing. Mid-size firms must attract and retain excellent professionals, and field a roster that is broad enough and deep enough to cover strategically appropriate work, but they dare not be overstaffed. Partly, this is about having the professionals needed to do the work; partly it is about assuring clients of the firm’s capabilities. BUT in volatile times, no firm can afford to be overstaffed, or overstaffed in narrow specialties, or over-committed to the wrong practice areas.
  • Investment in new resources. Mid-size firms can rarely lead in the development of major new technologies and innovations. Neither can they cannot afford to be far behind.
  • Expense management. Beaton says that  “the traditional, so-called full-service, middle tier firm that is striving to offer better value, based on lower rates and lower overhead,”  is chasing a value proposition that is illusory. “There will be no room for profitable generalists . . .  no room at all.” Keeping costs low is critical, but succeeding in the new marketplace cannot be accomplished simply by spending and charging less.
  • Strategic growth. For mid-size firms, growth is a conundrum. Don’t grow away from what makes you good. Aimless growth, particularly growth born of defensive merging, passes beyond conundrum into disaster. Beaton says, “There will come a point when these merged firms realize that bigger isn’t necessarily better for clients, and doesn’t create more value for anybody. They’re just more difficult to manage, and the clients don’t necessarily get a better deal. And then, after that, you’ll get fragmentation.”
  • Focus. If aimless growth threatens fragmentation, what is the alternative? Beaton: “We see a component of kaleidoscope in what we call ‘back to the cottage’ — specialist, small cottage industry firms, that are really, really good at something.”
  • Culture. Law partnerships must be managed for efficiency as never before, but this must be balanced with the traditional strengths of professional partnerships: shared values, personal ties among members and a sense of purpose — in two words, professionalism and collegiality.

Attract the right number of excellent people. Always be finding and pursuing opportunities. Control growth and expenses. Only do those things that you can be really good at. And, work at partnership.

Midlaw never sleeps.

Education in the true sense – is “a furtive and illicit thing” – creates people who can think for themselves

FC9781609382810Greensboro’s exceptional independent bookstore, Scuppernong Books, recently brought Hillsborough authors Lee Smith and Hal Crowther to town. Both Smith and Crowther have just published new books. (The combination of Scuppernong’s Brian Lampkin, Smith, and Crowther – all of them his friends – drew Tarboro publisher Farrar Martin and daughter Mary Marshall to Scuppernong, as well.)

Crowther’s new book is An Infuriating American: The Incendiary Arts of H. L. Mencken. It opens with this Mencken pronouncement:

Education in the truest sense – education directed toward awakening a capacity to differentiate between fact and appearance – always will be a more or less furtive and illicit thing, for its chief purpose is the controversion and destruction of the very ideas that the majority of men – and particularly the majority of official and powerful men – regard as incontrovertibly true. To the extent that I am genuinely educated, I am suspicious of all the things that the average citizen believes and the average pedagogue teaches. Progress consists entirely of attacking and disposing of these ordinary beliefs.

Set that alongside the not-as-incendiary vision of Nereus Mendenhall that Guilford College will:

produce men and women with well-trained minds and good hearts; people who can think for themselves and not be blown about by every wind of doctrine.

Are these two views the same as the current vision that higher education should “prepare students for the workplace”? Could be I suppose, if the workplace is hungry for independent thinkers.

Independent thinking is pretty much what’s needed in lawyers. “Controversion.”

Guilford College prepares independent thinkers who are practiced at collaboration. Now, that’s what the workplace needs.

Eat your heart out, H.L.

Asynchrony? Traditional legal ethics rules in new marketplace for legal services? Stimulating NCBA program

The North Carolina Bar Association program, Toward a Leaner & Cleaner Practice – A Professional Responsibility to Innovate?” brought together leading North Carolina practitioners from the new marketplace for legal services – and Professor William Henderson, a recognized student of what is happening. Respected Greensboro arbitrator/mediator and sometime professor Jon Harkavy, will perhaps not be insulted if he is characterized as providing a “bridge” between traditional practice and the new marketplace.

Wilderness Society photograph

“As the snow flies, a bald eagle watches intently for movement in the Gibbon River.” Wilderness Society

As pictured at the program, today’s market is divided between (i) individuals who cannot afford bespoke legal services, on one hand; and (ii) large, sophisticated organizations on the other, who are demanding efficiencies from law firms and directing how they want things done. Importantly, sophisticated purchasers of legal services now have new alternatives. Legal services can be acquired from law firms, or from legal departments, or from alternative service providers (these are various, mostly IT-enabled, service companies that are not law firms, and, in some cases, may be paralegals).

Traditional rules of legal ethics fall unevenly across this picture.

Traditionally, lawyers have been the sole providers of legal services. The last 30 years was a period of economic expansion and growth in demand for legal services. In that environment, rising costs were borne by large clients without much resistance. In broad terms, ethical prescriptions tended to favor the ideal over the practicable. Every legal service was required to be delivered, or closely overseen by a licensed professional assumed (by virtue of the license) to be competent, independent and loyal to a punctilio.

Ethical solutions gave less shrift to efficiency.

Today, newly sophisticated clients can assess for themselves how much competence, independence and loyalty matter to them (that is, they might prefer the less expensive services of an imperfect computer program and an unlicensed paralegal, to a squadron of lawyers). And, large clients can choose among lawyers, legal departments, and alternative service providers to get work done.

Increasingly today, definitions of the practice of law that exclude non-lawyers; and ethics regimes that value perfection over practicability, look out of sync with the developing marketplace.

Sophisticated clients don’t need the protections the traditional rules provide; unsophisticated clients can’t afford the perfection.

Test Kitchen Report: Farmers Market sweet potato hummus

Early returns are in from the MidLaw Test Kitchen on the Farlow Farms/Farmers Market sweet potato hummus. Sweet potatoes

Tentative tastings suggest that the Farlow hummus may be a bit heavy on sweet potato — but this report must be placed in the context of the Test Kitchen’s penchant for determining relative measures based on available resources and a certain proclivity for dead reckoning — coupled with the fullness of the Farlow Farms product. (Medium Farlow Farms sweet potatoes are are so rounded and so full-figured that their mere appearance stimulates the appetite.)

Still, the Test Kitchen recommends throttling back the sweet potatoes a notch or so in the hummus. Margaret on the other hand, advises that any reservations are readily remedied with a treatment of Sriracha Sauce. But then Margaret believes that Siracha improves virtually any soup or stew and a wide range of dips and marinades. She also recommends it for aching joints and lumbago, as well as athletes foot, warts and the heartbreak of psoriasis.

The Test Kitchen has achieved similar results, at least for Farlow Hummus, by applying a judicious dollop of Sir Charles & Queen Carmen’s Gourmet Mild Barbecue Sauce, “the Champagne of Sauces”. [Sir Charles and Queen Carmen themselves may be greeted and the Champagne of Sauces may be sampled Saturday mornings at the Greensboro Farmers Curb Market.] Alternatively, this hummus might benefit from supplements to taste of chopped spanish olives, or possibly soy sauce. (The Test Kitchen never forgets Eastern NC country Thanksgivings and winter breakfasts featuring sweet potatoes and gravy.)

Important Note: These alternatives do not replicate or replace the original, three-thousand-year-old, Levantine prototype chickpea hummus (sometimes known as “real hummus”). And non-replication is not a bad thing. It is a different thing. Just as Lexington barbecue is an alternative. Not the prototype, but an alternative. The Midlaw Test Kitchen celebrates diversity.

Demand for legal services booming; lawyer hiring down — what’s up?

It’s an abiding irony of the “legal industry” bear-fighting-tigertoday that, even as lawyer hiring is way down  and a return to growth in law firms is said to be a “mirage” – and as students are staying away from law schools in droves – the demand for legal services is said to be growing – maybe even growing “exponentially” (as the phrase goes).

Here’s the catch: the growth is in legal work that lawyers (understandably) don’t want to do. It’s work that doesn’t pay. This includes (i) legal services needed by low-wealth clienteles, and  (ii) what is called “tiny law” (legal services for small matters), and (iii) legal decision making that is now embedded in so many routine commercial and social transactions.

As many as 80% of Americans are said unable to find affordable legal services.

Even as lawyers evince little interest in low-pay and no-pay work, many want to hold the line on “the unauthorized practice of law.” They scrutinize computerized services which target low-pay customers and they mistrust law-related services delivered by people without law licenses. That’s understandable. Relaxing “unauthorized practice of law” strictures, can threaten harm both to unsophisticated consumers and to the legal system. But, at the same time, help from internet providers, corporate vendors and paralegals may be better than no help at all for unsophisticated consumers and others. Reportedly, millions are satisfied with the “unauthorized” providers.

This is going to take some sorting out.

Apparently, the ABA has begun.