Archives 2020

The Judge As A Colleague

Appearing in Federal court always raises the stakes. This morning, it was a telephonic appearance from LA to the Southern District of New York, so there was even a little more pressure. It all went well, and it is not necessarily something to have on a bucket list, but it did help me to feel a bit more competent with my advocacy skills overall.

When you approach the moment with internal confidence, demanding the virtual room so to speak, while displaying the requisite deference to the Bench, you can move forward as an advocate much easier. The key is to find that moment when you can speak confidently and be aware that the Bench wants to speak as well. It is not enough to just apologize but be certain to engage the Bench’s point after they have had their say. Let them know that you understand their point and are ready to incorporate their thoughts into your argument, or even better, you anticipated their thoughts and have a ready response.

Being on the same wavelength as the Judge is key to success and credibility.

The Danger of 46 Words: the Undocumented Immigrant, Military Service, and Deportation

When an undocumented immigrant comes to America in a minority age they grow up knowing under the glory of American Freedoms. As a result many of them choose to serve in the U.S. Military, with Honor and Distinction. While in the service to Our Country they are trained to confront every element of exposure, harm, and sacrifice that is expected of Our US Servicemen and Women. While deployed, to no matter where they are stationed, they are guided in their actions on the battlefield by the Code of Conduct and subject to the authority of the Uniform Code of Military Justice (UCMJ).

While mustering into the service it is emphasized that they are subject only to these laws and codes as any U.S. National would be, there is no exception made for their status as an immigrant. They are members of the U.S. Military and as such they are afforded all the rights and protections of a U.S. Citizen. This is exactly as it should be, and should remain so.

The problem which emerges is when they are mustered out of the service, regardless of their record; no one ever tells them that these rights and protections have been altered in any way. Many of them believe, and rightly so, that they are now afforded the full protection of the U.S. Constitution and are granted the same protections of a U.S. Citizen.

Not all of them are angels in their post military life. They run into legal problems of every imaginable dimension, including as criminal defendants. Now is where new problems really get complex. In the U.S. Supreme Court case Padilla v. Kentucky, the Supremes confirmed that a defense attorney must advise noncitizen clients about the deportation risks of a guilty plea. The problem is that immigration law is very complex and as Justice Stevens pointed out in Padilla it is outside the purview and knowledge of must criminal defense attorneys. So who is and is not subject to the rights of citizenship is difficult to ascertain without the attorney knowing exactly which questions to ask. Further muddying up the process, and as a direct result of the Padilla decision the California Legislature enacted Penal Code Sec. 1016.5 which stated in part:

If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

 (CA.Pen.Code 1016.5 §(a) ) This wording has now been inserted into the text of every waiver form used to take a plea, whether it is a misdemeanor or a felony. Most criminal defense attorneys operate under the assumption that by reading this to their client that it is adequate as to the rules of Padilla. However, that assumption is wrong. Padilla has three prongs, one of which is the advisement prong, the other two are a duty to research the defendant’s background so as to properly advise the client, and the final prong is to attempt mitigation of the charges to one with no immigration consequences.

 So obviously a criminal defense attorney must not only know which charges have a mitigated effect on immigration consequences (to give you an idea of how extensive this knowledge must go, there is a 38 page reference manual covering all of the most used violations from the Health and Safety, Vehicle, and Penal code sections of California law), they must also have an extensive knowledge of what constitutes being a citizen as opposed to a visa holder, as opposed to having a work permit, or whatever varying status of green card their hypothetical client may hold (there are over 40 different type of immigrant and non-immigrant visas). So the once through reading of a single subsection of 1016.5 P.C., consisting of 46 words, does not entirely cover the full range of duty for a criminal defense attorney.

I write about this today because I had a client who was deported. He served honorably in Operation Desert Storm in the early 90s, but subsequently he made some poor decisions, he took a plea, served his prison time, was released, and then was seized for deportation by the INS. He was under the mistaken assumption that his U.S. Military service granted him the protections of a U.S. Citizen in civilian courts. So when his attorney read those 46 words, and every attorney is obligated to read them and explain them to their client, he did not think they applied to him. When the judge, at the sentencing hearing read those 46 words, he did not think that they applied to him the as well. None of these legal actors thought that they had a duty to inquire as to why he would think that, it is a perfunctory act that has far reaching implications above and beyond the consequences of a prison sentence. Justice Stevens stated in Padilla, that any consequences pale in comparison to the ultimate punishment of “banishment” from Our Country.

I believe that anyone who serves Our Country deserves more than the lips service of those 46 words and those legal actors who fail to protect these men and women from the effect of those 46 words need to be held accountable.

Beyond Litigation

Penn State Dickinson Alternative Dispute Resolution Society Newsletter, Spring 2006 – Successful Caucusing Strategies

This paper is about the classical psychological factors of negotiation that often affect the outcome of a successful mediation session.  In particular, this essay will discuss how to mitigate negative factors with a successful caucus.  Although it is typical only to discuss the psychological factors of mediation, there are ideological and physical aspects which influence these psychological factors as well.  The ideological aspects account for the voluntary nature of the event, its confidentiality, and openness, and the problem of defining equality and neutrality.  The physical aspects are the time and place of the mediation, the roles played by each of the parties, and caucusing.  This paper is an attempt to develop an understanding of how caucusing can be the tool to help bridge the division which develops when the ideological aspects are stifled by the classic psychological effects of negotiation. 

The quality mediator will have an opening statement prepared, which will include a short definition of the more nebulous ideological aspects as well as the uses for the physical aspects—of which caucusing is a vital tool.[1]  Caucusing can defuse a possible volatile situation, help the parties to hear one another better, and even allow the mediator time to regroup when tempers flare.  The key to having caucusing in the mediator’s tool bag is to engage in a full voiced proposal of its mechanics, helping to create an understanding for all parties present.  By stressing the importance of caucusing as a tool, used only when needed, the parties will look forward to its implementation and will feel privilege at its utilization.  Conversely, if the mediators seek to gain control over the parties or to insert their own agenda into the discussion by exploiting a caucus, the positive aspects of caucusing can be lost and resentment towards the mediator may develop. 

The secret to proper caucusing emerges when the mediator understands how caucusing can help the parties recover from the negative characteristics of the psychological factors that emerge in mediation.  The first psychological effect to discuss is conflict—the basic reason that the parties are in mediation.  The typical model has two parties at some impasse over which they cannot come to a mutual agreement without the aid of a neutral third party.  In the first phases of mediation the mediator should assume that the parties’ mutual past has brought them to the table after attempting to come to an agreement and uncover the effects of this past.  In some cases, and in some legal scenarios,[2] the parties will be unable to be in the same room for the mediation because the level of conflict is already elevated and a shuttle mediation will be essential.  Technically, this is a type of caucus.  As much as conflict is the reason that the parties have sought out mediation, it is the mutual history that serves as the impetus for the mediation event.  It is the mutual history that serves to unite them in seeking a mutually beneficial outcome to repair, protect, or dissolve the relationship and to continue on with their lives in a healthy manner. 

The parties’ conflict is most likely the result of the loss of reciprocal communication.  There are many methods a mediator can utilize to overcome this, but initially the mediator must listen and give feedback to the speakers to ensure that their voice is being heard and considered in an evenhanded and dignified manner.  One author offers a model for mediation, which divides the issues that emerge into the conflict regions of Data, Relationships, Interests, Values, and Structural issues (DRIVS).[3]  The DRIVS model will allow the experienced mediator to uncover ideals, allowing the construction of a framework around the typical risk avoidance/preference models discussed at length.[4]  Using the DRIVS model, the mediator can assess the clients for their particular priority of the different conflict regions, and then frame the discussion around these particular ideals.  This ensures the client that they have benefited from active listening all throughout the reframing process. 

When impasse creates tension that limits the psychological benefits of mediation, such as openness, neutrality, or equality, the mediator should consider using a caucus.  The mediator should again explain what a caucus is and then move the parties into separate rooms.  Thus, the mediator can relieve the pressure that the tension creates.  The notion of overcoming the psychological barrier has lead different authors to suggest caucusing as a means to helping the rational client stay rational.[5]  This is accomplished when the mediator avoids using adversarial language and, instead, uses neutral terminology in describing the issues and disputes. 

It is essential that the mediator listen to the parties first and then decide whether a caucus is necessary.  Tension is a healthy and therapeutic aspect of mediation and at times is an essential element in the reconstruction of the relationship.  However, when shifting and reframing between the parties breaks down, or when one party or both lose their “voice,” the mediator should consider moving the parties into a formal caucus, so that can then become the vehicle by which shifting and reframing can take place.  For example, values-based disputes can be reframed either by reinterpreting the issues as interests, avoiding the value elements, or by appealing to broader shared values.  When the mediator is able to help the parties create or visualize broader shared values, then there is a shift in perception that takes place.  This shift is a means of helping the parties overcome issues stemming from the status quo bias—the shifting perception is in itself a shift in the status quo.  Realizing broader shared values also helps to alleviate the tension created by the endowment effect—with more shared values either party may become more willing to give more to the other party, rather than to hold their values dear. 

Caucusing also works to mitigate or completely overcome another set of psychological effects, when the mediator moves from room to room or party to party.  When either party is ready to make an offer it is wise to consider the psychological effect of anchoring and reactive devaluation.[6]  When the mediator realizes that a party is ready to make an offer, the mediator should be aware of the anchoring effect.  After hearing the offer, it helps the mediation process to ask the party how they arrived at that particular offer.  The mediator can help to mitigate the anchoring effect outsiders have on the mediation process by listening for the collateral input of the parties’ associates.  Using language that standardizes, but validates, the input from the associate, the mediator can help broaden the shared ideals of this single party (the offeror) by bringing in the values/interests of the absent party. 

Caucusing allows the mediator certain creative flexibility as well.  Properly utilizing a hybrid of the default template model helps to overcome issues that emerge from reactive devaluation as well.  Reactive devaluation has the effect of creating an irrational negative association to the offer, when it comes directly from an opponent negotiator; therefore, it is sometimes essential to a healthy mediation to move into caucus prior to discussing opening offers.  While in caucus, asking permission of the offeror to use the offer as an idea borne of the mediator, in effect the mediator “buys” into the offer by making notes about the offer on their own paperwork.  This is most useful when the mediator uses a clipboard/notebook to keep track of the information exchanged.  This creates an appearance to the offeror that the mediator considers the offer valid.  Drawing upon the notes the mediator has created in the presence of each of the parties, the mediator draws up the offer and voices the offer to the offeree in terms of “I was thinking” or “we were considering,” etcetera.  By “owning” the offer and drawing it out of the mediator’s paperwork, the default template is utilized creating credibility for the parties and the mediator.  This alleviates the psychological effect of reactive devaluation.  It should be noted that, prior to using this clipboard/notebook technique, that the mediator should have used the clipboard/notebook extensively in the presence of both parties, otherwise it looks more like an affectation, rather than the well used tool that it truly can be. 

The writer has found that the techniques discussed above can simultaneously permit a bargaining session to continue while in caucus, but also “buffer” the parties from the negative effects generated by the more tension filled distributive bargaining techniques present when the parties are in each others presence and not in caucus.  As such, the successful mediator can realize the psychological and physical aspects of negotiation are undermining the effect of mediation as a whole.  Then the mediator can move into a caucus properly.  Further, the disputants begin to perceive the caucus as a privileged tool that only the mediator can bring to a healthy negotiation session.  When mediation compromises the facets of communication such as openness and equality, caucusing allows the parties the full opportunity to express themselves, and it allows the mediator to concentrate on understanding the parties’ individual perspectives, rather than becoming a referee between combatants.  As the mediator uncovers the relevant ideals (DRIVS) of the parties, the mediator can “coach” the parties in framing and vocalizing their own terms for when they move back into the joint session, or if no further joint session is available, the party gains assurance that the mediator is representing their best interests to the other party.  Using these techniques the caucus conceptualizes the dignity of the parties by allowing them the opportunity for a more full voice and consideration of their psyche in mediation overall.


[1] This discussion assumes the single mediator model, with parties who have a limited or no knowledge of mediation.

[2] Mediation is a tool utilized by different courts for the disposition of family law matters, orders for protection, juvenile law, conciliation court, and housing to name a few.

[3] Christopher Moore has written extensively concerning DRIVS.

[4] Daniel Kahneman and Amos Tversky have researched extensively about the perception of losses and gains and Jeffery J Rachinski has written thoroughly concerning the effects of gains, losses, and the psychology of litigation.

[5] Robert Mnookin and Lee Ross have written several suggestions on how this process works as well as Nancy Welsh.

[6] Jennifer Brown & Ian Ayres, as well as Russell Korobkin have all written on this topic. 

Defending the Indefensible: On Representation of Criminal Defendants

One of the most constant themes I am asked as a criminal defense attorney focuses upon representing guilty people. “How can you represent someone you know is guilty?” I always return their attention to the US Constitution and amendments 5 and 6 which are reproduced below. All tolled there are at least 19 sections to these Amendments (“speedy and public” in the 6th is an example to two subsections of a single section) and each one of these sections were of particular importance to the Founders and original authors of the Bill of Rights. Therefore they are all equally important as restraints on the authority of any level of government in the United States.

I am the first to admit, there are heinous, indefensible crimes committed everyday all over Our Country. This includes a list of acts that do not bear repeating hear, but in many People’s minds, if someone is guilty of those crimes they do not deserve the protections afforded them by this most precious document. “Lock them up and throw away the key” is a colloquialism that stands as a strong emphasis as to how we feel about these offenders. However, there have been two cultural phenomena to have emerged that throw lingering doubts as to this gut check, knee jerk reaction. The cases of The People v. Adnan Syed from the popular Serial podcast and The People v. Steven Avery from Netflix’s Making a Murderer have brought into stark contrast with the “lock em up” ideology and the protections afforded every citizen and person in the United States by these two amendments.

And that is where my role as a criminal defense attorney emerges. The rights and protections enumerated in the Constitution are there because prosecutors think they are inconvenient to their job. PERIOD. If the public did not call for extremist reactions to heinous crimes, those rights and protections would still be important. It is the government that needs to be restrained, not the people. It is the more notorious actors and agents of the government who would willfully violate these God given rights if it made their job easier, and they do so on a regular basis. Some are experts at pushing the edge of the envelope if not adept at circumventing the inconvenience of the Bill of Rights altogether.

So if a client of mine asks me the best way to avoid jail time off of an offense that they actually committed, it is my job to ensure that the prosecutor is doing their job well within the confines of their authority as spelled out in the Constitution. Otherwise we do not need to give lip service to such complexities as justice and fairness.

So defending the indefensible is not always a cake walk, there are many difficulties in reviewing the evidence that has been collected against your client, especially in violent crimes. However, it is the way that evidence is collected that is spelled out in terms like “due process” and “self incrimination.” It is the confrontation of the statements of biased witnesses that needs to be pointed out by an attorney in the trial setting. So, when it comes to protecting the public from an over aggressive prosecution it is the “Assistance of Counsel” (please note that it is indeed capitalized, making it even more significant) that stands to protect society, and not the other way around.

5th Amendment to the U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (U.S. Const. amend, V.)

6th Amendment to the U.S. Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.  (U.S. Const. amend. VI.)