Traditionally, summer months are the hardest for me and Adrian, but this summer has been an exception. We’ve seen unexpected growth during a time when we usually hunker down and prepare for the worst. We’re lucky, but even if every month is a relatively good month compared to when you started out, you still never know what the next month holds. A lot of money can pour out of a business very quickly when times are slow.

Running a small firm isn’t for the faint of heart. Running it the way Adrian and I run our criminal defense practice seems make it even tougher. You won’t see Brown & Little billboards. Clients don’t go on TV telling the world what we did for them. We have no phone book ads, no radio spots, and I can’t remember the last time we put money on the books for our Google AdWords account. If anything, this blog seems to scare away prospective clients.

Marketing for us is almost entirely socializing with other lawyers, remaining active in things we’d be doing whether we were lawyers or not, and most importantly, doing the best we can in every case. There’s a big downside to that kind of marketing.

The things we don’t do create the illusion of stability. The ignorant count Twitter followers like they’re money in the bank and calls from the back page of the phone book like they’re paying clients, not people in need of free advice without any intention of hiring a private lawyer. Oh what I’d give for the bliss of not knowing better!

The other part of the downside is taxes. An ad in the classified section of a paper is a 100% deduction. Web hosting and SEO are the same way. Take a highly respected lawyer in your field out for lunch to pick his or her brain and develop a relationship, and the IRS will hold you to a 50% limit. The IRS wants you on the side of the bus peddling your services, not in a social setting learning from a master (or even teaching a younger lawyer, depending on where you are in your career). It’s a sad state of affairs.

A man of faith I am not, yet each month the phone seems to ring and provide me peace of mind. Some months are good, others not so good. You don’t which which one it’s going to be until it’s too late. Luckily, they’ve never been so bad that Brown & Little couldn’t cope. I feel blessed, but I never feel secure, no matter how much money’s in the bank. It’s a strange sensation knowing that the source of your income in the future is people you’ve probably never met coming from sources you probably don’t expect, and there’s no guarantee anyone will come in the door at all.

Learning to represent people is a process, and you can always get better, no matter how good or old you are. Learning to roll with the ups and downs of ethically and professionally running a small firm is no different. It’s especially tough when false stability and government incentives line the quick and easy route.

Every politician is going to do something during his or her time in office that makes life worse for someone. I don’t trust politicians to do what they say they’ll do, and in general, I’m insufficiently educated to know what kind of impact most policies will have on the real world. I’m incapable of figuring out which one is going to be the best of the worst, so I usually sit it out altogether. I can’t stomach the thought of helping politicians ruin lives.

My decision not to participate in democracy angers many people immensely. Otherwise calm and reasonable people become furious. It strains friendships, especially when friends find out I regularly encourage others not to vote. The level of frustration in people who disagree with me tends to rise in direct correlation with age, though my non-voting royally pisses off people of all ages.

Almost always, people are mad at me for not voting because they want me to vote for something or someone they support. When I tell them I disagree with them and would probably vote against their preference, they become supportive of my decision not to vote.

I’m not going to bother laying out my entire no-voting philosophy here. Instead, I just want to address the worst reason people give me for why I should vote: “if you don’t vote, you can’t complain.” I hear that a lot. There are all kinds of mildly compelling reasons for why someone should vote, but that isn’t one of them. It doesn’t even make sense.

If you vote, you are participating. If you lose, it’s your fault because you participated. You played the game, and it didn’t work out so well for you. No complaining allowed. You lost, suck it up. On the other hand, if you didn’t play the game and still somehow managed to lose, you deserve sympathy. You were just minding your own business, not participating. You have the right to complain.

What if Adrian and I got together and decided we would vote on whether we get to take your car? Would you complain if we came and took your car after reaching a unanimous decision? On the other hand, what would happen if you and Adrian and I all got together and decided we would vote to see whose car the other two get to take? I can guarantee Adrian and I would vote that we get your car. You’d vote to get one of our cars, but you’d lose. Would you complain if we came and took your car? In which situation would you be more justified complaining?

The way I see it, you can only really complain about the outcome of something if you didn’t participate in the flawed system that let it happen. That’s why I hate the you-can’t-complain argument, and I have yet to hear a good argument for why I’m wrong. If you have it, please let me know.

I’ve tried arguing that preclusion is frowned upon because most published opinions deal with defendants noticing witnesses at the last minute. Defendants have a Sixth Amendment right to present witnesses, so the courts need to avoid preclusion so as not to infringe on defendants’ constitutional rights. I usually provide a string cite of cases frowning upon preclusion, all of which involve defendants’ last-minute disclosures, and then I cite a case suggesting that Arizona courts’ hesitance in sanctioning discovery violations with preclusion is a consequence of the Sixth Amendment. The state doesn’t have any Sixth Amendment rights, so preclusion shouldn’t be as rare a sanction when it’s the state that violated the rules. Makes sense, right? I think it’s a compelling argument, but courts almost never agree with me.

I also regularly argue that any other sanction is meaningless. According to the case law, determining which sanction to impose is left to “the sound discretion of the trial court.” I argue that trial courts are in the best position to give the rules some teeth. According to the case law, preclusion is only acceptable where less stringent sanctions won’t effect the ends of justice, and in most cases, anything short of preclusion or dismissal won’t make any difference at all. Again, I think it’s a compelling argument. Judges usually disagree with me.

The Supreme Court of Arizona is no doubt aware of the arguments I’ve made, and it clearly acknowledged the fact that rules need remedies in State v. Tucker, where the court said the following:

We have previously voiced our disapproval of the type of discovery practices exhibited in this case. We repeat our disapproval, this time mindful that appellate rebuke without reversal may amount to no more than an easily-ignored verbal spanking. While upsetting a criminal conviction is a drastic step, it is one we may in the future be required to take, pursuant to our inherent supervisory authority, if it is the only way to deter prosecutorial defiance of court rules.

Moreover, we note that it is the trial court’s responsibility to enforce our disclosure rules. Trial court judges are far more able than we to ensure that prosecutors do not ignore their Rule 15 obligations. When necessary, trial judges possess the power to invoke sanctions — including holding counsel in contempt — for failure to comply with discovery rules. Perhaps the time has come to make clear that these sanctions are not merely a paper tiger.

In most Arizona trial courts, even easily-ignored verbal spankings aren’t as common as they should be. When I ask for preclusion, pulling out the ol’ paper tiger quote from Tucker generally gets me rolled eyes or a “very funny, defense counsel” from the judge. They don’t take it seriously. They cite the opinion saying preclusion is rarely, if ever, an appropriate sanction for a discovery violation. That is, if they bother citing anything at all.

Tucker was a 1988 case. I’m waiting for trial courts to start taking responsibility to enforce the disclosure rules. I’m waiting for the Supreme Court of Arizona to take that drastic step they threatened.

They’re still angry, right? Maybe? I bet they are, and one day, just you wait. The time will come for them to make clear that discovery sanctions are not merely a paper tiger.

It just isn’t today. Any today. Ever.

Anyway, today has been declared Scott Greenfield Day. Although it may be over for those of you in the Eastern Time Zone, there are still a few hours left to celebrate Scott and his fantastic blog, Simple Justice, everywhere else in the US. If you don’t read it regularly, you should.

As soon as the smoke of trials and legal writing cleared, I left on a motorcycle trip. Adrian and I had been planning to ride to Cabo San Lucas and back for quite some time. We’d carefully set up coverage months in advance, notified all our clients, and left Phoenix a little over two weeks ago. The plan was to ride dual sport motorcycles all the way down the Baja Peninsula and spend a week or two embracing a more laid-back way of life. We succeeded in making it to Cabo, but we were less successful with the whole relaxation thing.

Now that I’m back, I get to enjoy the combination of exhaustion caused by a vacation, backlogged work, and a generally busy schedule to begin with. I’m starting trial again, but I promise I’ll get back to blogging weekly, beginning this week.

It looks like there’s a third lawyer seeking the Republican nomination for attorney general. That lawyer is none other than Tajudeen Oladiran, whom you may remember from this motion. I usually don’t pay much attention to elections, but with Taj and Andrew Thomas both competing for the GOP nomination, I think I may start following the race.

I summarized the facts of the case here, but Mark Bennett explained it best: DeCosta was set up by the Maricopa County Sheriff’s Office and the Phoenix Police Department, and he was almost certainly factually innocent. When I found out the criminal case against DeCosta was dismissed, my first thought was “it’s about damn time.” My second thought was “what’s he going to do now?”

In my daily practice, I see how destructive criminal charges can be. I see what they do to my clients’ families, friends, and careers. Whether the end result is a conviction or not, things rarely end happily for someone accused of a crime. Charges result in the expense of a lawyer, a significant loss of income, and damage to the reputation of the accused that may never be undone. The direct and indirect costs of a criminal case are enormous for many of my clients. I see how very real they are each and every time a client experiences them, and they feel very real when I think about DeCosta having to endure them. I can’t begin to imagine what he’s gone through.

If he hasn’t done it already, I hope DeCosta gets his practice up and running soon. I want him to get through this. As far as I can tell, he’s still an active lawyer, and nothing that’s happened seems guaranteed to bar him from the practice of law. Even when the news stories were against him, DeCosta’s friends and colleagues unanimously rallied to his defense. Every lawyer who mentioned DeCosta to me, whether in person or online, had nothing but great things to say about him. I don’t know him, but that makes me think he’s the kind of lawyer the profession should feel happy to include among its ranks.

DeCosta was falsely accused in a flurry of publicity, yet he was exonerated in relative obscurity. The dismissal of the case against him hasn’t received nearly enough press. It’s shameful that multiple news outlets would jump all over the case when it’s filed then ignore the dismissal altogether. It’s shameful that the first page on Google when you search for his name still includes an article containing the blatantly false claim that he admitted to receiving sexual favors as incentive.

I doubt anyone in the news media is going to pick up the story if they haven’t already. Unfortunately, that’s often the bitter reality of how criminal charges work. It’s hard to see clients endure it, and it’s no easier seeing it happen to a colleague. I truly wish DeCosta the best and hope he’s able to bounce back.

(H/T Kris and Bob)

Nobody here is safe, and this should be getting a lot more press. The mainstream, national media seems to be ignoring Maricopa County altogether. I’m still seeing more traffic going to posts about David DeCosta and smoking bans than goes to posts about what could be the breakdown of constitutional government as we know it. It seems no one is listening.

Scott Greenfield even started losing interest, but Mark Bennett argued Maricopa matters. That prompted another post from Scott about what power, if any, us blawgers have to make a difference.

I like to think that things I do are important, but I also try to be realistic. I don’t know if anyone cares what I think. I don’t know if most people in Maricopa County care about what anyone thinks. Read this opinion and the comments. Read the first comment to this post. A lot of people seem to think this is an attack on Sheriff Joe by people who oppose his tough stance on illegal immigration. Those people probably don’t read blawgs. They probably don’t read the New York Times either. They don’t like undocumented immigrants, and any attack on the sheriff is an attack on their position on the issue that matters most to them.

I doubt that anyone outside of Maricopa County has the power to make a difference. The feds have more firepower than Sheriff Joe, but what makes people think the DOJ is willing to do anything meaningful about it? I’d love to see a national opinion poll on what Sheriff Joe is doing. The DOJ can start as many hotlines as it wants, but it’ll just incite people to write things like this and this. It’ll rally the troops behind Sheriff Joe.

The question I pose in this post’s title isn’t rhetorical. The solutions I’ve proposed all involve changing the way people think. I can write all I want, but I can’t make people read. I can speak all I want, but I can’t make people listen. A little less than half of my caseload is in Maricopa County, but that’s increasing. The number of battles I fight on behalf of individual clients may grow, but that isn’t the kind of change it takes to stop the insanity here.

If I’m right and the only way to end this is by changing public opinion, how do I help? This blog probably isn’t enough. My caseload isn’t enough. If there’s some way to change things without having to change the way people think, what is it?