I’m often asked to comment on legal issues by non-lawyer media members. I enjoy helping with that, though it is sometimes hard to explain legal matters without simplifying to the point of inaccuracy. The following is an email exchange that happened with a story that the journalist decided not to write after getting my response because it made him think of the issue differently:
Media Question: “Do you think the pace with which the league or it’s teams now take disciplinary action against players who’ve not been found guilty (like Pat McAfee) or not even been charged (like Kenny Britt) spills into society’s general interest in rushing to judgment?
Has Roger Goodell, operating in the interest of his league, served to dent American principles like due process under the law and innocent until proven guilty?”
My Response: “I’ve written about the Roger Goodell-version NFL Personal Conduct Policy a number of times, but I think this piece, “All Hail Roger Goodell Or Else: A Look At The Personal Conduct Policy” summarizes my views the best.
As to your question, I do not think that the NFL Personal Conduct Policy as it is currently being enforced dents American principles like due process or innocent until proven guilty at all. I think, instead, the Goodell-revised policy is a reflection of those principles already being eroded in our cynical, plugged-in society. People think they know the facts, whether they’ve been accurately reported or not, and make their judgment. The “primacy effect” with how memory works means it is an uphill battle to overcome people’s initial judgments, even when shown facts that challenge their assumptions.
In all cases, high-profile or otherwise, criminal defense lawyers have to spend a good amount of time during voir dire, the pre-trial questioning of jurors, making sure that jurors truly understand innocence until proven guilty and keeping an open mind until they hear all the facts.
I think NFL fans in general tend to like the policy unless it involves one of their star players, and they don’t understand or like the punishment. Lots of “due process” and “innocent before proven guilty” talk thrown around by Steeler fans after the Ben Roethlisberger suspension, for example.
In general, however, people want to throw the book at criminals. Politicians get elected making harsher and harsher sentences against criminals and get thrown out of office if they are perceived as being soft on crime. Most people think that if someone is arrested, it means they are guilty, even if the American system of justice has a presumption against that.
I feel Goodell changed the policy because he knew fans don’t care to have all the facts before making judgment and trusts his own judgment as a substitute for the legal system. In particular, society as a whole resents the rich and famous, and feel that athletes get special treatment (even if they do not). Few have patience for dealing with how long the legal system typically takes to come to a final resolution. The policy arose out of fan frustration that a player like Adam “PacMan” Jones could repeatedly get into trouble, sometimes of a serious nature, and that he wasn’t being punished in what they saw as a timely manner.
Though athletes often do have some advantages in the legal system if they can afford to hire quality counsel and do so, they also have some disadvantages as well. Potential jurors can think they know the facts based on media reports, and jury selection in high profile cases presents special challenges. Some prosecutors see high profile cases as ways to make their career or set an example for the community, and as a result a player’s case will sometimes receive harsher punishment or plea offers.
The NFL is entitled under its Collective Bargaining Agreement to discipline players in the way it is doing, even if it means that the commissioner is the judge, jury and appeals court. The same thing goes for non-NFL employers. Most states are known as “employment-at-will” states which in basic terms means that employers can fire employees for whatever reason they want to, as long as it doesn’t violate a contract or the law, like discrimination laws.
So what Goodell is doing is fairly similar to what most anyone’s employer could do. His policy isn’t changing society but rather a reflection of general American attitudes that only respect due process and innocent before proven guilty when it happens to benefit them.”
Sums things up pretty well.
To Kill A Mockingbird: Representing Unpopular Clients in the Modern World
As a child, I didn’t know any attorneys. Probably didn’t meet one until I did an internship at a large lawfirm during college when I was trying to figure out whether I was going to law school. My first exposure to the legal profession was reading To Kill a Mockingbird in high school. From reading the interesting wiki on the book, apparently Atticus Finch made an impression on generations of lawyers.This also was my first exposure of how lawyers sometimes need to represent publicly unpopular clients. There are differing legal and ethic obligations for doing so, and the standards differ throughout the globe. [pdf]
I get startled some by the social media-talking head hostility toward lawyers doing their job. Just doing zealous representation of a human being, not a caricature. Our legal system may not be perfect, but it is better than rogue justice.
President John Adams was elected President of the United States, even after he had represented the British Soldiers involved in the Boston Massacre. Could a good defense lawyer be elected President in today’s world? Adams worried about his reputation, and at the time famously remarked about the case:
“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
I’m guessing in a 24/7 talking heads cable world and with Facebook and Twitter speculation, Adams would had issues with people making up their own facts because they heard it on the web or saw it on TV.
Blogging Fundamentals: A Guide for Beginners
I’ve been ask
ed to talk to a high school class about fundamentals of blogging. Instead of giving out handouts, I figured the best thing to do was to write a blog post. Here’s some Blogging 101 tips:
What is a Blog. The word “blog” comes from the word web log. In the legal world, they are sometimes called “blawgs.” The wiki on blogs defines it as:
“type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order. Blog can also be used as a verb, meaning to maintain or add content to a blog.”
“Although not a must, but most good quality blogs are interactive, allowing visitors to leave comments and even message each other via widgets on the blogs and it is this interactivity that distinguishes them from other static websites.”
The word blog refers to the website as a whole. If you are referring to a particular entry in a blog, you call it a “blog post” or a “blog entry” but you shouldn’t call it a blog.
Purpose of Blog. First things first. Why are you blogging? What is it that you wish to accomplish? To blog well takes a lot of time and effort, and you may not choose to take the time to do it.
To make money? For your business? To provide information about a subject that people have an interest in but there’s little information out there? For creativity? To put information you want to say but don’t have a place to say it? A place to store words and images? Some combination of that?
To do any sort of writing well, you need to know who your audience is and what they would like to read. Sometimes knowing what you wish to accomplish with your blogging can suggest whether you wish to have an independent blog or whether you wish to become a part of a blog network. What audience you want may also drive which blogging platform you wish to use as some blogging platforms support sharing better than others.
Writing Style of Blog. Blogs can be written in a formal way or informal way. Some are conversational. The style and tone of your blog may depend a lot on what your blog’s purpose and audience is. Some people who start writing for blogs copy other people’s styles. Sometimes it takes a while to develop your own blogging voice.
Take Care in Your Words. The internet is forever. Except in exceptional circumstances, it is considered very poor blogging etiquette/form to erase a blog post. Even if you erase it, a cached version of a blog post can exist on the web. So the best course of action is to never write things you may later regret.
Anything you write on the web, whether blogs or otherwise, your family, friends, future employers, etc may read. A good rule of thumb is to never post anything on the web that you would be ashamed for your pastor to read.
That is my own personal bias. There’s plenty of people who try to live their real lives in a Christian way but in their internet lives, they act sort of like web gangsters, saying snarky, nasty things. That’s always struck me as a bit hypocritical.
Some people try to avoid having things attributed to them by using a pen name. Even that isn’t without concern because sometimes pen names become public.
Ultimately, if you write enough words, you may write a few you regret. But you should try to keep those down to a minimum.
Be Link Generous. If you obtain information from another source, it is proper to link to that source and if very reliant on that source, specifically name where you got the information in your post. There’s nothing more frustrating than putting original content on the web and then discover someone else used your content without attribution.
Blogging can be a sort of community, and linking to blogs is a good way to support quality content.
Writing for Web Different Than Paper. Though there are a number of journalists who are excellent at using the blog medium, writing for newspapers is different than writing for blogs. Newspapers typically have word counts. They don’t allow for linking to related articles or including video content. The best blogs take advantage of the blogging medium by doing those things you can only do for the web.
Also be aware of the physical space of your particular blog. Sometimes with the size of the print/margins, it may dictate shorter paragraphs.
Don’t Violate Copyright. Just because you write something online, doesn’t mean you are exempt from following the law. You are not supposed to use other people’s creative content, like photos, unless permission is already granted or you get permission. The rules on this can be rather involved, and I think this Q&A from the US Copyright Office does a nice job of summarizing what is allowed.
Pictures can certainly make your blog more reader friendly. You can use your own pictures, or there are a number of sources online where you can find free or low-cost pictures you can use for blogging.
Write Regularly. To get people to visit your blog regularly, you should update your content frequently. I’m better at doing that on my Houston Chronicle Texans site than I am here. At that site, the subject matter and readership sort of dictates the frequency of posts. Because I have a bit more freedom here, I write when inspired, and lately, I must confess I just haven’t had things I feel like saying. This blog is more of a repository of writing that doesn’t fit on other platforms, like microblog site like Twitter or Facebook, or at my Texans blog.
This isn’t going to be the only things discussed in my talk to students, but I think these things are the basics.
