Not the brightest bulb

Have you ever come across a person who thought they knew everything about everything but what they don't know is that they don't know anything about anything but have the confidence of someone who does know what they're talking about?

As it turns out, there is a condition called the Dunning-Kruger Effect that covers this concept.  

Essentially, The Dunning–Kruger effect is a cognitive bias in which people with limited competence in a particular domain overestimate their abilities.  Basically, they don't know what they don't know but hold out that they know everything about everything.

You've seen these people.  Uncle Bob gets wasted at Thanksgiving and starts to pontificate about thing political like he's a well-versed pundit.   

Neighbor Alice drones on about how to properly grow flowers despite the fact that she has a brown thumb (i.e. kills everything).

 

Still unclear?  Some other examples might help identify these types of people, for example:

• A new employee who has only a basic understanding of a task might believe they are an expert and refuse feedback or further training, leading to mistakes and poor performance aaaaand, subsequently, gets fired.
• A manager (hired as a manager because of their relationship to a family member) who lacks experience in what a company/employees actually do makes poor decisions due to overconfidence impacting team morale and productivity.
• A person who’s watched a few episodes of a cooking show decides to host a 10-person dinner party with a five-course French menu winds up making hamburgers and soggy "french" fries.
• A non-technical startup founder insists on coding the company's website using only YouTube tutorials resulting in a site that is buggy, slow, and not secure.
• A new driver right out of high school who has only driven a car in a video game overestimate their actual driving skills and take unnecessary risks.
• A new law school graduate opens a solo practice and takes on a complex case, believing it’s “just filling out forms.”

It is to this last one that our story proceeds.  Years back, I had an buddy who had a wife who had money to burn.  Acquaintance (who had just graduated from law school) convinced wife to help him open a law office complete with flashy new furniture and an impressive library (think small Library of Congress).

Nary three (3) months into his law "practice" and without any law experience, Buddy calls me (who had, at that time, about a year of legal experience under my belt) asking for help.  Seems Buddy had taken on an appeal, taken a retainer, and promised client 100% success.   

Apparently, Buddy had convinced client that by virtue of his graduating from law school AND having a fancy law office AND throwing around classic Latin terms like res ipsa loquitur, de novo, habeas corpus, and actus reas, that Buddy knew everything about how to appeal a case.  

Buddy didn't but client didn't know that (and, clearly, neither did Buddy).

I don't know if you know, but appellate cases are much harder (and more costly) to represent than trial cases for a number of reasons, including:

• Appellate law is more technical and research-heavy. You're arguing about legal principles, statutory interpretation, constitutional issues, etc.—not just facts.
• Briefs must be meticulously researched and crafted, and oral arguments involve intense questioning by a panel of judges.
• Appellate deadlines and formatting rules are rigid. A missed deadline or a procedurally deficient brief can sink your appeal, no matter how valid the issue.
• You must often identify “preserved errors”—issues objected to during trial. If something wasn’t preserved, it's often waived on appeal.
• Appellate courts only review the record from the trial court. You can't introduce new facts, so if something wasn't brought up or preserved at trial, it's gone.
• Trial strategy is often collaborative with witnesses, experts, and clients. In appeals, it’s often just the attorney and the law.
• Unlike trial, where emotional appeal and charisma can sway a jury, appellate work requires pure logical reasoning and legal precision. It's a more academic form of advocacy.
• You're persuading experienced judges, not laypeople. They will spot weak arguments instantly.
• You often start from the position of defending a losing argument (if you’re appellant) or protecting a lower court win (if you’re appellee).
• Because trial court judges don't like having their decisions overturned, they are (often) careful how the trial is conducted.  Consequently, the majority of trial court decisions are affirmed (meaning you'll often lose and look bad in front of a now angry client).

The problem here was that Buddy was clueless about how the legal process worked and needed help with his 5th amended brief (the court was kind but patience was wearing thin).  To provide added clarity, the client had started the appeal process and already had had to do 3 amended briefs before encountering Buddy.

Reaching out to me, Buddy wanted me to re-write the brief.  Now, I had never done appellate work.  In fact, the closest I had ever come to appellate court was sitting in the gallery listening to oral arguments.  So, even though Buddy was offering me $80 an hour (remember wife with deep pockets?), I was not willing to help out or put my stamp anywhere near that case.

Consequently, Buddy and the case was bounced out of appellate court and Buddy, consequent to narrowly avoiding a malpractice action with some more well-placed legal terms, quickly down-sized his law office (moving into a closet), and wound up helping neighbors and friends on more simpler cases.

The moral to this story: if ever you are in need of a legal expert, hire someone who knows what they're supposed to know.  

• Been in a car accident?  Hire an attorney with experience in car accidents.
• Need help drafting a Living Trust or durable power of attorney?  Hire an estate planning attorney.
• Having problems with the IRS?  Hire a tax attorney (i.e. someone with accounting and legal experience).
• Looking to get a divorce?  Hire a family law attorney.
• Looking to file a bankruptcy?  Hire an attorney familiar with bankruptcy in your jurisdiction.
• Looking to avoid ICE and want your very own (and legitimate) green card?  Hire an immigration attorney.
  

Now, you could represent yourself by buying a book about what it is you're trying to do from Nolo Press or looking at You Tube videos, but would you really try to build a house not knowing the difference between things electrical and things plumbing?

Yeah, me neither.

And another politician bites the dust

Typically, when I read the newspaper, I skip right to the comics section because they're (mostly) funny and free from political deceit.  Then there was the front page story about Ref Rodriguez that caught my eye (and prevented my reading of the comics). 

Seems Ref (yeah, that's his real name and he's not even a referee) had been arrested and charged with three felony counts of conspiracy, perjury and procuring and offering a false or forged instrument not to mention the other 25 misdemeanor counts of assumed-name contributions. 

Seems Ref took little over $24,000 of his "own money" and donated it to his "own" campaign fund in his run to be elected as the Board President of the Los Angeles School District.  On its face, it doesn't sound like much but what actually happened is that instead of saying that he was donating his "own" money, he made it sound like 24 other people were actually submitting donations.

Why would someone do that?  Did he need to warp the statistics to make it sound like more people were donating to his campaign.  Why did you think you had to lie about who paid for your campaign?  It was Ref's money, wasn't it?  Why lie about who paid for your campaign?!   Heck, what it sounds like is that Ref laundered the money for someone else. That's what it sounds like.

Then, instead of dealing with all that, Ref goes and tells the press:

As the product of a immigrant family, nobody has more respect for the integrity of the American justice system than I do... 

What is Ref really saying here?  Is he saying that because he is the product of an immigrant family that has more integrity everyone else?  Or is Ref saying that because he is the product of an immigrant family, he knows how best to play the system.  What being a consummate politician, I'm guessing it's the latter.  See, it's that word "integrity."  Why bring it up at all - unless you're being sarcastic - in which case, you have no integrity.

Fact is, pal, unless you are an American Indian, EVERYONE who presently lives in America is the product of immigration.  Everyone. Whether you are white, black, brown, purple, or green, everyone came from somewhere. America was built on the backs of immigrants.  

But just because you're an immigrant, it does not mean you have an edge on the integrity market suggesting that Ref is a system player.  I mean, if being an immigrant meant you had integrity, there would be no scofflaws.  As it turns out, some of us came to America legally and some chose to...well, they chose to come here (or were brought here) illegally and are now players of the system.

Seems that there are not a few persons who are unclear on difference between legal and illegal immigration. If you are unclear on the concept, might I suggest you head over to your local county law library and take a look at:

• Immigration Law and Procedure (Lexis)
• Kurzban's Immigration Law Soucebook (AILA)
• Guide to Homeland Security (TR)
• Immigration Procedures Handbook (TR)
• State Immigration Employment Compliance Handbook (TR)

What is funny is that when politicians get in trouble, they try to obfuscate the issues instead of dealing with the problem(s) at hand. 

What is sad is that this guy really showed promise.  Upstanding, good track record, no obvious record of corruption (well, not yet anyway), and then he got tripped up.  

Well, I guess even the best fall.  Maybe his status as an immigrant will save him.  Not the best argument but if that's all he's got, then I say run with it. 

Island politics

You ever read the poem by John Donne titled, "No man is an island?"  It goes like this:

"No man is an island entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as any manner of thy friends or of thine own were; any man's death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee."

This concept of "islands" and "mankind" came to mind whilst I was reading an article about California's further attempt at being a sanctuary state.  Apparently, the California Senate is further cementing the concept of becoming an island unto itself by considering a bill that seeks to limit the ability of local law enforcement to cooperate with federal immigration authorities.

See, a while back, the state of California adopted legislation which turned California into a "Sanctuary State."  Now, the California senate wants to add more rope to its noose by adopting AB 103 which "makes it illegal for a city, county, city and county, or local law enforcement agency to enter into new agreements or expand existing agreements with the federal government or any federal agency" to detain those in the country illegally. 

On its face, it's a funny piece of legislation written by funny people.  What it aims to do, though, is to limit the authority of the federal government to enforce the immigration laws of the United States.  Herein lies the problem.  See, those who wrote the bill know that due process requires a deportation hearing.  Their objective is to make it so hard to effectuate that hearing process and let criminal go free - regardless of the consequences.  What consequences?  How about the young lady that was raped and killed in San Francisco by a career undocumented alien?  

Doggone it but over 2,400 illegal immigrants out of a total prison population of 130,000 are imprisoned in the state’s prison system for the crime of homicide.  For those not in the know, that "homicide" as it killing a (or at least one) person.  Really, when is this insanity going to stop?  When are the politicians in Sacramento going to stop pushing for laws that put legal citizens in jeopardy for their lives?!?  Sad but maybe it'll take violence against a politician for politicians to realize that their words and actions are a direct link to crime in California (and, no, I'm not advocating crime against politicians but dang - get a grip people).

Of course, you can all get smart on the issue of immigration and bone up on this stuff by going to your local county law library and taking a look at:

• Immigration Law and Procedure (Lexis)
• Kurzban's Immigration Law Sourcebook (AIC)
• Guide to Homeland Security (TR)
• U.S. Immigration Made Simple (Nolo Press)

The funny thing about the Nolo Press resource is that immigration policy is NOT simple (kind of like legal research is not all that easy when you first start doing it).  I guess, over time, with lots and LOTS of practice, immigration policy does get simpler and easier to understand but how many of you out in blogland are going to spend that much time trying to figure out the ins and outs of immigration policy in an effort to make it simpler?!

Yeah, didn't think so.  In the meantime, just keep reading this Blog to learn the ins and outs of legal research so that you can get at least this one thing (i.e. legal research) under your belt and you all have a great rest of the day.

Inconvenient Truths

I teach a class on the "how" of legal research.  In one of my post-class discussions, one vocal person emphasized her point on immigration saying, "They can't deport them all!" referring to the recent call to deport illegal aliens.

Two things came to mind.  First, she's right.  I mean, even if "they" deport all the people who broke the immigration laws of the United States by slipping past border patrol illegally, there will always be more who will slip past border patrol.  There's a never ending supply of scofflaws in the land of the "free".

Second thing, is that illegal immigration is illegal.  If you're in a country illegally, that means you broke the law.  Forget the reasons why you came here illegally, if you're going break one law that is inconvenient, odds are you are going to ignore other laws that you think are inconvenient. 

For example, how many people out there in blogland exceed the posted speed limit on the highway.  I know, I have, on occasion (particularly on this one two-way 55mph road in the middle of nowhere California.  No cows, no people, no buildings, no cops - and I'm going drive 55?!). Fact is, most everyone blows past the posted speed limit on occasion because....well, who cares?  What an inconvenient law, right?!

How about anti-drug laws?  Up until recently, smoking pot was illegal in most all states - unless you were a politician.  I mean, it's almost become a national pastime for politicians to come out saying they are pot smokers (kind of coming-out-of-the-closet was a thing 10 years ago).  What an inconvenient law, right?!

How about prostitution?  For all the laws on the books (state and federal), it still happens.  Heck, if you don't watch where you're walking, you'll get propositioned by some of the strangest people.  The other day, I was hit on.  Turns out, the person who propositioned me was an undercover cop looking to arrest anyone who acquiesced to her requests (but like I told her, my wife would stomp her silly if she didn't leave me alone).  

So, while prostitution continues to be a thriving business, what with an never ending supply of johns, cops will keep trying to catch people who drop their guard.  I guess it keeps the courts busy enforcing yet another inconvenient law.

Bottom line, illegal is illegal.  I'm sorry, but that's the way it is.  If you're going to flaunt the laws, then don't be angry when you get caught.  In fact, you should pat the cop on the back when s/he gives you a ticket.  They finally caught you, you scofflaw you.

Word of the Month for November 2016: Immigrant

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Over the years, I have discovered that there are two topics which, if addressed at most any social gathering, will immediately polarize darn near everyone. Specifically, I'm referring to religion and politics. This being an election year can make these two areas very dicey in some groups.

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As to things political, it can be anything relating to politics and almost everyone has an opinion on it (that someone else opposes and who will fight tooth and nail to prove their point). So, let's see, there's

• the bathroom issue
• marriage issue(s)
• abortion
• healthcare (or lack of it)
• foreign policy (or lack of it)
• 2nd Amendment (guns)
• term limits
• muslim surveillance
• the inability of the SCOUTS to make any decisions
• marijuana
• gerrymandering
• net neutrality

and the list goes on and on and on.  In California (or most any state that borders either Mexico or Canada), the hot topic is immigration. According to Black's Law Dictionary, an IMMIGRANT is 

someone who enters a country to settle there permanently

The problem is that it's not immigrants per se that bothers people, it's illegal immigrants.  So, that leads to two other definitions.  First, again referring to Black's, an ALIEN is 

someone who resides within the borders of a country but is not a citizen or subject of that country

and second, an ILLEGAL ALIEN is 

an alien who enters a country at the wrong time or place, eludes an examination by officials, obtains entry by fraud, or enters into a sham marriage to evade immigration

Who'd have thought that immigration could be so complicated?!  I mean, even just at a party with commentary flying around, I bet people don't really understand what all is involved.  They listen to the hype on the news, the Internet, their friends and then form opinions based on,....well, based on what, exactly?  Do you really think most people who say they are "experts" on immigration really have a clue about immigration?  

For the record, I am no expert on immigration.  That said, my opinion is a bit more informed than the average bear due to the fact that when I don't understand something, I reach for appropriate legal resources that help me understand the law and facts behind a situation.  

Maybe you'd like to be informed, too?  Maybe you'd like to bone up on immigration before going half-cocked at your next party?  If so, might I suggest you go to your local county law library and take a look at: 

• Immigration Law and Policy (Lexis)
• The Criminal Lawyer's Guide to Immigration: Questions and Answers (ABA)
• State Immigration Employment Compliance Handbook (Thomson Reuters)
• Kurzban's immigration Law Sourcebook (AIC)
• Guide to Homeland Security (Thomson Reuters)
• Immigration Procedures Handbook (Thomson Reuters)
• The Rights of Aliens and Refugees (ACLU)

Yep, there are a whole lot of competing issues out there. Good thing your local county law library is around to help you sort the wheat from the chaff.

Come again?

It is becoming increasing regular that I read appellate decisions from the 9th Circuit Court of Appeals that make no sense.  In fact, it is becoming so regular that few things surprise me.  Take, for instance, the case that just came down regarding a "permanent" visitor from south of the border.  In U.S. v. Aguilera-Rios, the court overturned an illegal reentry conviction because his prior conviction for possession of a firearm was not a deportable offense.

What bothers me is that this revered court chose to ignore the elephant in the room when it came to this decision.  Let me break it down for you.  So, this Rios guy illegally enters the United States, gets a gun, is prosecuted for having a gun and is deported.  Why was he deported?  Because he entered the United States illegally?  No - because he had a gun.  Then, he re-entered the United States (after being deported for having a gun - but not for entering illegally) and he is charged for re-entering the United States, illegally (for which he is officially charged with entering the country illegally which is how he came to be in possession of a gun in the United States in the first place but no one bothered to notice that he was not an American citizen with a gun in the United States and so was not deported for that fact, alone).

I guess what this all boils down to is that American domestic or foreign policy is worthless unless someone (i.e. the federal administration) is willing to allow local law enforcement to enforce the laws that are on the books and not wait until someone screws up on something unrelated to the offense they're being prosecuted for so they can cook up some cockamamie reason to arrest someone - even though the best reason for deporting a person is staring them right in the face (i.e. they're here illegally).

Oh well - I guess that's why I'm not a politician - I get the obvious.

What's a Little Injustice Among Justices?

For the most part, I try to keep this blog controversy free.  I mean, I'm really trying to be inclusive what with the whole concept being legal research is easy to find and use by all.  Problem is that sometimes decisions are handed down that get my attention and since this is virtually my only outlet on things legal, here we go.

See, a while back, Sergio Garcia had applied to practice law in California.  Problem was, he initially entered the country (U.S.A.) illegally.  Clearly he didn't see the problem with the little detail of upholding the laws of the country you're trying to "serve" (I'm guessing his confusion came up because he's in California and California is a "harbor" state).  So, he filed his appeal and the court of appeals denied his claim.  So, he appealed to the California Supreme Court and this time he got support of "state legislators" and Governor "Moonbeam" and the state supreme court.  Seems what with Moonbeam in his corner, Mr. Garcia won his bid and is now cleared to practice law in California.

Really?!  So, all you have to do to become a lawyer these days is complain loudly and then do whatever you want?  Where is the outrage by the lawyer groups?  Why bother going to law school or taking the bar.  Heck, maybe I should just hang out a shingle and declare my right to be a lawyer just because I want to.  I want it, i WANT it, I want IT!  Why bother obeying the law (or any law) if I can just claim "unfairness" as a legal foundation?!

Actually, what I want to know is why the State Bar isn't up in arms.  I mean, as part of the bar application, you have to check a box claiming you are a citizen of the United States.  Pursuant to the California Rules of Professional Conduct:

False Statement Regarding Admission to the State Bar: (A) A member shall not knowingly make a false statement regarding a material fact or knowingly fail to disclose a material face in connection with an application for admission to the State Bar. (Rule 1-200).

How this is applicable is that at some point, Sergio Garcia had to check the box yes or no.  If he check yes (saying he is a citizen), then he violated Rule 1-200.  If he checked no, then there should be no issue since he's not a citizen of the United States.  Clearly, Moonbeam twisted some political arms to get this guy rammed through the system.

You know, now that I think of it, maybe I don't understand the law or the difference between right and wrong.  Perhaps you don't either?  Might I suggest you take a look at:

• California Practice Guide: Professional Responsibility (West)
• California Rules of Professional Conduct/The State Bar Act (State Bar of California)
• Compendium of Professional Responsibility: Rules and Standards (ABA)
• Selected Standards of Professional Responsibility (West)

I guess the moral to all this is: if you can get a politician on your side, you can break every rule in the book and still get what you want.  No, that's too pessimistic.  How about, if at first you don't succeed, try, try again.  Sure, that'll work.

Don't Fence Me In

Years ago when I started going out socially, I tended to be the center of attention.  No, it was not due to my clever repartee or my ability to dazzle the crowd with my snappy dressing.  Rather, it was due to the fact that I had not yet learned to avoid certain topics like the plague such as religion, politics, and (in Southern California, anyway) immigration.  Such topics tend to be best left to close friends or on the Letters to the Editor page.

While I have learned not to engage in such discussions, the issue of immigration is becoming a sticking point for many people – particularly for those living in the Inland Empire.  What is interesting though is that for over two millennia, mankind has used fences (or fence-like policies) to keep someone (or thing) out or in.  Some great fences in history include the Great Wall of China, the French Maginot Line, the Berlin Wall, and the isolationist policies promulgated by the United States until the early 1940’s.  OK, this last one wasn’t so much a fence in the classic sense but it proved to be an intellectual hindrance and had it been allowed to continue, it might have catapulted the Nazis to world power status.  What this suggests is that not all fences are a good idea.  In fact, while all of these fences were virtually impenetrable, their original purposes were ultimately defeated and became twisted against (or by) the very people the fence was designed to protect.

While it may still not be a popular topic at parties, all persons of conscience should learn about such important matters as immigration.  To this end then, persons wishing to conduct legal research at any public law library can take advantage of several titles that can help people understand these issues, including State Immigration Employment Compliance Handbook (West), Immigration Law & Procedure (Matthew/Bender), Becoming a U.S. Citizen (Nolo Press), Immigration Employment Compliance Handbook (West), Immigration Procedures Handbook (West), and Guide to Homeland Security (West).

So the next time you’re at a party and you hear a snappy dresser ramble on about the lack of a proper fence along the California/Mexico border, you can (now properly armed with your new found knowledge)  jump right in and be the life of the party.