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Yellow fringe on a flag means it’s admiralty court? No, but one defendant figured it was worth it to argue the point. (Thinkstock photo)

Solo contendere: Silly talk, keep talking silly talk

I remember my first day as a clerk at the U.S. Attorney’s Office. I had started a few weeks after my fellow clerks, and on my first day they had left my first assignment on my desk. A federal inmate had filed a habeas petition, arguing that he had incorporated himself. He claimed that he had transferred all of his personal liabilities to the John Smith Corporation, including civil liability, criminal penalties, and library fines (he was very specific about that one). It was the corporation, he argued over the course of the 15 pages of his brief, which had incurred all the liability, not he. It was the corporation that should be imprisoned, not he. He argued that he should be released.

His crime? Drug trafficking.

The responsive brief was the first one I had submitted to anyone other than in an academic setting, and was about two paragraphs long. Essentially, it said “this argument is stupid and should be rejected.” And of course, in no way at all due to my persuasiveness, it was.

Over the years, I’ve encountered other people who, to a greater or lesser degree, fall under the loose umbrella of “sovereign citizens.” The term is an overly loose umbrella, because it can encompass all manner of silliness that has nothing to do with the tenets, whatever they are, of true sovereign citizens. Mostly it means a client, potential client, or opposing party who has latched onto some sort of internet rumor that claims to relay some loophole in the law. Some secret, known only to a few people, which bends the law to your will. It used to be the purview of late-night infomercials. “Call now, and for just three easy payments of $59.95 I’ll send you my book with the secret of how to buy real estate for pennies on the dollar.”

A friend of mine, since retired from litigation, tells (repeatedly) a great story of a sovereign citizen he saw in court. He was waiting in the courtroom when a pro se defendant’s case was called. The defendant pointed out to the judge that the flag in the courtroom had yellow fringe. My friend raises his eyebrows as he tells this story, cocking his head and pointing one finger in his best imitation of the defendant. “And that means that that this is an admiralty court, and you have no jurisdiction over me.” He rolls his eyes. I do to, even though I’ve heard the story before. He goes on the same way, every time. “What did he think was going to happen?” He laughs, raising his hands in the surrender of an “admiralty” judge called out. “Oh, well, you got us. Guys, bring him into the real court now. We have a smart one.”

Then he laughs. And I laugh too, because as many times as I’ve heard the story, it’s still funny.

Except it’s not.

So let me get serious for a minute. I assure you I won’t spend too much time waxing philosophical, but a little bit is necessary. What kind of justice system breeds that sort of cynicism—not in lawyers, but in civilians? Think about where you see similar ideas. In technology (usually, after you have agreed to a click-through contract of adhesion): “Cut and paste this into your Facebook status to prevent Facebook from owning your photos/releasing your private information/offering your children in sacrifice to the heathen gods.” In nutrition: “Learn about the weight loss secrets only Hollywood stars use.” In finance: It’s the entire plot of Wall Street and Boiler Room and The Wolf of Wall Street. The idea that there is this obscure secret that only a few people know, but if you crack the code, you can get what everyone else wants and can’t have. The stock that will make you fabulously rich. The body you want without diet or exercise. Privacy. Justice.

It’s not funny anymore.

OK, rant over. I’m not writing a column about legal philosophy, after all. I’m writing about solo and small firm practice. How do they relate?

Good question. I’m about to tell you. In fact, I’m about to propose a solution, and place the burden squarely on the shoulders of small firm attorneys. Ready?

Talk to people.

Talk to people who don’t have a case and don’t know why. Talk to people who do have a case, just not the case they think. Yes, I know, your insurance company will whine about not giving legal advice when there’s the possibility of forming an inadvertent attorney-client relationship, or telling someone they don’t have a case in general. And yes, I’ve spent plenty of time in this column over the years advising you to be jealous of your time. But still, talk to people.

People who are sophisticated legal consumers are also people disproportionally likely to be able to afford to talk to and be represented by the large firms. There’s nothing wrong with that. But a disproportionate number of the cynical and disillusioned civilians are the ones without the money to get the ear of the bigger firms, or who have already been rejected several times by several attorneys, without much of an explanation. They have no idea what is going on, and disproportionately, they are going to call a solo or small firm attorney.

When they do, it’s easy to blow them off. Not out of malice. It’s because their case is crap. It’s unwinnable. I know, because I’ve certainly field plenty of those calls, and most of the time, I’m just trying to get off the phone without literally hanging up on them. And after they get off the phone with me, too often they probably have no idea why I rejected them, because I didn’t explain it. So they call someone else. Everyone loses.

I don’t know about anyone else, but I could do better. I could spend a few extra minutes giving someone not just a polite refusal, but explain to them in more detail why. Maybe they won’t believe me. But maybe they would leave the conversation with a little less of a feeling that the law is something that happens behind a curtain they can’t part. Maybe we would have fewer people with law degrees from the Google.com School of Law. Fewer people who think that the justice system is some sort of cryptogram they can beat if they just find the key. Not a lot. Just a few. But that’s something.

About Michael Kemp

Michael is an criminal defense and civil litigation attorney at MET Law Group in Saint Paul, Minnesota. Michael enjoys Jameson, long walks on the beach, and playing chicken with the Minnesota Rules of Civil Procedure.

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