Before and After #1

I tend to be a fairly opinionated person. I know this does not surprise anyone, but I at least attempt to keep an open mind about things for which I have a strong opinion. Prior to coming to law school, I had many opinions about various areas of law, and today many of those opinions are undergoing changes. In other words, as I learn more, and gain a greater understanding of both legal rules and the reasons for them, I am slowly changing some of my pre-conceived notions regarding certain areas of law.

I used to have a fairly unflattering opinion of Tort law in general, agreeing with commonly held notions that many tort suits are frivolous, and many damage awards are far out of proportion with the kind of harm suffered. I came to law school believing that I wanted to stay as far away from tort law (practice), and would only study it because I have to. While I still don't believe I will practice tort law, most of my opinions about the field have undergone a dramatic change.

The simplest definition of "tort" is "a civil wrong". The goal of tort law is to compensate people who, through no fault (or less fault) of their own, have been harmed by intentional acts, negligent acts, defective products, etc. The purpose is generally two-fold - to compensate victims (who have suffered harm) and to deter "bad behavior" (or encourage "good behavior"). [note: there are other goals of tort law, and of course other rationale too. I'm trying to keep this straight-forward]

Ultimately these are very worthy goals, and in fact I tend to think most people would agree with them. Where most people have issues with torts is when the system seems to favor plaintiffs over defendants - that is, the balance is tipped too far to one side and is, in many instances, unfair. It is easy to have this opinion when we read stories about massive damages awarded for what appear to be frivolous (or perhaps "iffy") causes of action. The public reaction years ago to the award a woman won against McDonalds when she burned her legs on hot coffee is illustrative of this point - wasn't that her fault? Don't people realize that coffee is hot? The answer, unfortunately, is not so simple, and the trap most of us fall into (including me) is making judgments without knowing all of the facts.

Most people, once they learn all of the facts of the McDonald's case, tend to agree that it was a good verdict.

But not having all the facts of a particular case is not really the problem. Most people are rational enough to understand that when they make snap judgments, those opinions are subject to change once they hear 'the rest of the story'. Remember, these are people who sit on juries and award these verdicts (I would posit that many people who believe tort law is out of control have sat on juries and handed out big awards - these opinions are easy to have while we're armchair judges). The issue for me is really one of philosophy - that is, should we be compensating victims of accidents? should we hold someone responsible - sometimes someone who wasn't even directly involved in the accident - for these accidents? And how much should we make these people pay? Is there such a thing as too much?

There are no easy answers to these questions. For me, however, much of what I have learned about tort law is very encouraging and (although imperfect) the system has an overall goal of fairness to all parties to a law suit. Perhaps the most important element of this is the fact that these causes of action have to convince a jury of our peers. The jury system is perhaps the most ingenious, most effective means of weeding out the unworthy suits, and it works famously. One thing I learned early that I did not know is that an appeals court cannot overturn a jury verdict - they may only overturn decisions made by the judge (for example, to allow or exclude a piece of evidence).

But before cases even get to trial, there are procedural safeguards that protect the 'system' from hearing cases that have no merit. Probably the most obvious one is the fact that most cases can be (and typically are) settled without even going to trial. In fact, this is usually the best way of achieving a balance when it comes to compensating victims for harms (settlements are much faster than trials, and ultimately much cheaper). But if a case has no merit, well there are rules that allow defense attorneys to move to dismiss case before anyone even begins gathering evidence, and even rules that punish lawyers for bringing a frivolous lawsuit (anyone who has read A Civil Action may remember the rule 11 part of the book). The system takes these procedures very seriously for a very obvious reason - they are busy and the last thing courts need are frivolous suits clogging up their dockets. Yes each person has a right to his or her "day in court", however it is up to them to state a claim for which they can seek compensation, and our system is very good at weeding out those who do not do so.

Ultimately this means that our system at least attempts to allow people who should be compensated to recover, and those who should not typically do not. When mistakes are made, we have the appellate system and they take their job of correcting errors very seriously. The law is in a constant state of flux, but the ultimate goals, ultimately, are a good thing.

Stay tuned, I know this is broad and vague, I'll get more specific soon.

Lets just say that. . .

I survived my first term of law school. A- in 3 classes, B in the 4th for a 3.38 gpa. not a bad start, though I guess I blew my chance at graduating with a 4.0.

In other news, we're settling in to our new home rather nicely, and I will likely post some pictures just for the hell of it sometime in the future.

be on the lookout for interesting blogs coming soon, I'm starting to get into some interesting material in class this term, so I'll be sure to post something worthwhile soon enough . . .

whew

Been some time since I've posted anything, so this will just be a short note to bring all 5 or 6 of you up to date. My wife and dogs and I drove across most of the country in 4+ days with a U-Haul filled with our belongings, and made it without any incident at all. It was actually a rather easy trip, all things considered - the dogs handled it just fine and we had great weather the whole way. We didn't even get caught in Chicago traffic (a miracle all by itself).

Now we're mostly moved in to our new home here in western Michigan, and I've had my first week of classes for the next term. So far so good, I actually feel comfortable with school at this point. we did have a bit of weather last night, very cool electrical storm, looked a bit like this:



So far I only have one grade - an A- in Torts, which I'm very happy with. Our grades aren't supposed to be posted until week 4 (or earlier), so I'll just have to wait and stress out about it until they're all posted.

That's it for now.

Finally

Last night I took my last final exam, for property 1. By the time I was finished, I felt completely brain dead. I can't even remember what I wrote for the last third of my essay. I still think I did OK on all of my exams, but boy am I glad it's over, for the first term at least.

I'll only make one observation about all of this prior to getting my grades (no matter how I feel about my exams, I won't really know until I see the results). The greatest feeling I have right now is that I actually belong here. I understand the law (so far), and understand the process. I seem to excel at certain areas, and can even hold my own in the areas I'm not so strong in. That feeling, that I am where I need to be, is confirmation for all of the sacrifices that I and others are making in order to do this.

Today I fly back to Portland for a break, and to move my wife, dogs, belongings and so forth back here to Michigan. I'll have two weeks of vacation with my son, mixed in with (I'm sure) frenetic bouts of packing and the like, and then a 5 day drive across the country in a u-haul. During that time I'm not too likely to update my blog, but stay tuned. Hopefully my next post will be about my grades (cross your fingers).

Quiet times ahead

I haven't posted much lately, and will not likely do much blogging for the next few weeks. I have 4 finals to study for as well as finishing up at least one more weeks worth of homework. Also, with my wife moving out here in Sept I am busy looking for a place to live in what little free time I do have.

so cross your fingers for me, finals in 3 weeks, the the frantic help-wife-and-dogs move across the country during the break. I'll try to pipe in if anything interesting happens, but otherwise there will likely be a hiatus for the next month or so.

Moot Court

As promised, although this is a week late, a short note about the Moot Court competition from last weekend.

It was, all told, very interesting. Two "advocates" for each side appear before a panel of judges, simulating oral argument before the US Supreme Court. They are given a State Supreme Court opinion explaining their holding for one side, and a Court of Appeals opinion reversing. In those opinions are all the relevant facts and case law cited for each side. Much like academic debate, the participants are expected to be prepared to argue both sides.

This was a fourth amendment issue involving both probable cause (to make an arrest) and reasonable suspicion (to search a nearby airplane hangar).

The first day I watched two rounds and for the most part the competitors were OK but clearly not the cream of the crop. I know it's very difficult to stand up and make arguments off the cuff, especially when questioned directly, often being interrupted in the middle of an argument. However, the second day I was able to see the quarterfinal and semifinal rounds, and the level of skill rose dramatically.

Anyway, as someone who would love to argue in front of an appellate court someday, this looks like a blast. Good speaking ability and the moxie to answer questions smoothly and not lose a beat are crucial. I won't get to do this until at least my third term, but I am looking forward to giving it a shot.

another update

I know it's been awhile again since I've posted anything. I don't have much of an excuse this time, except that I just haven't been inspired to write. It's hot as hell here, and humid too, and my air conditioner only barely works. Quite an effective way to sap the energy.

The only news here is that I'll be a bailiff this weekend at the Moot Court competition. A decent description of what moot court is, from Wikipedia, can be found here. I'll be sure to report back on Monday and let you know how that went.

Two weeks ago I took a practice exam, and will be meeting on Monday with an advisor to go over it. I haven't seen the score yet, but I will find out on Monday.

Other than that, we have just 4 more weeks of instruction until review week, then finals. 6 more weeks of the term left. Time is flying by, but it's been quite fun so far.

Cheers!

New Look

I got tired of the black on black, so I decided to lighten things up a bit. Let me know what you think.

Good Lawyer, Bad Lawyer, Part 3

Thanks to Raston for the great discussion. Here is his latest comment:

To me, there is a difference between presumed guilty and knowledge of guilt. I believe that where it should go is to find the truth. Sure, assume the person is innocent, but if he isn't it shouldn't be decided on a technicality either.

Now granted, I'm not saying that the prosecuting attorney was any less at guilt for what happened either.

I just see far too many flaws in a system that is designed to contest to win, rather than find the truth about the situation. Perhaps some of these technicalities should have 'reasonable avenues of answering' to provide better access to the truth.

Like I said before, I don't really have the answers to fix the system, but a case like that definately shows the flaws all to clearly to me.

Knowledge of guilt and presumption of guilt are effectively the same thing, once one steps in the courtroom.

Maybe it would help if you knew a couple of facts that I originally omitted because of space considerations.

First of all, the lawyer was a public defender assigned to the case. he did not have the power to decline representation.

Second, he originally advised this client to plead guilty to the assault charge, and the client refused, insisting on fighting this in court.

To that end, both the law and the lawyer must be blind to consequences, presume the charged to be innocent, and defend his client appropriately. if he had not, he would have broken his oath to society, a much larger and more important consideration than one client.

It may very well be a flaw in the system, but given the obverse, it is a flaw well worth having. the question is, which is worse: that occasionally guilty criminals go free due to incompetence of prosecutors, or that innocent people are incarcerated because lawyers are allowed to presume that people are guilty prior to trial?

I will take the former gladly any day of the week.

All lawyers seek the truth, or at least they are bound by creed to do so. Individual discrepancies aside, the law is designed to ferret out the guilty and preserve the innocent. If all parties do their job, 99% of the time justice is served. The defense attorney has vigorously defended his client, and despite that the weight of the evidence, presented properly by the prosecutor, finds the guilty guilty and justice is done.

Mistake of lawyer is NOT the same as mistake in the law or the legal process. That is the entire point. At the same time, in order to be sure that justice is properly served, all lawyers are bound to play their part. Believe me, even when a lawyer loses a case, if they defended their client properly, they have both done their job and earned a pay check.

"As a matter of law, the house is haunted"

Ahh property law. It's just about the most boring subject, but there is a compensation. Every now and then there is a case so off the wall that it almost makes up for the drudgery.

Consider Stambovky v Ackley, a NY case decided in 1991. The Stambovsky's decided to buy this big old house in upstate NY and made an offer and paid their deposit. To their surprise, they later found out that the house was infected with Poltergeists, which apparently had been a well known fact to those in the area. This fact, of course, was not disclosed to them prior to the contract. So, they sued to get out of the contract, claiming that the Ackleys had a duty to disclose this information.

The trial court did not agree, but on appeal the Court of Appeals did, and they were allowed to back out of the contract because, "As a matter of law, the House is Haunted". One of the more memorable quotations from the opinion:

While I agree with the Supeme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulant misrepresentations against the seller, plaintiff hasn't a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment.

Of course, you may have heard of this particular house. It is, in fact, the Amityville house.

Good Lawyer, Bad Lawyer revisited

I want to post an addendum to an earlier post found here regarding a story my criminal law professor told our class earlier this year. I received a few comments, and in particular I wanted to respond to this:

This is one of the reasons I'm against the system as it currently is. It isn't about justice, it is about who can afford the better attorney.

Should the victim be penalized because she couldn't afford anything but a public attorney? Should she be (or any other person prosecuting) be penalized because the other can afford a better attorney.

The problem is, that attorneys aren't there to get to the truth, they are there to contest the other. Do I have a solution to fix this problem? No. But yes, I still blame the 'good' attorney in this case, he fought to get a person he KNEW was guilty off and as a result someone died. To me that would make him an accomplice(sp) to the crime later committed, I know he isn't, but in my mind he is as much at fault for the person being dead as the criminal himself.

You do raise some good points, but I have a few responses as well.

First of all, the victim in a criminal case does not "hire" an attorney. Criminal law cases are never about which side can "afford" the better lawyer, although often there is an inequality among defense attorneys. That, however, means that some defendants are better represented than others. The victim is, in a sense, repesented by the state, and that means the prosecuting attorney. In the story below, the prosecutor messed up but it had nothing to do with whether the victim could afford a good lawyer or not.

But to your more salient point, that attorneys are less interested in the truth than they are in winning. While that is true from a superficial standpoint, you are missing a very important ingredient in our legal system. Our system of criminal justice really can be reduced to two basic principles: that everyone is presumed innocent until proven guilty (the burden to do so is on the government), and that every person deserves their day in court (with a vigorous defense at their side).

There is a code of ethics that governs the legal profession, and it's not too dissimilar to that governing medical doctors. Among many other things, lawyers are required to vigorously represent their client, to the best of their ability, and to use every legal tool at their disposal to do so. This is intended to guarantee that those above two principles are strictly adhered to. If the defense attorney in this example had simply let his client be convicted, he could be sued for malpractice (and probably lose).

You see, defense attorneys have perhaps one of the most thankless jobs in the legal profession. They are required to defend those who are presumed by many to be guilty. Quite often they are guilty, in fact, but many times they aren't, and our legal system demands that they be presumed innocent, and have their day in court. This means that, in order to maintain its integrity, the lawyer drop pretenses and defend their client as vigorously as the law allows, and sometimes that means guilty people go free. It's the price we pay to retain our freedoms.

Remember, it was not the defense attorney's fault that this man was not convicted of criminal assault. His job was to defend his client, which he did. It was the prosecutor's job to prove guilt, not the defense lawyer's job to admit guilt. That man pled not guilty; it was his choice to do so. I believe you are misplacing guilt here. The guilty party is the man who shot the woman. The burden to keep that man off the street was on the prosecutor, and he failed to do so. As hard as it is to swallow, the only persons here who did their jobs were the defense lawyer and the judge (remember, the Judge agreed with Good Lawyer's reasoning, and they don't like letting criminals go free any more than you or I do).

Remember too that sometimes an attorney does not get to choose his client. We have, in our system, a right to an attorney. Sometimes that means that a lawyer is appointed to defend a certain client (typically a lawyer does have some discretion as to who they choose to represent). That lawyer STILL must defend that person as vigorously as if they were getting paid for it. The code of ethics rules the bar, and lawyers who fail to follow it end up disbarred.

In fact, as an aside, in most states it's much more difficult to pass the "character and fitness" portion of the bar exam than the substantive test. It's very important to the profession, and I like this example because it is such a great illustration of just this issue.

So, it's been awhile

I've been pretty busy lately so I haven't had either the opportunity or the inspiration to post anything. My apologies to the 5 of you reading, so here is a quick update.

My wife came to visit last weekend and we went to Lake Michigan to check out the big lake. Boy is that a big lake. It looks like the ocean, except the water is fresh and there aren't any tides to speak of. It gets pretty windy though so there are waves. It's way bigger than any lake on the west coast, that's for sure. I'll try to post some pictures once the wife emails them to me. All in all it was great to spend a few days with her, as it's been almost two months since we've seen each other. Two more months to go and then I'll have a 3 week break. Yay!

I had 3 midterms last week, in torts, contracts, and criminal law. I have the results back for two - 16/20 in torts (the average was 14), and 14/20 in contracts (the average there was 11), and I'm still waiting for my crim results. I'm happy in general, although there were a couple of questions on the contracts test that I should have gotten. Either way, it's ony 10% of my grade, and I didn't do anything to hurt myself.

Not much other news, I'll post something more substantive soon.

Hell, Michigan

just in time for 6-6-06!

http://www.hell2u.com/

Multiple Choice

In honor of my midterms, coming up this week, I thought I'd post an example of a multiple choice question. Nobody has to try and answer it, I'm sure very few of you have even heard of the rule against perpetuities, but I did want to illustrate how complex these questions are. I have midterms in Torts, Contracts and Criminal Law, so it seems fitting that I post a Property question here:

Grande died leaving a will which, among others, contained the following clause:

CLAUSE X - I hereby devise my realty located on Main Avenue to my wife for life, remainder to those of my children who achieve the age of twenty-one years. If any child of mine shall predecease me, or if any child of mine shall survive me but shall die before achieving the age of twenty-one years, that child's share shall be distributed equally among any of that child's children who shall marry, but if such child of mine shall die without issue, then his or her share shall be distributed among my children who achieve the age of twenty-one years.

at the time of grande's death, he had no grandchildren, and was survived by three children: Alice who was eighteen years of age, Burton who was nineteen years of age, and Carrie who was twenty-two years of age. Two years after Grande's death, Alice gave birth to a child whom she named Gretchen. One week after Gretchen's birth, Alice died at the age of twenty. Burton was twenty-one years of age, and Carrie was twenty-four.

If Gretchen marries at the age of eighteen, will she be entitled to share the Main Avenue property?

A. Yes, because her interest vested within 21 years after the death of Grande.

B. Yes, because her interest vested within 21 years after the death of Alice.

C. No, because at the time of Grande's death it was possible that Gretchen's interest would not vest until more than 21 years after the deaths of Alice, Burton, and Carrie.

D. No, because at the time of Alice's death it was possible that a grandchild would subsequently be born who would marry more than 21 years after the deaths of ALice, Burton and Carrie.

My midterms consist of 20 questions, 40 minutes. that means 2 minutes per question, like the one above. now. clearly the rule against perpetuities has something to do with 21 years, right? so what is this question? it's a logic problem, a game. In fact, most of property law (and much of contract law) amounts to a logic game, which is actually good because once I realized that it became much easier to solve problems like this. know the rules, apply them to the facts. break up the problem into smaller parts, and the question becomes much easier.

Incidentally, the answer is C. I don't have nearly enough space to explain why though. Just bear in mind that the rule against perpetuities is concerned with possibilities at the time the testator (guy who draws the will) dies. that means that Gretchen was not even alive at that time, so not a possibility yet. beyond that I will not go because I'm not sure I can explain it (although I think I am beginning to understand it, at least I am getting problems like this one correct).

Doesn't this look fun?

Beat up by the Prof, v1.1

also known as: Better him than me.

Fortunately this tale does not involve me, but I found it worthy of a post anyway. A couple notes first. When a student is assailed by a professor, and the student struggles with the answer, two things always happen. first, the other students will never laugh, will always feel sympathy, and generally feel a sense of 'solidarity' with the unfortunate victim. Second, when possible one or more students will come to that person's aid at the earliest opportunity (usually it happens when the prof turns from that student and glances wonderingly around the class). we have all had minor assailments and have all, consequently, come to each other's defense when we could. it's the silent knowledge that we're all in this together, and we only have each other to rely on.

this particular tale is the exception. this unfortunate student (we'll call him Bob) brought this on himself. no, nobody laughed at him, or made disparaging comments after class, or anything else. but when the opportunity presented itself, nobody came to his aid either. he was on his own.

this happened in Torts. my prof for that class is as sharp as they come, and despite being unflinchingly nice, is still very tough and is adept at asking difficult, probing questions. we were discussing self defense. there is a principle we will call 'excessive force', which means that if you're defending yourself against an attacker, you are only "privileged" to use equal (reasonably speaking) force that your assailant is using against you. if someone is about to punch you, for example, you're not allowed to take out a gun and shoot him. that would be excessive. the standard used is that one may use deadly force in self defense if he is threated by deadly force OR the threat of serious bodily injury.

Bob wanted to try and test these boundaries, so he asked a question:

Bob: ok suppose some guy is holding my arm, and he has a big knife and is about to cut my hand off, can I with my free hand take out a gun and shoot him?

[at this point the class is dumbfounded. where did he come up with this crazy scenario? we all are thinking "boy Bob, you watch too many horror flicks"]

Prof: [equally dumbfounded] so where did you come up with this hypothetical?

Bob: well I'm just trying to figure out when it's okay to shoot someone in self defense.

Prof: when you're threatened with deadly force or serious bodily harm. I would think this unlikely scenario would qualify as pretty serious. [she then tries to move on - turning back to the whiteboard and picking up a market]

Bob: but this guy isn't trying to kill me. maybe he's a mobster trying to intimidate me.

Prof: what about this hypothetical do you find "not serious"?

Bob: well he's not using a gun. he's using a knife.

[Prof then looks to the rest of the class, but we're deadly silent, not about to get involved in this one. about 30 seconds pass]

Prof: [clearly trying to save his ass by now] so in your story, you are being intimidated by the mob, and this wiseguy is about to cut off your hand, and you happen to have both a free hand and a gun available, and you're wondering if it's okay for you to shoot this criminal, right?

Bob: yes, I'm wondering if I'd be liable if he were to sue me.

Prof: [clearly tired of this by now, but trying to be nice] Bob, I'd think you would have much bigger problems than a law suit. What is it about this story that confuses you?

Bob: it's the knife vs gun thing.

Prof: are you saying that cutting off your hand wouldn't be a serious bodily injury?

Bob: well it's not deadly [at this point the entire class shifts itself in our seats]

Prof: [decides to end this] it doesn't have to be expressly deadly, it just has to be serious. but one can certainly bleed to death when a major artery is cut. nevertheless that wouldn't matter. No. you would not be liable for battery or anything else in tort. you might go to jail for consorting with the mob, the wiseguy will probably go to jail too, and you two would be free to work out your differences behind bars. now lets move on.

nobody said a word as the prof moved on and lectured for a few more minutes. this was near the end of class and we were soon released. nobody talked to Bob.

the next day, before property (which Bob is not taking this term) I was talking with another student (whom I've become friends with by the way) and asked him what he though about the exchange. he said "hey Bob was on his own. he didn't need to ask that question. you (referring to me of course) are always participating in class, but you never bring wrath upon yourself, you just ask questions or respond when the prof asks questions. Bob does the same thing but he asks outrageous questions and gets what he gets. By the way, we all appreciate you speaking up so much in class, it takes the heat off of us."

I'm sure the latter will come as a big surprise to most of you.

Update

It's been a week since I've posted anything, so I thought I'd post a brief update. I have midterms in 3 of my classes in week 6 (we just finished week 4), so at the moment I'm spending my time doing extra work studying for the exams. they're all the same - 20 multiple choice questions worth 10% of the grade. Nothing too outrageous. I've taken practice exams for two of the classes (my torts prof hasn't provided any practice tests) and have done just fine, so I'm not overly worried, but I am not taking anything for granted. This is also a good time to compile what I've learned thus far in some sort of manageable form so I can study for the final later.

this manageable form is typically an outline. I have about 10 pages for property (no midterm, but the class is pretty tough), about 9 for Crim, 7 for torts and I've barely started my contracts outline. guess what I'll be doing this weekend? hehe. of course I got 9 out of 10 on the contracts practice test (which was apparently harder than the actual midterm), and the one I missed was VERY debatable (even the TA got the same answer I did) so I certainly get the material, I just need to finish my outline so I don't forget all this stuff by the end of the term.

The only other interesting thing going on is that we're having elections in two weeks for our class' student bar association representative. it's basically student government for law school. I haven't decided yet whether or not I'll run, but a few people have told me that I should, so I may. I'll let you know later, nominations have to be in by next Wednesday. It's a pretty small time committment, and for us first term students there's no committment the first term (the meetings are during our contracts class). It is a good networking opportunity, and networking = jobs, so I am considering it.

Nothing much else is happening. I'm spending about 45 hours a week outside of class studying, so this is more than a full time job, but I'm enjoying it so far and keeping up just fine.

That's it for now. I'll try to post something more interesting this weekend.

Felony Murder - what do you think?

I am writing this to solicit opinions from the various and sundry out there in the proverbial peanut gallery. We are currently studying homicide in Criminal Law, and I have been confronted with a quandry, it regards the crime of Felony Murder.

I am sure all of you know (perhaps from watching Law & Order) that homicide is the killing of another. There are many different kinds of homicide, depending on the degree of culpability of the killer, and the most obvious degree imposed is the difference between Murder and Manslaughter. Murder requires intent, at varying degrees, and Manslaughter does not. That there are differing degrees of intent that one can have, we also have different degrees of murder, IE 1st degree, 2nd degree, 3rd degree murder. The higher the degree, the greater the intent required. This is all relatively self evident (and admittedly simplified). the reasons for the distinctions are obvious - it goes to punishment (we punish more severe crimes more severely).

There is one special exception to Murder: Felony murder is when the felon kills someone in the course of committing another, unrelated felony. That means that if you're robbing a bank, your intent is only to rob the bank. but if you kill someone (accidentally, inadvertently, watever) during the commission of the felony, you are guilty of felony murder. The affect of this is to remove the requirement for specific intent (in other words, the commission of the underlying felony, eg robbing the bank, replaces the requirement to otherwise prove intent to kill).

Some states call felony murder "1st degree murder". others call it "2nd degree murder". 3 states have abolished the rule altogether, and a few others have greatly limited it. I'd be happy to give a more detailed history later if you want, but for now, I want to know what you think of the general rule.

a good illustration of this is the following (this is an actual case, much abbreviated of course):

a man commits a burglary. while fleeing from the scene, he causes a car accident killing the driver of the other car. he's convicted of felony murder.

so tell me, is this rule just? is it fair? remember, the guy above could still be convicted of a lesser homicide crime, and certainly of burglary.

Good Lawyer, Bad Lawyer

Many people don't like lawyers. The old joke is "everyone hates lawyers until they need one". One of the many reasons why people don't like lawyers is the fact that sometimes a lawyer must defend a guilty person, and sometimes that person is acquitted for whatever crime they are accused (and presumably guilty) of. I would posit, however, that if a good lawyer defends a guilty person, and that person goes free, it is not the good lawyer's fault, but instead the bad lawyer is to blame (the one charged, presumably, with prosecuting the crime). In other words, the law protects the innocent and prosecutes the guilty, and when justice isn't served it's because some lawyer made a mistake.

consider the following example:

A man assaults a woman with a gun. Assume that there are no problems with search and seizure, that there are no "technicalities" which would lead to an acquittal. The good lawyer is defending the man, the bad lawyer is the prosecutor. The man is charged with criminal assault.

The burden of proof is on the prosecutor to prove that the man is guilty of all elements of the crime. For assault, he must prove that the man was the person who indeed pointed the gun, that he intended to point the gun, and that he intended to cause her to have fear. The prosecutor must prove all of these things in order to prove assault. The defense need only prove one element is missing...

so what do they do?

Bad Lawyer: bad lawyer only has one witness: the victim... he questions her extensively, proving that the man indeed pointed the gun, and that he made threatening remarks proving that he intended to assault her. he finishes.

Good Lawyer: I have no questions your honor, and I move for summary judgement because the State has failed to make a prima facia case [summary judgement is when the judge decides that there is not enough evidence for the jury to decide, so the judge decides for them; a prima facia case is the burden on the prosecution to meet all of the 'elements' of the crime in their proof]

Judge: on what evidence do you make this motion?

Good Lawyer: the prosecution did not prove that the victim was afraid.

Judge: [looks at the transcript of her testimony] you're right. motion granted, case dismissed.

so the man goes free. the good lawyer did his job, the bad lawyer didn't, and the criminal goes free. two days later the man kills the woman. is it the fault of the good lawyer for doing his job and "getting his client off"? no. It's the bad lawyer's fault for not knowing the law and proving his case.

In other news . . .

Taking a break from criminal law, I decided to watch some local news.

[just a bit of background, I have been told by a few people that western Michigan is the bible belt of the midwest, and I've seen no evidence to the contrary. some of the biggest and most impressive churches I've ever seen are around here]

one of the lead stories just killed me tonight. they led off with this crazy graphic of "666" which first made me laugh, then piqued my curiosity. you see, June 6 is coming up, and of course it's 2006, so the date will be 6-6-6. the story was about pregnant women who are due around that date, and the things they're doing to try as hard as possible not to give birth that day. one woman interviewed literally said that she didn't want to give birth to the son of satan, and she was "praying hard" to avoid that.

anyway, that's it. Time to get back to criminal law, I have to brief a case on physician assisted suicide ;)

Vocabulary

One of my profs, on the first day of class, made the following comment (paraphrased, of course): "One good thing about law school is, when you go home for the holidays, you can impress uncle Joe with all of the new big words you've learned". So far we've learned a few big words, most of them in Property or Criminal Law (and no I'm not talking about the words you might hear on Law & Order like "motion"). here are a few:

terra nullius - the land of no-one (or the land of no europeans, at least)
ferae naturae - wild animals. yes this is important.
trover - the value of a thing (personal property)
ratione sole - means 'from the soil' or something close, but it's applied whe something runs across your property. literally.
trespass - aha you say, you know this one! think again. before it meant "walking on someone else's property", it was much broader, and is occasionally used in that meaning. it originally meant "any wrongful act, or any infringement of the rule of right". the definition of larceny, for example, is "trespassory taking and carrying off of another's personal property with the intent to permanently deprive that person of possession." in that sense, tresspass means "wrongful".
mens rea - ok maybe you have heard this on law and order. it means "the criminal mind". but it really sounds cool, right?
actus reus - goes with mens rea, it means "the criminal act". gotta have both to have a crime.
Burglary - at common law (in the olden days), burglary was defined as only at night. what? the term for burglary during the day was "Hamsoken". My crim law prof likes to tell stories.

that's it for now.

Beat up by the prof, v1.0

It happens to every law student. She or he is called upon to recite a case, or answer a hypothetical question, or answer a direct question, and proceeds to stumble through the answer, enduring a barrage of agressively asked follow up questions from the prof as she or he is slowly reduced to rubble. Oh, sure, he (read: me) was prepared, read the material, made notes on the material, thought he understood the material well. He came to class confident, ready, and even eager to answer any question. He had even thought of some controversial notions about the material (or so he thought).

This happened, though in a rather tame way (in retrospect) to me yesterday in Criminal Law. We had an enormous amount of reading to do for this class, about twice as much as my other classes this week. The reading included 11 cases and 2 articles (more background info as this was the first class). It's clear from the syllabus that the prof is really focused on reading cases, so I read the articles quickly, made a few cursory notes, and moved on to the cases.

He called on me to answer questions regarding one of the articles. This particular article was a philosophical discussion about why we punish criminals in our society. There was some discussion of justice, and he had a few clear principles that he laid out. I made some notes on justice, his four principles, and moved on.

So the prof turns to the white board and writes two words: "Utilitarianism" and "Retributivism". Neither term is discussed explicitly in this article. He then turns to me and the following exchange (paraphrased) results:

Prof: Did you read the Richards article?

Me: Yes

Prof: Good. Tell me about utilitarianism.

Me: Um. [at this point I'm frantically scanning my notes looking for utilitarianism, or anything that might mean utilitarianism. My hands are starting to sweat. did I really read this article? Do I even know what I'm talking about? all I can think is "oh shit", and I proceed to mumble:] well the meting out of justice is meant to serve the needs of everyone, the greater good [I then cringe, as I've just stated the 7th grade definition of utilitarianism].

Prof: Well you've just brought up a standard, pedestrian, use of the term, but what does Richards think of utilitarianism?

Me: Well he thinks that punishment needs to serve both the needs of society as a whole, and the needs of the individual being punished, by protecting his rights [there was a whole section of his article talking about equality in punishment, and that everyone deserves their day in court, blah blah blah, I thought I was on to something.]

Prof: Here, let me help you [he then turns to the board and writes the word "deterrence" on the board].

Me: [OK now I get it and give a decent answer regarding general and speific deterrence, I won't bore you with that here, but I seem to get this part right. don't worry, it gets worse.]

Prof: Good. Now, what about Retributivism?

Me: [clearly nobody in the room gets it either, they're all looking at me with that "better you than me" expression, so I say:] Revenge. Retribution. Punishment serves these purposes.

Prof: [laughs] Yes yes, it makes us feel better, right? think Kant.

Me: I Kant [Oh god I just told the oldest philosophy joke in the book. nobody laughs except the prof, who may have actually found it funny]. I suppose I am not sure what you're looking for here. I saw this article balancing the needs of the individual with the needs of the state. What did I miss?

Prof: I see. what does hammurabi say about punishment?

Me: [here is one I know, miraculously] an eye for an eye, a tooth for a tooth.

Prof: Right. is there anything like that in our legal system today?

Me: Kindof. [now I'm starting to think about one of our cases] we believe that our punishment should fit the crime, though not so literal as hammurabi did.

Prof: yes. now. what does retributive suggest?

Me: I, uh, [I really see nothing in this article about this. I'm trying to answer the prof's question as it relates to the article. I'm completely lost.] I suppose I don't know the answer to that question. I didn't see anything in Richards beyond the balancing ideal.

That's enough I suppose. It went on for a few more minutes, he trying to prod me into the right answer, me not getting it, and finally he let me off the hook and proceeded to explain. Now this exchange was quite tame, especially since I did have a few things to say that he wanted said, but that doesn't change the feeling that it left. I was ready to discuss any case, I understood them all, and in the final assessment my notes pretty much matched his notions as the class went on as far as the cases went. I was taken off my guard being asked about an article I didn't care about. During break more than one student came up to me and said something like "boy I'm glad it wasnt me discussing that article." and I even got a "good job" from one student who apparently admired my courage or something.

welcome to law school, eh?

Some First Week Observations

I'm almost finished with my first week (I still have Criminal Law today), and have a few observations about school so far. . . A little background first.

The school I attend has flexible scheduling. they require a minimum of 6 credits (2 classes) and a max of 15 (5 classes). this is intended to allow people to work, have a life, whatever, and still go to law school. I actually find this quite reasonable, though if you want to finish in the normal 3 years, you have to take at least 12 credits a term. I'm taking 12 credits this term, and am considering increasing my load in the future to speed things up. This school also allows students to 'begin' school during any of the 3 terms (semesters) during the year. All of this has the effect of fragmenting the student body a bit, as everyone is on a slightly different schedule, and may have started at a different time. One thing is constant though - everyone takes Torts and Contracts first (and since we all have to take at least two classes, everyone in my Torts and Contracts class necessarily started the same time I did). this brings me to my point, that the "cadre" which I am part of to start this term consists of 14 people. Nice and small. We've actually gotten to know each other a bit in this first week, and they are going to be part of my observations below.... on we go!

ONE: People who work during school
I can certainly understand the need to work, we all have bills to pay, etc. but so far law school has been a full time job for me. I've spent about 8 hours of preparation time for each 3 hour class. lets see, 4 classes, 11 hours per class, that's a minimum of 44 hours. and that doesn't count the work I've done compiling my notes, updating my outline, etc. after class. It's Thursday, and so far I've "worked" about 45 hours this week, and I still have class tonight, outlining tomorrow, and an intro (no credit) class for two hours on Fridays. I also have work to do this weekend for next week, a study group meeting on Sunday, and so on and so forth. One of my co-students is a police officer taking six credits. He ALSO lives over 3 hours away and COMMUTES! sure, he's taking half of my load, but that's still about 30 hours a week, by my math, outside of class AND commuting! again, i understand the need to work, but to me this degree is too important to jeopardize with the lack of time, lack of sleep, lack of "a life", etc that Must plague those who work. I'm not knocking it, I just don't see how it can be effectively done.

NOW most of my fellow students are taking 6 credits and working. Only 5 of us are taking at least 12 credits (2 are taking 15), and I think only one of that group is working, and if I remember correctly he's doing so on a contract (piecemeal) basis. Still, it would be hard for someone taking even 6 credits to do so while working. My hats are off to them.

TWO: the law is arcane
one of the cases we read for Property was from 1707 in England. It involved duck ponds (ask if interested, it's kindof a funny case). All i have to say on that at this point is those guys who wrote opinions back then were obsessed with latin.

THREE: remember the golden rule
he (usually a he) who has the gold, makes the rules. this is most definitely true of law. Now i must say that, for the most part, our laws are passed with the intent of meting out justice. but sometimes justice flies in the face of "what we want to accomplish" and that's when we start to pull law out of our asses, literally. this was made no more plain than when we read, again in Property, the case Johnson v M'Intosh, another arcane case from 1823 written by our venerable-i-was-a-founder-therefore-i-get-to-make-the-law-as-i-see-fit chief justice John Marshall (best known for Marbury v Madison) . In this case, one of the dudes bought a piece of land in the territory of Illinois from an indian tribe. he even produced testimony from the chiefs proving they had sold him the land. the other dude claimed he owned the land by right of title granted by the king of england in 1773 or something, and proved it by providing evidence of this grant. on a side note, these guys were friends who intended to develop the land together, and "created" this discrepancy to make sure there were no issues of title to the land. nevertheless, the conflict arose and it went to the supreme court. to make a long story short, the guy who had title from england won.

you see, there's this principle in Property law that tends to permeate everything. it's called "first in time" and it basically means just what it sounds like - the first to possess a thing owns it. the problem in this case is obvious. the british were not the first ones on the land in Illinois - the Native Americans were. If we were to hold that rule sacred, then the Natives should have been allowed to "sell" the land to whomever they please. but you see, that would call into question all of the land that we had "claimed" for, well, hundreds of years. OOPS. so Marshall made this wacky distinction in this case. He said that the British (and by extension, after the revolution, the US) owned title to the land, but the Indians had "occupancy rights" because they "were there". this also included the exclusive (!!!) right of the US government to expel the indians whenever they decided that they needed the land; and the exclusive right to sell the land. oh, and why didnt the indians have 'first in time' rights to the land? well there are a couple reasons. first, they're savages (they kill us when we invade them!); second, they're heathens (they're not christians!), and third they don't use the land (they just roam, they don't build things or farm the land, or "improve" it). basically, he rationalized why England had first rights (incidentally, he kinda took the US off the hook for this by blaming the colonial powers here... what a wuss!) to title to the property because England was the first European power to discover the land...

don't we just love made up law that suit our purposes? of course, who today would give up title to thier home to the [insert local native tribe name here] Indians because they were first in time? i didn't think so.

WELL that's it for now. I'll update this weekend after (I am sure) an illuminating Crim and Intro class. Hopefully I can work out a decent study group, I think I'll need it.

I made it

It's been awhile since i've posted, but that is mostly because of my lack of internet than anything else. I arrived here last Friday (the 21st) and have been setting up shop ever since. the trip was mostly uneventful, with the one exception taking place in eastern montana/western north dakota. it was a blizzard and in minutes, while driving, i was in a complete white out. very scary. fortunately for me there was a hotel within a couple miles of hitting this spate of bad weather, so i was able to pull off for the night. the next morning i struck out again, and within about 45 minutes it was raining instead of snowing, and another hour of driving led to sunshine. the rest of the trip was easy.

i start school next monday (may 1), and i hope that i'm prepared enough. i will post my impressions of early classes as they go. My first class on monday is Torts I. stay tuned!

On the Road

today i leave for school. it's about a 2400 mile drive, i plan on taking a week. it's odd, the notion of all i have fitting in my car, and the cargo carrier on top. about 85 cubic feet if my math is correct (although i was never great at math). sure i'll get some cheap used furniture once i'm there, but in the end my existence, starting today, will be very minimal.

it's a bit surreal so far. it hasn't really hit me quite yet. my wife and i will be apart for more than a few days for the first time in nearly 4 years. my son and i will be the furthest apart we've ever been. i won't see my dogs for 4 months, will they even remember me? all of this is for me. it's rather humbling, when i think about it.

anyway, enough of the existential blathering. off i go. it will be at least a week before i am able to post again, possibly more, depending on internet availability. no matter, i'll post an update as soon as i can. bon voyage to me!

Why Law School #2

it occurs to me that the entire diatribe below fails to answer the question i posed at the top. i suppose that means i'll make a great lawyer, but hey.

the short, simple answer is this: law school actually sounds like fun to me. crazy? perhaps. i enjoy the notion of the intellectual back and forth that goes on in a good lawyer's mind. i like the challenge of defending untenable positions (or people). i like the nitpicking approach to legal issues that law school requires. i like outlining, briefing, detailed case analysis, and i'm fascinated by the legal issues that are put forth in every case. i have been reading a book about contract law (something that, on face, seems rather boring), and am finding myself fascinated by the real world issues presented. i like the stories that lead to cases, that further lead to decisions, that further set legal precedent. i love the malleability of common law, and am finding myself in awe of our legal system.

in short, i'm a fan of the law, and i want to be a player in the legal game. finance is, well, finite. it's limited. sure economies ebb and flow, but ultimately it's the same rules to the same game played over and over again. comparing it to law is like comparing a game of war (the card game) to 3-D chess. the complexities, the intricacies, and the pure, reductionist, detailed analysis of legal thinking is what i'm after, and i believe i'll get it in spades.

that's it. i have been reading plenty on law, legal theory, how to prepare for law school, etc etc, and all of it excites me (perhaps more on that part later). today i received one of my textbooks (i ordered them through the mail), and it contains the UCC (uniform commercial code) and part of the restatement on contracts (if you don't know, it would take me awhile to explain what that is). i got all excited. maybe i'm nuts but hey, that's why i'm doing this in the first place, right?

Why Law School?

one of the questions that i have been tackling for the past few years, is why, in my late thirties, am i now deciding to go to law school? it's a good question; after all, i have had a fairly successful career up to this point (in finance, if you must know), i am married, have a son (from a previous relationship), a home, dogs, etc. i have all the trappings of life that suggest that i'm moving forward, not backward. i'm not stagnating, at least not superficially.

but that's just it. am i happy? in a nutshell, do i enjoy my job? i spend 40 odd hours a week working, am i satisfied? the short answer is no, i'm not. in fact, i hate it. it's mind numbing, intellectually bankrupt work. i am constantly fighting just to maintain a good attitude about work, and have been for the past few years. if i stay much longer in this business i'm going to either get really depressed or go nuts (or both). so what do i do?

when i was fresh out of college, 1992 or so, i took the LSAT and scored very high. i probably got lucky, and maybe there was even a bit of skill too. nevertheless, i had a great opportunity to go to just about any law school. my undergrad transcript isn't all that impressive, but my test scores more than made up for that, so i applied to schools all over the country. i figured i'd be good at law school, after all i had been good at intellectual games for some time now (i was involved in academic debate for ten years, and pretty good at it too). it seemed law school was the next logical step, but i had no idea why. i got accepted at some, turned down by others. why didn't i go?

honestly the simple answer is that i wasn't ready. i was obstinate about where i might go to school, and one school in particular caught my attention - Northwestern University. they turned me down, and i got pissed and even appealed the decision (to no avail). i really had no idea what i wanted to study and was attracted to NWU because i thought (who knows if i was actually right) that i could just study philosophy and con-law there and teach. probably true but i had no evidence that it would be better there than any of the schools i did get in. it was almost as if i used NWU as a lynchpin excuse to NOT go to law school. i didn't really think it at the time, but in retrospect i probably made the right decision to wait.

so i slogged through the real world, and finally ended up in a growth industry and built, like i said, a relatively successfull career. and now, after almost 9 mind numbing years in finance i have finally decided that i want more, that i miss the game that intellectual stimulating study provides. i don't know what i'll do with my JD but i do know that whatever i decide, at least i will be happy doing it.

it's taken me two years to prepare for this. i have an entire life to upend, and it's much more work than the typical "fresh out of college" student who has very few ties, and can just head off to school (provided they can finance it). more on that later, but this week is the culmination of years of waiting followed by the past two years planning and preparing. in four days i'll be leaving. it doesn't quite seem real, but i'm sure it will soon enough.

Greetings

welcome to my blog. i'm heading off to law school as an old man, at least by law school standards, and thought it would be fun to record my thoughts and experiences for anyone to read. or nobody. i don't really mind either way as i'm doing this for me, to blow off steam, to speak my mind, or to blather on incessantly about various nonsensical items that may or may not invade my brain. as you can see i don't much care about capitalization, you'll have to live with that.

as i write i am preparing to drive halfway across the country to a new state, new city, and plant relatively shallow roots while i attend law school. school for me starts in may, and if you are discerning you might figure out where i'm going to school based on just that. i'll leave that for your clever mind to figure out. i'll say that i'm not going to a prestige school, and about that i couldn't care less. i'm not going to law school for prestige anyway, but other, more ambiguous reasons. i suppose i'll get more into those later as this little blog grows. suffice it to say that after fifteen years or so in the real world, it will be a huge relief and grand adventure to plunge back into the world of academia. unlike many, i am looking forward to law school; i intend to enjoy the game and play it well. i plan on making the most of my second career (did i really have a career before this? WHOA!), wherever this adventure takes me.

so. i can be crass at times, boring at times, i can fail at attempts at humor. but i will always be me, so if you like, read on. if you don't, move on. either way, welcome aboard. i'm very excited to begin, and i'll do my best to keep updating this weblog as much as i can.