Thursday, June 29, 2006

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.

Monday, June 26, 2006

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.

Friday, June 23, 2006

"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.

Thursday, June 15, 2006

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.

Wednesday, June 14, 2006

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.

Monday, June 05, 2006

Hell, Michigan

just in time for 6-6-06!

Sunday, June 04, 2006

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?