This will be a short post. I came across a very worthwhile article written by Gerry Spence, a famous lawyer who represented Karen Silkwood, Imelda Marcos, and the Ruby Ridge boys, among others.
http://www.gerryspence.com/killalllawyers.pdf
The article is an argument in defense of trial lawyers who represent plaintiffs and criminal defendants; that the public ire toward them is wholly misplaced, and the media blitz against them is wrong. He makes the argument much better than I, so I simply urge you to read it and come to your own conclusions. It's relatively long (42 pages), but well worth the read.
Monday, April 02, 2007
Saturday, March 10, 2007
Moot
Last week I competed in the first year moot court competition. It's part of the criminal procedure class, so our problem naturally centered around a search and seizure issue. My partner and I were respondents, and in this case we represented the defendant. I have to say that we both had a great time, strange as that may seem.
Moot court is a competition that is, essentially, a simulation of oral arguments in front of the supreme court. At that point, there has already been a trial and at least one (and sometimes more than one) appeal. Each side (petitioner and respondent) has two "lawyers", each person gives a ten minute "speech" in front of the court. But it's far from a speech because the judges are constantly asking questions. My partner and I each prepared about ten minutes worth of material, and each of us maybe got through 1 or 2 minutes. The rest of the time we were answering questions from the judging panel. There is no interaction between the two competing teams, the interaction is with the court.
Good judges will ask pertinent questions, meaning I actually did get to present most of my argument (to the good panels). Bad judges will ask ridiculous questions, and sometimes even be rude. Those are really the hardest ones to deal with because the entire time I had to be deferential to the court, and still respond quickly (even curtly) to irrelevant questions. I have a friend (an old debater - you know who you are if you're reading this) who would go nuts watching the "yes your honor" and "no your honor" in response to some of the questions I was getting. For those who have done any academic debate, moot court is like a ten minute cross examination period without the combat - that is, the judges ALWAYS have the upper hand, and the lawyer has to be crafty in response. I must say, in retrospect, that it was far more fun than debate because it's so much more challenging.
We did well. Out of 30+ teams my partner and I made the quarterfinals, and were both pre-selected for early entry into the moot court program. That's essentially step-one if I want to compete on the national team (which, of course, I do). I'll be taking the class next term, so perhaps there will be more to blog about after all (heh heh).
So. . . stay tuned . . .
Moot court is a competition that is, essentially, a simulation of oral arguments in front of the supreme court. At that point, there has already been a trial and at least one (and sometimes more than one) appeal. Each side (petitioner and respondent) has two "lawyers", each person gives a ten minute "speech" in front of the court. But it's far from a speech because the judges are constantly asking questions. My partner and I each prepared about ten minutes worth of material, and each of us maybe got through 1 or 2 minutes. The rest of the time we were answering questions from the judging panel. There is no interaction between the two competing teams, the interaction is with the court.
Good judges will ask pertinent questions, meaning I actually did get to present most of my argument (to the good panels). Bad judges will ask ridiculous questions, and sometimes even be rude. Those are really the hardest ones to deal with because the entire time I had to be deferential to the court, and still respond quickly (even curtly) to irrelevant questions. I have a friend (an old debater - you know who you are if you're reading this) who would go nuts watching the "yes your honor" and "no your honor" in response to some of the questions I was getting. For those who have done any academic debate, moot court is like a ten minute cross examination period without the combat - that is, the judges ALWAYS have the upper hand, and the lawyer has to be crafty in response. I must say, in retrospect, that it was far more fun than debate because it's so much more challenging.
We did well. Out of 30+ teams my partner and I made the quarterfinals, and were both pre-selected for early entry into the moot court program. That's essentially step-one if I want to compete on the national team (which, of course, I do). I'll be taking the class next term, so perhaps there will be more to blog about after all (heh heh).
So. . . stay tuned . . .
Wednesday, February 07, 2007
Yikes!
It has been too long since I updated this. I will make an effort to be more attentive and post more articles. Stay tuned!
Tuesday, October 17, 2006
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.
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.
Tuesday, September 19, 2006
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 . . .
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 . . .
Saturday, September 09, 2006
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.
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.
Saturday, August 12, 2006
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).
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).
Sunday, July 23, 2006
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.
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.
Saturday, July 15, 2006
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.
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.
Friday, July 07, 2006
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!
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!
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