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.