Blog Ipsa Loquitur

A: “Man, Constitutional Law is seriously the third time I’ve had to read Lawrence v. Texas [wiki] [cornell]”

B: “Third time?  What was the third?

A: “Criminal Law, Family Law, and…”

B: “Your self defense?”

Even the “dude, you’re gay” jokes in law school are complicated.

Filed on under A Day in the Life

I don’t graduate until May of 2010, so the term “almost legally” is quite apt for what I’m doing here. However, when I graduate and pass the bar exam, I’ll have to come up with another name for the site. The most logical one, of course, is to move from “almost” to “barely” legally. It only makes sense.

But Hillary Duff is once again trying to upstage me: I will not stand for this duffspiracy.

Filed on under The News

You’ve probably heard the crackerjack lawyers on Law and Order stand up and yell “objection, your honor!” when their opponents say or do something untoward. If the judge remembered to wear her mind reading helmet, or it’s plainly obvious that the other attorney is engaging in shenanigans, the judge can sustain the objection without further explanation. However, most of the time, you’re going to need to provide a reason for your objection.

One of the grounds for an objection is irrelevance: you can object to evidence that isn’t relevant to an issue in the case. Filibustering is for legislation, not litigation - there are rules that prevent attorneys from dragging in irrelevant facts to confuse juries.

One of the biggest treasure troves of irrelevant evidence is character evidence: evidence that has nothing to do with the facts of the case, but instead serves to poison the credibility or reputation of a witness or the defendant. You can read the relatively simple rules for excluding character evidence for defendants or witnesses, if you like. They’re not really important for the purposes of this discussion.

This discussion is about a rather odd case we read in my Evidence class. A widower was suing the driver of a car that hit for wrongful death. When you sue for wrongful death, there are a number of specific reasons you can claim you deserve damages: there is the physical pain from the actual loss of your loved one, there is the future companionship you would have enjoyed from that person, and there could also be the future financial benefit that person would have provided you.

The first theory is pretty simple to understand: the loss of a loved one due to someone’s negligence is immensely painful. The second one is also pretty straightforward. By definition, “loss of a loved one” means the loved one isn’t around to provide comfort anymore, and this leads to some odd discussions.

A defendant can either attempt to lessen the damages he would owe by showing that the yearly amount of comfort was not as great as the plaintiff is making it out to be, or the defendant can try to show that the plaintiff (or the loved one) will/would not be around to receive/provide as much comfort as the plaintiff is claiming. Think of it like algebra:

(Comfort Provided Per Year) x (Years Both Loved One and Plaintiff Would Be Alive) = Damages

Reducing either variable will reduce the overall damages, but you might imagine that a defense of “well, she was going to die soon, and she didn’t like you very much anyway” will not be very well-received by a jury.

Getting back to the case in my Evidence class, that was exactly the defense used in the widower’s claim against the driver. While evidence of one party’s character is usually irrelevant to the proceedings, the deceased’s opinion of the plaintiff can be very critical in determining just how much comfort and support the loved one would have provided.

While you can’t ask the plaintiff’s neighbor or mother or pastor what his opinion of the plaintiff is, you can produce evidence of the deceased’s opinion (for instance: a letter the deceased wrote to someone talking about how they couldn’t wait to divorce the plaintiff, because he’s a jerk). Despite the fact that this is certainly character evidence, this is also relevant because the deceased’s opinion of the plaintiff bears directly on the amount of money the plaintiff could receive.

It’s kind of funny that our legal system has created a process by which humans can be compensated for the loss of the uniquely human relationships that we enjoy, but the process itself dehumanizes the parties involved; we’ve just reduced the relationship and the remedy to morbid algebra. In a way, this seems very rational: if two parties have failed to reach a conclusion as reasonable human beings, then the best way to handle a situation is to empanel representatives of community standards (the jury) and use objective referees (the justice system) to reduce the whole situation to an indisputable mathematical certainty.

There’s something romantic about something so cold and emotionless. Perhaps it’s my inner Kantian at work.

Filed on under Legal Theory

Exams are over. They actually finished on December 19th, but one consequence of the intensive preparation and examination period is an aversion to anything even remotely intellectual for a week or two afterward. But now, as my brain cells have emerged from their self-imposed hiatus, I thought it fitting to discuss what drove them into exile.

I’ve always been good with dates and bits of trivia. As a small child, that meant I won my school’s spelling bee yearly. As a slightly older child, that meant I was always picked first for in-class Jeopardy! games. And when I got to high school, that meant I was the annoying guy who pointed out the teacher misstated the date of the fall of the Roman Empire. (I swear I have people skills now.)

As such, when I was first considering applying to law school, I explained to my friends that being a lawyer was all about knowing the obscure bits of laws and even more obscure cases that ruled on those laws. I wasn’t completely wrong, but being a good lawyer involves a lot more than just being good at trivia.

As it turns out, I was closer to describing law school itself than actual lawyerdom. (Note to self: register ActualLawyerDom.com for use when you pass the bar exam, and have to abandon AlmostLegally.com.) The fact is that you have to know a lot of stuff to really succeed in law school. There’s no way around it.

But a law school exam doesn’t just pose questions about which judge wrote which opinion in which case in which year in which jurisdiction wearing which powdered wig. Law school exams typically revolve around the dreaded fact pattern: a long and often silly story about people named Peter Plaintiff and Wendy Witness.

Sidebar: For examples of how silly some fact patterns can be, do check out some law school practice exams. You can search for them on your own on Google, but Law Nerds has a few that are kind of silly. Alternately, if you’re a University of Kentucky law student, your school has made available to the entire internet you some practice exams. (Do note that if you’re violating the terms of use of those exams, you may be a federal criminal!)

At the end of the fact pattern, your professor may ask you a series of questions about specific issues she wants you to address. For instance, on a Civil Procedure exam, the professor may pose questions about where Peter Plaintiff can sue, and what laws should be in effect if he does, and so on.

Most of my professors don’t do this, which means that before you even get to start writing down all those laws that you spent so much time memorizing, you have to do the leg work yourself. The most important skill for a law student taking a test (if not for lawyers in general) is the ability to spot issues that arise from the facts. You get points for recognizing the issues, and it follows that without recognizing the issue, you won’t be able to write your brilliant discussion of the law, so you lose out on even more points, too.

After your magnificent issue spotting has netted you a few points, you get more points for knowing the law that pertains to this issue. As laws aren’t ever really crystal clear, simply stating the law isn’t enough. You get more points for correctly applying the facts to the law: knowing which parts of the law depend on which facts (and which cases help you rule either way) is where you pick up all kinds of points.

So for the trivia nut (that means you, 23 year old me) who thinks that law school is simply a high-stakes game of Trivial Pursuit, you’d do well to practice applying facts to the law and knowing what issues look like. I outperform people who spend all day learning the laws because I’m obsessive about knowing how the laws work. Similarly, I’m outperformed on exams by people who have dissected the laws and are intimately familiar with their history and principles; all these things make for a more pleasant law school exam week.

You know, like how woolen socks make for a more comfortable root canal.

Filed on under A Day in the Life

Repent, all ye slackers: Exampocalypse is nigh!

Those three months of classes were really just the first half of the semester. The second half is finals week, which starts on the 10th. As such, I’m disappearing for a couple of weeks.

See you on the other side, internet.

Filed on under A Day in the Life

Courtesy of Harry Lewis, author of the very insightful book Blown to Bits:

Ethical or not, it looks like using [fake names to protect your privacy online] could set you up for doing some hard time in a federal penitentiary. Lori Drew was convicted of violating the Computer Fraud and Abuse Act because the jury deemed that by creating a fake identity as a boy, she had gained “unauthorized access” to the servers of MySpace, whose Terms of Service state that registration information must be truthful. By that logic, anyone using Bug Me Not is setting themselves up for indictment on the same charge.

The rest of the post, including some context if you’ve never heard of the wonderful web service Bug Me Not, is available at Mr. Lewis’s website here. And if you’re a little shaky on the technological side of some of these issues, I recommend Blown to Bits to help you understand the issues of the day.

Filed on under Legal Theory