Blog Ipsa Loquitur

One of my professors used to be a federal prosecutor.  Actually, a lot of them were prosecutors. (Old trial lawyers never retire, they just adjourn more often.) Now they have moved into academia, and they bring fantastic stories from the world of lawyerdom. Now I relate one to the internet.

When you’re trying to convict defendant of a crime, one of your goals is probably to prove that he was at the scene of the crime. In the old days, before security cameras were everywhere, and cell phones could track your movements, this was done by putting an eyewitness to the incident on the stand. Then the prosecutor would get up and do his best impression of Perry Mason.

“Mister Witness, you claim to have seen the brutal attack on the victim at the pier. Do you see the person that attacked the victim in this courtroom?”

The witness nods, and the prosecutor asks the witness to point out the person that he saw on that dark and stormy night. The witness points a trembling finger at the scraggly-looking fellow sitting next to the defense attorney, at the defendant’s table.

“Ah ha!  Let the record show that the witness pointed to the defendant, Mister Shawn Carter.” With that, the prosecutor takes his seat at the opposite table, and rests his case. The witness leaves the courtroom, and the jury starts thinking that they might get to take an early lunch.

Now the defense attorney gets up and does his best impression of Perry Mason. He calls to the witness stand the scraggly-looking defendant.

“Please state your name for the record, sir,” the defense attorney says.

“My name is Andre Benjamin,” the defendant replies. The jury gets a little confused, and the prosecutor turns an interesting shade of pink.

“Well, then, where is the Shawn Carter, the defendant?” The defense attorney feigns the confusion that it actually mounting in the jury.

Suddenly, a well-dressed man in the back of the courtroom stands up and proclaims that he is actually the defendant. The defense attorney throws his arms out wide and says “well, I guess that means Mister Witness has just exonerated my client!” And the courtroom is thrown into an uproar until the judge can restore order to the courtroom.

Professor C. says that defense attorneys would hire people to “stand in” for the defendant in a dramatic attempt to undermine eyewitness testimony placing the defendant at the scene of a crime. Apparently, it worked pretty well, because everyone knows where the defendant sits. Everyone knows that the prosecutor has brought the eyewitness in to point at the defendant. And with the pace of some trials, it could have been months or even years since the eyewitness had seen the defendant.

Judges took umbrage, it seems, with defense attorneys turning the courtroom into an episode of Perry Mason, and so this sort of thing has been restricted. But if you ask me, (and really, what judge in America doesn’t want to take advice from a 2L?) this sort of thing would be great for the criminal justice system.

You know, in the same way that a housing crisis is great for people that hate retiring before the age of 80.

Will the economy fall apart? Will it grind to a halt? Slow to a crawl? I have absolutely no idea. But I do know that I’m really glad I didn’t go into finance. As for people that did? The New York Times has a nice article called “Finance Students Keep Their Job Hopes Alive.” Hey, good luck guys. But what’s this?

Mr. Murray described the mood at Princeton as cautiously optimistic. “No one I’ve talked to is worried about moving back home yet,” he said. “But everyone I know is studying for the LSATs right now, people who a month ago had no intention of ever going to law school.”

Boy, am I glad I didn’t put this law school thing off. I get a nice little head start on the folks who are abandoning the financial sector and moving into the legal field.

My Fellow Americans (and foreign people who speak English),

It has come to my attention that we have been misled and bamboozled. We trusted the people in charge of our money, and unwittingly took on thousands of dollars in bad loans. Our return for this investment was promised to be boundless. Instead, it turns out that we will be hopelessly shackled with debt for the rest of our lives.

No, I don’t mean the national debt. I don’t mean the mortgage-backed securities crisis that is currently imploding our national credit markets. I speak, of course, of the crisis to our nation’s most valuable commodity:

Law students! You see, I’ve been bedridden all week with a horrible cold. (I dragged my zombie-esque self to the office yesterday, and came back home to snuggle up to a Nyquil smoothie, but let’s not split hairs.) So I finally wake up to a morning where my sinuses aren’t attempting to choke me, and I read the news.

The Wall Street Journal has a nice little article about how the aforementioned Creditpocalypse is impacting student loans. With credit for big companies being hard to come by, who wants to lend money to a guy with a bachelor’s degree in philosophy and a resume full of “waited tables in college?” Banks are being a little more shy with their money, and law students have to borrow quite a bit.

sidebar: If you’re not and never have been a law student, you might not understand a couple pieces of jargon: “Biglaw” a big law firm that can afford to pay big salaries to starting attorneys. “T14” is the top fourteen law schools in the country.

But the anonymous commenters to this article are the brave prophets of a doomed world. Much like Jor-El, only they truly understand the horrors that await the blissfully ignorant.

Here’s the deal: there are lots of law students in America. There aren’t enough new hirings at Biglaw for all of us. So the law students that go to T14 schools get first dibs on Biglaw jobs. The anonymous commenters get up in arms, griping about New York Law School (which is not one of the T14) and how expensive their tuition is. They reason that schools shouldn’t charge a lot of money if they can’t guarantee that their students will land jobs with Biglaw:

Matasar should be ashamed of himself. Most New York Law School grads can look forward to years of debt, stress and low income, while Mtasar enjoys his six figure income.

It’s hard to imagine an educational institution where the dean doesn’t make more money than the graduates. I’m not sure what this one is trying to say, actually.

Any tightening of loans that disuades potential law students from going to a rip off school like NYLS should be encouraged. They are a lower tier school charging $40,000 a year in tuition. Nobody should go there unless they know they will be top 10% (doesn’t everybody think that?!), has solid connections in law, or does not have to take out loans to pay for law school. Otherwsie you are commiting financial suicide.

This is another of the “Biglaw or bust” crowd. Maybe he’s one of the people that thinks the world is ending in 2012. If you don’t have a job with Biglaw, yes, you probably won’t pay off your $120k in loans before 2012. But I plan to be employed for a while. (If the economy doesn’t collapse, mind.)

If the market worked properly, then NYLS would have only filled 20% of its incoming class this September.

Actually, if the free market worked properly, lawyers wouldn’t have a monopoly on the practice of law. Lawyers would have to compete against non-lawyers to provide legal services. (more on this another day)

The single best part about all these comments is that these folks are wrong: Biglaw is far from the only option available to pay off huge student loans you’ll run up financing your law school education.

The College Cost Reduction and Access Act was signed into law last year. The article I’ve linked to does a wonderful job explaining how the law works. (Seriously, go read it right now). Basically, if you work in public service or non-profit, and make modest loan payments for ten years, your loans will be forgiven after the 10th year. This is huge news for anyone with an interest in public service work, but too many student loans to afford the smaller paycheck.

So if you go to a “lesser” school that doesn’t qualify as T14, and you’re not likely to land a Biglaw job, it doesn’t mean you’ve committed financial suicide: it just means you should strongly consider doing some public service. (Heck, if 90% of the law students in America went into public service, lawyers might not be so reviled.) It’s a good deal.

I can work for the government or for a non-profit group for a while, and then be just as free from student loans as the lawyers that went to work for Biglaw. So Biglaw isn’t my only option for paying off my student loans, despite the fact that I’m not a top 10% student at my lower-ranked school.

What do you say, anonymous trolls? Can we at least agree that there are options for people who want to work somewhere besides Biglaw, and that lower-ranked schools aren’t committing financial homicide on their students?

For instance, you could have sex with strangers for money to pay back those loans.

Lawyers have specific rules about conflicts of interest. Because of the nature of advocacy, you want your lawyer to have your interests in mind as he earns his paycheck. If your lawyer is also being paid by the other side to have their interests in mind, you’re not really getting advocacy so much as arbitration. (Sidebar: arbitration, by the way, is much cheaper than going to trial, and you can generally get your claim resolved much more quickly.)

The other big concern, of course, is keeping confidential information that your lawyer has confidential. To that end, not only is a lawyer prohibited from representing both sides of a conflict, but every other lawyer in his firm is prohibited from representing his opponents. And not just within the same trial, but in any two trials (about the same legal issue) where two clients have diametrically opposed interests.

A lawyer that is found to have a conflict of interest is disqualified from the case, and forfeits the right to bill his client. Whoops. All that time you spent working on the case before someone pointed out your conflict of interest? Turns out it was pro bono! Congratulations.

I’m simplifying, of course. But there are implications even in the simple version of the rule. In the age of huge law firms with an army of lawyers located in offices all around the world, it can be complicated to figure out which branch is representing whom, and which lawyer in which branch is representing whom.

In the olden days, this rule made a lot of sense. A law firm was comprised of three gentlemen who would sit down for tea every afternoon and talk about what they were working on. But law firms kept getting bigger and bigger, and eventually, the rule seemed kind of silly. There were five hundred lawyers in three different offices, and the lawyers from one office couldn’t pick lawyers from another out of a police lineup.

These days, the rule seems like a good idea, because computer networks have made it possible to share more information with more people than ever before. While two attorneys from two offices on two continents might not have ever met, they can share information (whether intentionally or not) that ought to be held in confidentiality.

At some point, some lawyer got the bright idea to treat conflicts of interest not just as situations to be avoided, but situations to be created.

Apparently, large corporations are continually buying and selling pieces of other companies, attempting to create a hopelessly tangled web of business relationships. If you own a stake in a dozen companies that each retain a firm, that’s a dozen firms that can’t sue you. Even better, if you can create a conflict of interest with your opponent’s lawyers during a trial, you can disqualify them from the case, and force new lawyers to come in and start all over.

As far as I can tell, being a good lawyer involves more than just being good at the practice of law. Sometimes, it involves being a cunning bastard advocate and thinking of all the unorthodox things you can do to represent your client. Why beat the other team’s lawyer when you can disqualify him? One of my professors likes to say “you’re not being paid to be ‘fair,’ you’re being paid to do the best job you can.” There’s a reason jokes like this are so popular.

During a trial, a lawyer isn’t permitted to speak directly to the jury outside the opening and closing statements. But the opening statement is (theoretically) a preview of the evidence, and the closing statement is a summation of the evidence. So to actually present the evidence, lawyers use witness testimony. “I saw the robber point his gun at the victim.” “The blue car ran a red light and hit the plaintiff’s car.” And so on.

A lawyer also gets a chance to discredit the testimony of her opponent’s witness by asking things like “what kind of gun? How far away from the robber were you? Were you behind the victim, or behind the robber? How dirty were your glasses?” or “Were you watching the car, or the light? Where was the plaintiff’s car? My client’s car has a dinosaur sticker on the bumper: did you see any such sticker on the blue car?” Now we get to hearsay.

Hearsay is, briefly, testimony by proxy. The witness is not telling the jury what he saw: he’s telling the jury what someone else claims to have seen. This is problematic for a number of reasons.

I Heard It’s Not a Big Deal

In ye olden days, the big problem was that the testimony was (ultimately) coming from someone who wasn’t under oath. Sure, the guy on the stand swore to tell the truth with his hand on a Bible, but he’s just saying “Frankie Two-Face told me the blue car ran the red light and hit the plaintiff’s car.” Frankie Two-Face could be a two-faced liar, for all we know.

Further, in ye modern days, the role of the oath and Bible in keeping people from lying is… well, diminished. The big concern today is that a lawyer won’t get to cross-examine a witness providing testimony from an out of court statement.

So today, there are two chief reasons for this concern. The first is that the jury can’t see Frankie Two-Face’s face when he says all those horrible lies. Maybe he’s a lousy liar, and the jury would see right through him.

The second reason is that a lawyer cannot adequately cross examine Frankie Two-Face by proxy. The information is coming down a one-way street. Probing questions on cross examination will be met with answers like “I have no idea. Frankie just said that guy looked really guilty to him.” This is the big reason we don’t permit hearsay these days: the absence of any meaningful opportunity to cross examine the real source of the information.

However, as one of my professors said on the first day of law school, “law is ten thousand rules, each with ten thousand exceptions.”

Exception, The Setup for One

My favorite exception (which isn’t technically an exception because a statement falling under this “exception” actually fails to meet the three elements of hearsay under the Federal Rules of Evidence) involves a problem out of my casebook. To be hearsay, a statement has to be offered for its truth, and not for another purpose. Keep that in mind as you read:

Land Lloyd owns a field. Farmer Brown leases that field to grow some corn. Brown grows corn in two plots: one to feed his family, and a bigger one to sell at the end of the year. All goes well for a couple of years, until a home lending crisis all but decapitates the economy, and nobody wants to buy any corn.

Brown takes Mr. Lloyd out to his big plot of land, and explains his predicament. Brown says “All the corn in this plot is yours: I’ll harvest it for you at the end of the year, but it’s yours today if you want.” Mr. Lloyd accepts Brown’s offer.

A month later, the housing problem has started to impact the rest of the economy. Desperate, Farmer Brown borrows some money from the bank and uses his corn as collateral, telling the bank “oh, yes. I own all this corn. Yes, this is definitely my corn.” Sadly, Brown defaults on his loan and the bank takes his corn.

Mr. Lloyd isn’t thrilled about this, since he thought that corn was his. He sues the bank to try to win back his corn. During the trial, Lloyd testifies that Farmer Brown (who has since fled the rest of his creditors, and is nowhere to be found) said the corn belonged to Lloyd. The bank objects to this evidence as hearsay. Is it?

Mr. Lloyd, in this case, is asserting that he owns the corn. So if he offers this statement by Farmer Brown to prove that it’s true that Lloyd (not the bank) is the owner of the corn, it’s hearsay.

Operative Legal Effect

But Mr. Lloyd can offer this statement by Farmer Brown for another purpose. Lloyd’s lawyer should respond to the objection by pointing out that it’s not being offered to prove ownership, the statement is being offered as evidence of a verbal act. The statement by Brown had an operative legal effect: it was an offer to engage in a contract (or to modify a contract, which brings in legal issues that are totally unrelated here).

So if Lloyd can testify about this statement by Farmer Brown, can the bank’s loan officer testify about Brown’s statement that he owned the corn? Nope. The jury will never hear that evidence, because it’s hearsay. Brown’s proclamation of ownership has no operative legal effect. Brown’s offer to Lloyd did, and so Lloyd can testify about that all day long.

The answer turns on what Lloyd is testifying about when he says that Brown offered him the corn in place of his usual payment. If Lloyd is using Brown’s statement to convince the jury that the corn belonged to him, it’s hearsay. But if Lloyd is using the statement to convince the jury that a contract existed between himself and Brown, it’s not hearsay. It’s a statement that created a legal relationship.

Some airlines are starting to offer internet connections on their flights.  This worries people, because there is a whole lot of pornography on the internet.  It’s understandable, and there certainly is room for a discussion.  What I really like about this article is the approach one airline’s spokesman takes:

While [the internet] does provide a new access point for information and content, customers viewing inappropriate material on board a flight is not a new scenario for our crews who have always managed this issue with great success.

If people are allowed to take pornographic magazines onto a plane, or pornographic DVDs, or iPods full of pornographic movies, then there is no reason to filter pornographic web sites on a plane. I am a firm proponent of the idea that the internet only changes the game because we think it does; really, it’s just another means of distributing the same information we’ve always gotten.

(Although really, this airline’s policy isn’t about technology being viewed as I stubbornly insist it ought to be.  It’s probably just too expensive to filter content on the plane.)