CSI Effect

An earlier post contained a detailed description of the CSI effect.  But no one captures a concept with the humor and insight of John Oliver.

Litigation Song

Jaunty, if a mite stereotypical.  Probably written by a recovering lawyer.

Thought Provoking Law Quote: Alan Dershowitz

It has often been said that a trial is a search for truth. However, is there only one truth in a complex dispute? In 1995, former NFL star O.J. Simpson went on trial for the murder of his ex-wife and her friend. The criminal trial was broadcast on TV from the courtroom and captivated the nation’s interest. The “search for truth” was placed front and center in the American conscience. Harvard law professor Alan Dershowitz describes the scene in his article, Is a Criminal Trial a Search For Truth?:

A review of the trial transcript reveals that this phrase was used more than seventy times. The prosecutors claimed that they were searching for truth and that the defense was deliberately obscuring it. . . . The defense also claimed the mantle of truth and accused the prosecution of placing barriers in its path. And throughout the trial, the pundits observed that neither side was really interested in truth, only in winning. They were right – and wrong.

Simpson was acquitted of the criminal charges against him by the jury. The victims’ families also filed a civil lawsuit against Simpson for wrongful death of their loved ones. In the civil trial that took place immediately following the criminal trial, the jury found Simpson liable for the deaths. One incident, two trials, and two different “truths.”

Thought Provoking Law Quote: Peter Thiel

Peter Thiel, the billionaire founder of Pay Pal who famously financed Hulk Hogan's invasion of privacy lawsuit against the sleazy Gawker website that resulted in a $130 M verdict, recently explained his support for Donald Trump by detailing the great economic inequities constituting our national crisis:

“If you’re a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system.” 

- Peter Thiel addressing the National Press Club 10/31/16

How many times have we told our students that the civil justice system was the great social leveler?  Any "regular Joe" could find justice against powerful wrongdoers simply by accessing the court system.  Right? Is this still true, or has it become one of those quaint civics class myths like "the law is insulated from the influence of politics."

See the video here.

Trump Seeks to Exclude His Prior Statements From the Trump U Trial

Donald Trump's lawyers have filed a motion in the pending class action case over Trump University to exclude from evidence any statements made during the presidential campaign, including his own. The case is scheduled to go to trial in November and Trump's lawyers argue that all the negative statements about Trump made by political rivals, and apparently all of his own statements in defense, are irrelevant and prejudicial.  Most legal commentators agree that the judge is unlikely to enter such a sweeping order and will likely wait to rule on individual offers of proof during trial.

Certainly, juries should not have to wade through irrelevant material and undue prejudice must be avoided in every trial.  But isn't a party's motion to exclude his own prior statements a bit of a red flag?

Ironically, Trump previously tried to keep evidence from the Trump U case from being released into the presidential campaign.  It was the judge's order allowing the release that caused Trump to attack the judge's impartiality because of his Mexican Heritage - a ploy that harmed his political fates.

Is Civil Litigation a Level Playing Field?

Click on the link here to watch a Yahoo Finance reporter suggest that the employee lawsuit filed against Wells Fargo for enforcing unrealistic sales goals necessitating unethical conduct is likely bogus because "It was filed by a one-man law firm."  If the rules of civil litigation made a level playing field, then this would not be relevant.  If courts were really the great levellor where any person can take on a powerful party and have a real chance at justice, this would not be relevant.

Since it is apparently relevant, then maybe those other things are not true.

In the movie clip below from "The Rainmaker," sole practitioner Rudy Baylor tries to take a corporate deposition of the defendant insurance company represented by a "big" law firm.

One Case, Three Law Lessons

Sexual assaults on college campuses are a matter of great concern. Changes in the way that colleges and universities handle campus disciplinary proceedings based on allegations of sexual assault have changed radically in the last few years.  Those teaching law in universities are likely well aware of the panoply of legal issues raised by lowering the evidentiary standards for proof of guilt, barring cross examination or witness confrontation and other issues. (Click here to read an article on the topic by ALSB member, Audrey Wolfson LaTourette.)

Brown student, John Doe, had been found "responsible" for sexual misconduct by a University tribunal and was suspended.  The case hinged on a factual dispute regarding consent. At the time of the incident, the University had no clearly defined definition of consent, although one was later adopted.  Doe was suspended based on the retroactive application of the definition.  Also, he was barred from presenting evidence in his defense.

Doe challenged the faulty procedure in federal court. Because Brown is a private university, Doe did not have a due process claim.  He filed suit for breach of contract. Recently, Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, ruled in Doe's favor and ordered his reinstatement at Brown.

Lesson 1: Disputes must be resolved by a fair procedure of which both parties have had prior notice.

Sexual assaults on college campuses trigger deep emotions.  Victims deserve sympathy, support, validation and ultimately, justice. But the accused must also not be denied the legitimate opportunity to defend against the claims. The criminal justice system, with its Constitutional protections for the accused has been developed and fine tuned over the last two centuries. Finding and developing a completely different private adjudicatory system in colleges and universities that gives adequate consideration to the legitimate interests of victims and accused alike is a minefield of litigation.

Lesson 2: Federal judges cannot be lobbied like legislators.  They are appointed for life specifically to be less influenced by public opinion and passions.  The same principles may or may not apply to elected state court judges.

Judge Smith had been the target of a substantial e-mail lobbying campaign intended to affect his ruling.  In blasting the effort, Judge Smith explained: 

[T]he court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

Before the court was only the issue of the procedural propriety of the tribunal - not the issue of guilt or innocence.

Lesson 3: The law is not just a set of predetermined rules that are mechanically applied to achieve justice. There is a lot of trial and error and experimentation and evolution. And in that process, real people's lives are affected.

Cases are not just academic thought exercises. They are the legal outcomes of real, often tragic, events affecting real people. Courts do not have the advantage of legislators who can pass a law and send it out into society to  see what happens.  Judicial rulings apply immediately to affect the lives of the litigants in often profound ways.

Thought Provoking Law Quote: Frank Galvin in, "The Verdict"

In this blockbuster movie from the 1980's based on Boston lawyer Barry Reed's novel, an alcoholic lawyer mired in hard times thrust upon him by a legal system that rewards cronyism tries to redeem himself by winning a medical malpractice case.  See the post here.

In one scene, the lawyer, Frank Galvin (played by Paul Newman and earning an Oscar nomination) gives us a glimpse of what lies inside the gritty exterior and beyond the grimy practices.

The weak, the weak have got to have somebody to fight for them.... That's why the court exists. The court doesn't exist to give them justice, eh? But to give them a chance at justice.

See the scene below, beginning around :30:

Video Evidence

Cellphones are everywhere. But to what extent should cellphone videos be admissible as evidence in court? How do we guard against editing, enhancement and modification?  What do we see in these videos?

The Charisma Matrix

With lawyering, as with many critical service professions like physicians, psychologists, nuclear scientists, pre-school teachers, accountants, etc. it is apparently far better to look good than to be good.  Impressions trump substance.  So, access the Charisma Matrix:

 

It is Dangerous to Ignore Legal Papers

The video below documents a story illustrating why it is important to pay attention to legal papers.  A family sued over a neighbor's alleged emotional distress caused by the family's barking dog thought it was a joke and ignored the summons.  Now, with a default judgment against them, they are facing losing their home.

Students should understand the power of the law and its process.

Sorting Out Jury Verdicts

Students are used to popular cultural representations of jury verdicts as "simple" pronouncements of guilt of innocence.  However, as factfinders, the jury's duty in a civil case can be quite complex.

A jury in California recently ruled against Ellen Pao in her highly publicized sex discrimination lawsuit against Kleiner Perkins,a powerful silicon valley venture capital firm. The case is certainly interesting as a teaching tool on a number of fronts.  But I am particularly interested in bringing to you a link to the jury verdict form from the case, courtesy of the New York Times.  Students viewing the verdict form sent into the deliberation room will be surprised to learn that it contains 7 pages of detailed questions for the jury to answer.  The jury answers the fact-specific questions and, from their answers, the court (judge) fashions the judgment. There are also 14 pages of written instructions. Release of the verdict form sheds light on a part of trial procedure about which our students are mostly in the dark

It's not exactly as simple as "We find for the defendant."

News report on Pao verdict:

. . . It's What you Can Prove in Court.

An earlier post employed a movie clip from the movie, Law Abiding Citizen, featuring a prosecutor's explanation that, "it's not what you know, it's what you can prove in court" to explain to a victim's father the agreement to a plea bargain for her accused killer.  That story was fiction.  This story is fact.

In Kansas, a man originally charged with murder for severing the head of an acquaintance with a guitar string was sentenced to just over 4 years in jail following a plea agreement to a reduced charge of involuntary manslaughter.

According to the Topeka Capital Journal:

On March 14, 2014, a former girlfriend of [the defendant] testified he told her he killed [the victim], by using a guitar string to sever the victim’s head, then disposed of the body and kept the head in a bag. A part of the victim’s skull was discovered March 24, 2012, at a house in rural Carbondale in Osage County when [a woman] who lives with . . . the defendant’s father, said she was searching for mushrooms. Instead, she found the top of [the victim’s] skull. 

However, as it came time to proceed to trial: 

Other than a portion of the victim’s skull, prosecutors didn’t have the victim’s body, the murder weapon hadn’t been recovered, not all the prosecution witnesses were available, and prosecutors faced “credibility issues” with a major witness, [the prosecutor] said.

Not suprisingly, the family of the victim was outraged.  But, "it's not what you know, it's . . . "

Thought Provoking Law Quote: Judge Jerome Frank

Federal Court of Appeals Judge Jerome Frank was one of the leading writers in the Jurisprudence of Legal Realism. His 1949 work, Courts on Trial, is still relevant today as a critique on the ability of our trial system to effectively dispense justice.  From Chapter 6 of that work, The "Fight" Theory vs. The "Truth" Theory:

In short, the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation.

                                      -Judge Jerome Frank, Courts on Trial, 1949

Code Duello, Troglodyte Style

The videos available at this Huffington Post site nearly defy description by rational humans. The headline for the post is: "Girls' Fight Ends With Shovel to the Head." True to the headline, an 8 second video clip is shown where a girl gets a shovel to the head.  It looks like a classic case of civil battery.  But the 8 second clip is an outtake from an 8 minute video, also shown, where these two fine examples of American youth conspire to engage in a duel of fisticuffs while their earnest "seconds" stand outside the circle videotaping the exhibition for sharing on the internet.  The longer video has been taken down from youtube but is still available on the Huffington Post site. The longer video raises questions of consent that may provide a defense to a battery claim. How far does the consent go?  Does agreement to a duel with fisticuffs include use of a weapon? (one of the "seconds" even makes a similar query on tape).   It appears that the shovel wielder was earlier surprised when she was kicked by the shovel-to-the-head victim.  Did the kicking escalate the level of consent beyond the implied agreement upon fisticuffs?

What do these videos teach about the use of videos in court?  The 8 second video and the 8 minute video tell very different stories. Does the comparison of the two videos give support to the concerns expressed by law enforcement officers when they are videotaped - that the video shown or taken may not accurately portray the context of what is shown?

Warning! There is saucy language in the longer video!  As you might imagine, the verbal discourse between these aspiring Rhodes scholars and their friends may not be suitable for a classroom.  But, the language does impact upon the issues.

 UPDATE: The 8 second video has been removed from the Huff Post site, but click here to see a re-posting at vine.

Click here or on the image below to be taken to the Huffington Post report:

Contempt of Court

Students who watch the movie, My Cousin Vinny, are sometimes surprised by the contempt rulings against Vinny for failing to comply with courtroom decorum and question whether that is merely a fictional device to garner laughs.  Well, here is Judge Joe Brown, formerly of TV curt show fame, found in contempt of court and sent to jail as a result of his courtroom conduct. It happens.

Raw audio:

Question of Law or Fact?

Here is an interesting juxtaposition of articles.  In a trial in Michigan challenging the constitutionality of Michigan's state constitutional amendment barring same sex marriage, expert testimony has been elicited that same sex couples can be competent parents:

David Brodzinsky, an expert in adoption and foster care and a former Rutgers University professor, said there are no "discernible differences" in children who are raised by same-sex couples and youth raised by heterosexuals.

"It's not the gender of the parents that's the key. It's the quality of the parenting," said Brodzinsky, based in Oakland,Calif.

At about the same time, in a brief filed in the 10th Circuit Court of Appeals in a case where a US District Court judge struck down Oklahoma's same sex marriage ban, a legal argument was advanced claiming that same sex marriage is bad for children. 

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years beforeOklahoma's statehood — Alliance said marriage "is the foundation of thefamily and of society, without which there would be neither civilization norprogress," and cited a 1978 ruling that said traditional marriage was"fundamental to the very existence and survival of the (human) race."

So, is the effect of same sex marriage on children a question of fact or of law? 

Michigan case:

Oklahoma case:

A Trial's Real Impact

In an earlier post, we compared Hollywood's dramatic portrayals of court cases with the relatively boring and tedious progression of a real trial.  Perhaps, that post overlooks the tremendous emotional impact of cases on the lives of participants.

below is a video compilation of Hollywood portrayals of trials. Pay attention, in particular, to the courtroom reactions as a verdict is announced. Then view the video of a rel verdict announcement. No movie can effectively portray that.






And then there is this tragic scene:

Guest Blogger - Paula O'Callaghan: Stella Liebeck Scalded First by Coffee, Then by The Media

Paula O'Callaghan from the University of Maryland University College submits the following resource for use in class.

With the 20th anniversary of the verdict in Liebeck v. McDonald's approaching next year, Retro Report finally does the case justice, citing the relevant facts, evidence and discussing the settlement outcome.  What is particularly noteworthy about this twelve minute documentary, provided today on the front page of The New York Times website, is the depth of the research and the interviews with some of the actual participants in the case, such as the attorneys for both parties.  This is a great resource for debunking many of the myths that still surround this case.

Retro Report (Producer).  (2013, October, 21). Scaled by coffee, then news media [Video file].  Retrieved from http://nyti.ms/1fPUfhK

Click on the image below to go to the NY Times video site.

Artists' Works Copied by Big Business?

A number of artists are claiming that Cody, Foster and Co., a big wholesaler of ornaments and decorations, are ripping off their work. The report from Yahoo Shine seems to present pretty compelling evidence.  As does a flickr site compiled by an anonymous whistleblower. Read artist Lisa Congdon's blog post, "My Art Was Stolen For Profit and How You Can Help," about her trials and tribulations over this issue.  Read more, here.

I am speculating that the prospect of protracted litigation against a major, well financed corporation is daunting to a small independent artist. This is one of those situations where the law ignores the disparity of access to resources and presumes everyone has equal ability to enforce his or her rights. We should get our legal heads out of the sand and devise a system that can actually protect and encourage creativity. Otherwise, bullies always win.

Source of image below: http://lisacongdon.com/blog/2013/10/my-art-was-stolen-for-profit-and-how-you-can-help/