girl ipsa loquitur: 07/11/2004 - 07/18/2004 Email me!

Saturday, July 17, 2004

It Ain't Easy Being Green

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I learned a fascinating thing today.  Phytoplankton control the weather.
Yes.  I said that phytoplankton control the weather.  I'll bet that you did not know that.  and it's no wonder that you didn't.  It seems a little far fetched. 
Turns out that these plankton respond to ultraviolet rays from the sun by releasing compounds which form clouds.  The clouds, in turn, protect the plankton from the sun.  Are you as amazed by this as I am?  Its astounding that something so small and seemingly so insignificant can have such a profound effect on this planet.  On us.
Here's another piece of news, one a little less astounding.  Phytoplankton do not have a powerful Washington lobby.  There aren't D.C. plankton running around in DKNY suits and getting stuff done.  The same can be said for the rain forests, endangered species and fertile top soil.  All of these things are voiceless on their own. 
The reason this plankton-cloud connection interests me is because it serves to illustrate two things.  First, the apparent interconnected nature of seemingly disparate things.  Second, my total lack of real understanding about this connection.  I have been accused of being a tree-hugger (liberal left-wing bleeding-heart nature girl) in the past.  I have been characterized as the sort of person who prefers a state of nature to the welfare of people.  For instance, I was a little worked up when Mr. Bush came into office and started to undo all of the environmental policy put into place by the administration before him.  However, this does not mean that I am a looney tune.  It means that I can see the BIGGER PICTURE.  The question is, can you?
Phytoplankton, apparently one of the most insignificant species on the planet, can have a profound effect on cloud formation.  Clouds have a profound effect on the weather.  The weather, in turn, has a profound effect on us.  The desire to understand what the consequences of our acts will be before we engage in them seems clearly pro-human to me.  If I don't understand what the heck plankton even do, how can I understand the impact of failing to protect plankton?  A policy which suggests ACT first and worry about the consequences later is short sighted and, pardon me, stupid.
We have to focus on the bigger picture, to take into account the consequences of our environmental policy.  Not just on the U.S., but on the planet and on the rest of the world.  To dismiss the idea that a species of owl, or a stand of trees, or a bit of coral reef is significant is to ignore the fact that we just don't really know.  It may be insignificant.  Or it may be crucial to the balance of things here on earth.  Crucial to our own well-being. 
After all, who'd of thought plankton have anything to do with what SPF of sunscreen my grandchildren will have to wear?

Friday, July 16, 2004

"Designer" Juries

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A little trial went on in the media a while back, you may remember it, OJ's? That Chris Dardin was a sharp dresser but what's with Marsha Clark's hair? I think it's a problem when the parties (attorneys, witnesses, plaintiffs, etc.  --Not the judge. The judge is always in black) in a court proceeding are more concerned about what to wear than what to say.

I don't like this state of affairs at all. I am not a sharp dresser. In fact, I'm a slob. I spent the entire first year of law school looking like a bag lady. What's more, I am genetically incapable of spending a bunch of money on clothes ~~ or shoes ~~ or a hair cut. How am I going to fair as a litigator? Not so well. That jury will take one look at me and determine that I can not possibly know what I'm talking about. "Look at her shoes!" (I have a pair of loafers I wear to court that my biggest fan thinks make me a lesbian, not look like a lesbian but actually mean I am a lesbian)

So, I don't like this designer jury idea any more than I like designer clothes. In my perfect world, the mere fact that I dislike it magically changes it. POOF! No more jury engineering, Diva does not like it. However, and sadly, I live in reality most of the time. Reality is what it is. Juries are what they are. Just every day folks, susceptible to the same stuff as the rest of us. They form first impressions and come with all sorts of pre-conceived notions. There is not a darn thing we can do about it. 

I am not really sure how the whole designer jury thing works anyway.  I mean, I've read Grisham's Runaway Jury, but that's the extent of my knowledge about how this stuff REALLY is.  I gather that  it's a step beyond acknowledging the reality that people (read - Jurors) like to look at other people they find attractive. Or prefer nice clothes. Or good hair. With the designer jury we try to package facts and testimony in very specific terms to appeal to individual jurors. That really seems to totally disregard the point of the jury, don't you think? They are supposed to be OBJECTIVE finders of fact. But if we make everything as SUBJECTIVELY appealing as we can, we've completely subverted the process. But what are you gonna do? Reality is reality.

Well, If you can't beat 'em, I say join 'em!  Lets run with reality. How about national trials, American Idol style? Trials as reality TV. We'll just let all the viewers be jurors, they can phone in their verdicts. That way the parties can stick to a more general idea of what's attractive or popular, instead of getting so personally manipulative of individual jurors. Last Lawyer Standing!  We'll vote the lawyers off as soon as they get bad hair cuts. Perhaps the attorneys can sing during closing arguments? Make costume changes during recesses. We'll see how good (or bad) the plaintiff looks in a swim suit.  How far should we let this go?

My torts prof called juries "12 folks, good and true". There's nothing wrong with that. I think juries get it right most of the time. Even though few of us grew up longing to be jurors, most of us understand the importance of the function. Most of us have respect for the process, for the court and for the job. So, even if lawyers make their best subjective play for the sympathy of a jury, there is no guarantee that the jury will fall for it.  
As for me, I am still in trouble either way.  My basic slobness is going to be a stumbling block, difficult to overcome.  But I have a plan to deal with this.  I've decided to just to be a judge since I look GREAT in black.

Thursday, July 15, 2004

Character Counts

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Do you recall that the Vice President of the United States told Sen. Leahy to "go f**k yourself" last month? Maybe I wouldn't have if I wasn't subjected to some damage control in the press, again, today.

The vice presidents wife (The Second Lady?) has called her husbands use of the F word "out of character". Its her assertion that he doesn't normally talk like this, that its really Sen. Leahy's fault (he was asking for it I guess) and that it was a private exchange. Private? He was on the Senate floor. With senators.

But lets just give her that. We'll just go ahead and believe that Mr. Cheney felt like he was having a private exchange. So what? Is it alright to curse others in private but not publicly?

It is about character. Not the character of being the sort of person who uses the F word. (I am required by integrity to admit here that I am a frequent user of that word) It's more about being the sort of person who is willing to apologize for having said something truly disrespectful, unprofessional and reprehensible. I am pretty certain that Mr. Cheney does use the F word. It is very rare that someone, who is not suffering from advanced Tourette syndrome, would blurt out a phrase they never use -- accidentally. Mrs. Cheney thinks he was "pushed to extremes". I think that "extreme" exposed his character, not the other way round.

But what has the Vice President had to say for himself? Only that he has no regrets about the outburst. Funny that I can regret it, but he doesn't.

Does it really matter though? I mean who cares what those folks on the Senate floor say to each other when they are feeling "private"? I do. I care. Because these people represent me. And I would like think that even if I was a regular user of the F word (even if?), I could still manage not to blurt it out on the Senate floor, for crying out loud! Is it wrong for me to expect a sense of propriety and decorum in my government?

I am currently engaged in the arduous process of becoming an attorney. All those law shows on TV aside, I am pretty sure that if I walked into a court of law and dropped the F bomb on opposing counsel that I would be in some seriously hot judicial water. No court is going to allow that kind of utter disrespect to go un-sanctioned. And that's the way it should be. We have to hold the line of civility and decent behavior some where. It's not held in the press. It's not held in our schools. People parade around with that word emblazoned on their shirts in public and you can buy it on hundreds of music CD's with out any extra effort. I think that the Senate floor ought to be F word free.

Don't get me wrong, Mr. Cheney has not fallen in my esteem because he knows the word. Nor has he fallen for having accidentally said it. He fell in my esteem for failing to apologize for the gross disrespect for both Sen. Leahy and for himself. For his disrespect of the position that he holds in this country. And for his disrespect of me.

I seem to recall (don't quote me on this) Laker's center Shaq using the same language to a referee last season. What was done about that? I am glad that at least the NBA recognizes that there are certain things you just don't say in polite company.

Wednesday, July 14, 2004

I'm Coming Out

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At one point or another, we've all been in denial about some aspect of our lives. Dork pointed mine out for me. "You're bi-legal." he says. "Just admit it." I guess that's right. I do go both ways.

My former contracts prof (lets call him His Honor) thinks that I am disingenuous. I have the greatest level of respect for what His Honor thinks. So this assessment stings. Disingenuous? I thought I was bright and inquisitive. Further, I honestly believe that in order to really study the law you have to go both ways. Its an intellectual gymnastic routine that leaves you a well rounded student of the law and not just an empty talking-head, asserting opinions which you do not understand. Besides, what more satisfying endeavor can there be than to prevail in an argument when you know you had the weaker side? Every body loves it when the underdog wins.

So, I'll stand by my bi-legality. (I considered bi-legalism but this does not rise to the level of an ism. Its just an ality) I might even try to recruit a few people in my class. You'll recognize us by the rainbow colored scales of justice tattoos.

To serve a valid and necessary purpose in the law, you do not  have to be the RIGHT guy or the innocent guy or the wounded guy. (As opposed to the WRONG guy or the evil guy or the committer of mayhem guy) Our adversarial system of justice has just left a lot of people with a bad taste in their mouths. It seems so focused on conflict that we've lost sight of the over riding principle involved.

TRUTH seeking.

Yep. That's the point of our courts of law. They are tribunals established with the ultimate purpose of finding out the truth. (Who killed Mr. Green in the conservatory with a candle stick?) Once we know the truth the rest is easy.

Its the manner in which we try to come to the truth that has tended to muddy the water. What we do is really the intellectual equivalent of boxing. With the judge as referee. (Picture court reporters in skimpy bikinis parading around with placards designating what point we are at in the trial)

Summary judgment is the civil TKO. It is a one-two punch that takes out the other guy before he even gets his fancy robe off. I guess the same can be said for the criminal plea bargain, but that's more like the other guy just conceding the match with out even stepping in the ring. If we get past opening argument then it is just one guy wailing away at the other until someone has hit someone hard (read- persuasively) enough to end the fight. This is the extent of my boxing knowledge so I'll end the metaphor here, but I am sure you get my meaning.

It's easy to lose sight of the ultimate goal. No, it's not winning. It's not The People prevailing over The Defendant. It's not The Defendant prevailing over The Man. It's certainly not the multi-millon dollar pot-at-the-end-of-the-rainbow jury verdict.

It's The Truth.

Once we know the truth then we can decide what to do about it. We'll punish someone, or repay someone, or get your grandma's wedding ring back. We'll hold someone to their contractual obligations or we'll let someone off the hook. We'll do the right thing once we know for sure what the right thing is. We're only going to know that if we get to the truth.

This begs the question I know you're asking, whether or not we have to have adversity to seek truth. Some people don't think so. There are other systems where the court does all the work of sorting out the truth for itself. Everyone else acts as friends of the court, pointing out what they think is important but leaving it all up to the judge in the end. This is a pleasant way to do this business. But it is seriously lacking in zeal.

The prospect of adversity forces you to do the best job you can. Prosecutors build strong cases, which result in certainty that a convicted defendant is in fact guilty, because they know the defense is going to attack the weaknesses. We can't fault the defense for this. It played it's role in bringing out the truth. And when we can't make that jury certain that the defendant is in fact guilty, we let him go. It works the way it is supposed to the vast majority of the time.

There are a few that get overwhelmed with the adversity, with the game. Those attorneys that win at any cost because they've lost sight of truth or never cared about it to begin with. As for those self-zealous few, I guess they also serve a purpose. They stand as examples of how it can go wrong to remind the rest of us to stay vigilant. Isn't it always the exception that proves the rule?

Tuesday, July 13, 2004

Oh Yes! It's Ladies Night

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I had occasion to think about the UNRUH Act recently while, of all things, listening to my favorite morning show on the radio. Did you know that some Smart-Ass civil court plaintiffs have done away with Ladies Night? It's an outrage! How can you make a discrimination argument out of drink discounts given to encourage ladies to come out and get drunk? I would have figured most guys to be all for Ladies Night. (Truth is MOST guys are all for it)

So what the heck happened here?

Apparently some guys are more interested in litigation than getting drunk with the ladies. These particular guys are opportunists, I am sure, though I don't know them personally. The condensed version of what happened goes like this:

Some clever guys figured out that the Ladies Night discount is a violation of the UNRUH Act. (I call them clever only because they know about the UNRUH Act)

Then they go around to clubs which have Ladies Night promotions and demand equal treatment from the management.

The club managers laugh at them. (Since they were unaware of the UNRUH Act)

Then the opportunistic-litigation-lovers head straight to court to vindicate their statutory right to equal treatment by a California business.

Viola! The end of Ladies Night.
If you find this absurd, you're not alone. The idea that these guys were some how injured by this, damaged by it, is nuts. After all, this Act was intended to protect people from harmful discrimination, not the denial of drink discounts.

Nevertheless, our opportunistic plaintiffs won. Because they were able to make out a cognizable cause of action under the law as it is presently written. (for you non-lawyer types this just means that they had a case) We don't make subjective value determinations when deciding if the plaintiff has made a case. We just look for those prima facie elements (English = stuff you need to have a case) and say "yea" or "nay".

My Dad (Let's call him Diva's biggest fan) doesn't like this. And to be honest, I don't really like it either. But we disagree on whose fault it is and what to do about it.

We can agree that litigation in this country seems to be out of control. Every time you turn on the television there is another TV Tort Lawyer hawking his wares. People day-dream about winning the personal injury lottery, scams abound and "I'll SUE you" is as common a salutation as "Have a nice day".

On the other hand, every day people are injured by the negligence or malice of others. We should be able to agree that those people deserve to be compensated, to be made whole.

In between these two positions is a vast and varied grey area, riddled with divergent facts and competeing interests. Whose responsibility is it to cull the wheat from the chaff? My biggest fan seems to think that lawyers are the gatekeepers, and every time a questionable case gets to court it's because some lawyer just wants to make a buck. Fan thinks that if the lawyer were an ethical person, he would not assist in the bringing of this subjectively silly law suit.

In stark contrast, I tend to think that it's the plaintiff who should be the gatekeeper. Afterall, it's his cause of action. If the law allows him to bring it into court, then it should be his choice to pursue it or not. To my mind the trouble lies in the bigger arena of what the law allows you to bring to court.

Take our opportunistic kill-joys for example. They did not invent the UNRUH Act. They didn't manufacture a cause of action out of thin air. They had all the pieces, all the parts, for a winning law suit. That's why they won. Now the fact that you or I wouldn't have brought the suit doesn't mean that they can't. Technically, they CAN. Even if the first 12 lawyers to meet with them suggested that they not let the door hit them in the ... buttocks. In any event, lawyers will make terrible gatekeepers because if you can't find a lawyer who will represent you, you can still just represent yourself.

The only effective gatekeeper, if we need one at all, is that prima facie case stuff. Not having a case at all will keep you out of court. (Or throw you out of court, depending on how tenacious you turned out to be) Maybe we should think about tort reform. If civil plaintiffs quit winning the lottery there would be a lot less incentive to cook up a law suit in order to cash in. Any way you slice it though, it comes down to the law. Plaintiffs have to play by the rules. Lawyers have to play by the rules. If you aren't happy with the game then it's time for some new rules.

Monday, July 12, 2004

Dream like a Dolphin

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I have been informed by an old friend that just because I've decided to be a shark does not mean that I can't dream like a dolphin. This was a relief! I was really worried that I was going to have to change in some fundamental way in order to be an attorney. Or at least to be a good attorney.

Turns out my relief was short lived. Right now I am studying legal ethics (see previous Oxymoron post) and I have discovered a rule that I just KNOW is going to be my down fall. It goes like this :

A lawyer shall not knowingly ... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...

In English this rule means that you have to tell the judge that your case is a loser even if the other attorney is a loser. I was counting on being better prepared and better informed and just plain better than opposing counsel. That was how I was gonna win my cases, build a reputation and eventually become a LEGEND. (Don't laugh, that was really my plan)

But now I am forced to factor in this annoying little rule. I've always asserted that in order to make a cogent argument you must first understand the opposition. In order to understand the opposition, you have to learn their arguments. Once I've learned their argument I am duty bound to tell the court what their winning case is, if they couldn't figure it out for themselves! (Its the judicial equivalent of If You Give a Mouse a Cookie ~ If You Give a Lawyer Controlling Precedent)

You might think that there is a simple solution here. "Diva," you'll say, "Just look into your side of the case and turn a blind eye to the other guy." ("Blind Eye To The Other Guy" new reality show about lawyers, clients and trial tactics) I've thought of that. Come on, thinking about this stuff is what I do. But there are other rules that make this tactic unethical. Let's take a look at one that goes like this:

A lawyer shall act with reasonable diligence and promptness in representing a client.

In English this means that a lawyer has to do due diligence. (I not only love this alliteration but I practice saying it with a straight face so I can stand up in court one day and say it with authority) We can quibble all day about what is due diligence and what is so-so diligence and what is no diligence at all. Lets keep in mind, though, the phrase most associated with ethical/legal dilemmas; "Zealous advocacy within the bounds of the law."


Finally, consider legal mal-practice for a moment. The sufficiency of my research will be judged by this objective standard; What a similarly situated attorney would have known. In other words, I limit my research at my own peril.

Is the conflict becoming clear yet? If I do a really good job of research and turn up something adverse to my client, I have to tell the judge. But if I do a so-so job of research I may miss something important and then I risk a malpractice suit. Either way the client is not going to be happy. More importantly, I can not be both an ethical lawyer and a legend.

My dolphin dreams are deflating, passing sharks just ate them.

Sunday, July 11, 2004

Constitution Schmonsititution

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Mr. Bush wants to amend the constitution to include these words; "marriage in the United States shall consist only of the union of a man and a woman." I am not sure how to convey in writing the sort of pause this should bring to you. He wants to amend the constitution of The United States of America.

Very, very, very pregnant pause here. A moment of terrified silence even.

What Mr. Bush proposes to do would constitutionally endorse an entire class of persons (heterosexuals). Put right on them that constitutional stamp of approval. Or, if you are cynical, it would constitutionally reject everyone else. Its your choice, since it makes no difference. It is the antithesis of what the Bill of Rights was intended to do regardless of what terms you couch it in. (I can not help the picture in my mind of Mr. Bush standing next to a giant machine churning out Star-Bellied Sneetches)

Now I am going to frame the issue, since I am in charge of this little bit of the world, by first telling you what the issue is not.

This is not a question of the rightness or wrongness of homosexuality.

This is not a question of the inherent danger to children everywhere if gays are allowed to marry.

This is not even a question of democracy and what the majority of people want.

The question is this:

Why in the world does this issue need a freaking constitutional amendment?

Amendment is a very big gun, folks! It is the nuclear weapon of U.S. law, it trumps everything, it is literally in charge. After all, when the Justices of the Supreme Court sit down to decide any constitutional issue they are constrained within the bounds of the constitution itself. No matter how persuaded they may be that certain people are inherently inferior (Oh, like, I don't know... TV tort lawyers) they can not just uphold a law making it perfectly legal to punch one on the first Monday of each month. Even if every single person in the country except for TV tort lawyers voted for it. The constitution would stop them, and us.

But what if we amend the constitution? Lets add this lovely bit of prose right in there so we can get what we want with having to worry about that old constitution standing in our way; "battery in the United States shall be the harmful or offensive touching of the person of another unless the other is a TV tort Lawyer."

Once we've put that brilliant bit of thinking into the constitution, what will our justices do? They'll uphold the law as being perfectly constitutional. They have no choice. Now suppose that they never really thought you should just be able to whack a tort lawyer. They may be all be closet tort lawyers at heart. Maybe they have tort lawyers in the family. Damn liberal stacked tort lawyer loving court! What can they do about this then?

The answer is nothing.

Out little amendment has made it facially constitutional to subject some people to a different set of rules than others. That simple. The justices don't get to grapple, they just have to comply. It is impossible for the constitution, itself, to ever be unconstitutional. And the only way to change it is with a new amendment. A counter amendment. If the amendment is a nuclear weapon, we are now at constitutional nuclear war.

Back to our question. Why the heck do we need to roll out the big guns? The majority of people in this country are opposed to gay marriage. Isn't that enough to stop it? Mr. Bush doesn't think so and he is probably right.

His fear is that every time this equal protection question comes up in state court the decisions are going to allow gays to marry. (I have to laugh at the irony here, a republican wanting to strong arm states into compliance with the federal scheme?) Then it will come up in appellate courts, applying state laws, and the decisions will stand. And this horrible blight of lawfulness will spread all across the country, unchecked by popular opinion, blanketed by the protection of the states constitutions.

In other words, Mr. Bush wants to haul out the big guns to kill this thing quick because it's the only way he can kill it. Every time this issue comes up, courts of reason are going to hold that to deny one person the rights and privileges afforded to another is a blatant denial of equal protection and patently unconstitutional.

The whole point of equal protection is an historical recognition that some times the majority is not right. Sometimes the minority, unpopular smart mouthed red-headed step child that it is, has the right idea. Have you noticed how up to now all the changes have extended constitutional protection, not limited it? (Oops, I forgot about prohibition. THAT was a good idea)

So if Mr. Bush has his way and rewrites the constitution to reflect the opinion of the MOB, I believe that we will all be diminished in a fundamental way. This amendment "fall out" is going to hit every one of us. Once the taboo is off the amendment process everyone with an agenda, a lobby, and some popular support will be seeking to do the same thing. How do you like this one?

"ARMS in the United States shall be defined as only those weapons which existed on or before the year 1791."

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

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