Constitution Anyone?, Part I.

Over the next two posts, we will be examining overzealous court decisions preventing First Amendment activities.

The first involves the ubiquitous Johnnie Cochran. It seems that a certain member of the public did not appreciate Mr. Cochran's performance in the O.J. Simpson case or something else. So, he took to picketing Mr. Cochran's office with signs calling him "a crook, a liar and a thief" and a "bad boy". (J. Steele, "Speaking of Johnnie", California Lawyer, February 2005, p. 12.)

A court ordered the picketer to permanently refrain from saying anything about Mr. Cochran--good or bad. (Id.) Specifically, the order forbids Ulysses Tory from (1) picketing Mr. Cochran's office and (2) 'orally uttering' any statements in a public forum about him or anyone at his firm. (Id.)

The California Supreme Court affirmed this expansive injunction in 2003, but the US Supreme Court accepted review. The High Court will likely hear oral arguments on the case by the end of April, 2005. Mr. Tory's legal eagle? Professor Erwin Chemerinsky of Duke and formerly of USC will serve as his lead counsel.

Prediction: reversal or modification.

Doctors and Lawyers, Part II.

Here's a quote I came across recently, which provides a bit of a (hyperbolic) capstone to my earlier post entitled, "Doctors and Lawyers".

"Doctors are the same as lawyers; the only difference is that lawyers merely rob you, whereas doctors rob you and kill you too."

- Anton Chekov

Movie Review: "Stevie".

What's the mark of a good movie?

Emotionally affecting? Thought-provoking? Engaging story?

If you believe all or some of these are hallmarks of a good film, I recommend "Stevie" (2003), which I saw on DVD today. "Stevie" is a documentary crafted by a maker of another compelling movie, "Hoop Dreams" (1994), Steve James. The title, "Stevie", is not a self-aggrandizing reference to Mr. James. Rather, the title refers to Stevie Fielding.

1. Synopsis.

Stevie Fielding was a troubled 11 year-old, raised by his step-grandmother, when Steve James became his Advocate Big Brother in the early 1980s. The two Steves lost touch when James relocated to Chicago to begin a film career in 1985. Ten years later, James visited Stevie with cameras in tow. At the start of the film, James sought to learn what had happened to Stevie over the previous ten years and also to understand the forces that had shaped him. During filming, however, Stevie was arrested and charged with a serious crime. As a result, the scope of the movie expanded into an over four year chronicle of Stevie, his broken family, the criminal justice system and the filmmaker, as they all dealt with what Stevie has done and who he has become.

2. Reactions.

If you are a human being, I don't see how this movie could leave you unaffected. The movie elicits tremendous sympathy and compassion for a troubled person, whose life circumstances cannot excuse what he has done, but they do provide an unsettling context to ponder.

The film also provides an interesting religious dimension. Religion is portrayed mostly positively. First, Stevie revisits a couple who cared for him as foster parents before his life came apart. They showed him unconditional love, even after all those years and his confessions of a long criminal history. Stevie responded extremely well to them, who were obviously believers. A reconciliation theme runs through the movie. Religion provides an impetus for reconciliations, including with his mother, and his relationship with God. In fact, Steve is baptized in the movie. The director (Steve James) even remarked to Stevie that he saw his softening to religion as a reason for hope when he mostly lost all hope for Stevie.

Finally, once again, this movie provides a disturbing insight into how the criminal legal system deals with poor people (much like "Aileen: Life and Death of Serial Killer" (2003), which I wrote about in a post entitled, "Monster"). You'll meet Stevie's public defender, you'll witness an appellate court argument in his case, and see Stevie deal with his options such as a plea bargain that would have set him free, sentencing and incarceration.

"Stevie" receives an "A-".

Pretty Soon You'll Need a Scorecard to Keep Track of the Lawsuits, Part III.

1. Punitive Damages Awarded to Make Statement.

After I left the Courthouse yesterday, the jury was still deliberating on the punitive damage request of local high school coach John Emme. (See my January 25 and 27, 2005, posts for background on this case.) Today's Los Angeles Times reported that the jury returned with an award of $200,000 in punitive damages--on top of the $500,000 it awarded as compensatory damages. (D. McKibben, "Corona del Mar High School Coach Big Winner in Slander Suit", Los Angeles Times, January 28, 2005, p. B1.)

Echoing his attorney's point in closing argument (see January 27, 2005, post), Mr. Emme stated: "This is a great vindication for me and a tremendous victory for coaches all over the country." (Id.) Coach Emme continued: "I hope this verdict tells people that disappointment lawsuits shouldn't exist and that it makes parents leery of filing them." (Id.) In other words, Emme's comments here are directed not to the purported defamation, but rather the lawsuits that were filed against him.

One juror said "the jury awarded the surprisingly high amount because they wanted to make a statement." (Id.; emphasis supplied.) Again, this sounds like the juror was repeating the plaintiff's theme from closing argument.

2. Reflections.

The media reports generally suggested that Coach's claim was merely one of defamation or slander (for example, look at the headline today quoted above, and another piece in the same edition saying "an Orange County jury awarded Emme $700,000 in his defamation-and-slander suit against Martinez". [D. Parsons, "Pitcher's Father on a Losing Streak", Los Angeles Times, p. B3].) Accordingly, it appeared his compensatory damages claim on this theory was largely in jeopardy when he testified this week that he did not lose any pay, any job, any job prospects, or any medical expenses. (January 25, 2005, post.) (Note: when defamation relates to one's profession, the law will imply some damages.)

However, as indicated here yesterday, Mr. Emme's lawsuit also sought damages for "malicious prosecution", i.e. when the parent unsuccessfully sued the coach earlier. Under this theory, the Coach could seek recovery of damages sustained in defending the prior lawsuits that were dismissed, which could have comprised a large measure of his claimed losses. However, the plot thickens. One of the jurors explained: "We awarded those amounts based on the damage to his reputation and the effect on his past and future earnings." (D. McKibben, "Corona del Mar High Coach Wins Big in Slander Suit", Los Angeles Times, p. B1.)

The defense lawyer indicated that the final chapter on this story might not have been written yet. "[T]he compensatory damages, which are intended to reimburse a victim for economic loss, were high because jurors didn't realize they could award punitive damages, which are intended to serve as a punishment." (Id.) I expect that he might bring a post-trial motion to set aside the verdict based on the juror's comments (among other things), an appeal or both.

Pretty Soon You'll Need a Scorecard to Keep Track of the Lawsuits, Part II.

The Blogdom is here! Just two days ago I wrote here about a lawsuit pending in the Orange County Superior Court involving a local high school baseball team. In short, the coach sued a parent of a former member of his team for defamation and malicious prosecution.

Imagine my surprise when I arrived in Court this afternoon for a hearing on one of my cases to see a jury hearing closing arguments for the punitive damages phase of this case. According to the defense attorney's argument, the half a million dollar award against his client (the parent) earlier today (in the compensatory phase) would be more than sufficient to send a message to his client. He implored the jury not to award any more money. He argued that the participants to this case were just people who needed to get on with their lives.

By contrast, the plaintiff's attorney requested that the jury send a message to the community because the media would pick up their verdicts and they should demonstrate that school teachers should not be placed in such a position, which might drive them out of the profession. As a member of the media with my vast audience (j/k), I wonder if he was talking about me because, through the unparalleled speed of this blog medium, I am able to report these developments before any member of the mainstream media ("MSM") or any other media.

Higher Education, Part III.

Isn't it odd that some of the most inhospitable places for academic freedom are in American institutions of higher learning?

Dennis Prager wrote in TownHall yesterday about yet another example of academic close-mindedness--this one involving Harvard and its president, Lawrence Summers.

"Harvard came out against seeking truth, and academics throughout America came to its support. ...

"[Some] empirical truths are not utterable in the most intellectually closed places in America -- our universities.

"In the year 2005, nearly four centuries after Galileo was forced to recant observable scientific facts about our solar system, the president of Harvard University was forced to do a similar thing. He was compelled to apologize for advancing an idea about men and women supported by scientific research and likely to be true. But for most professors, neither finding truth nor seeking wisdom nor teaching is the primary goal of the university; promoting leftist ideas is. ... [T]he highest institutions of learning often do not value learning but seek to propagandize their children...." (Emphases added.)

"The secular university provides one of the most cogent arguments for [Judeo-Christian] values: This institution, which is the most opposed to Judeo-Christian values, is also the least committed to truth."

By contrast, religiously oriented universities may actually provide a wider scope of inquiry and more academic freedom.

Pretty Soon You'll Need a Scorecard to Keep Track of the Lawsuits.

Pretty soon they will need to print a scorecard to keep track of all of the lawsuits that a local high school baseball team has generated.

The high school baseball career of J.D. Martinez did not go as his father had expected, according to today's Los Angeles Times. "[H]is father [a physician] sued [the] coach at Corona del Mar High, saying [coach] John Emme had derailed his son's college and pro prospects by making him pitch too much. Both cases were dismissed." (D. McKibben, "Slander Case Follows Pair of Lawsuits", Los Angeles Times, January 25, 2005, p. B3.)

Yesterday, it was Coach Emme's turn, as he "continued to testify in his $1-million defamation and slander suit against Marc Martinez, J.D.'s father." (Id.) "Emme, the coach at Corona del Mar for the last seven seasons, says the negative publicity from the lawsuits and the elder Martinez' media comments had hurt his reputation." (Id.) However, "under cross-examination, Emme said none of this had caused him to lose his job, suffer a loss in pay, seek medical attention or stop him from applying for a college coaching position." (Id.)

According to the Times, "'[d]isappointment' lawsuits, such as those Martinez filed, are part of an emerging trend in which parents take on school districts and coaches over the handling of their children. In some of the cases, parents have argued that coaches had done a poor job of showcasing their children to college or pro scouts. In other suits, parents contended coaches and trainers failed to help young athletes reach their potential. These types of lawsuits began to surface about 10 years ago, but experts said last year that they were not aware of any case in which a court had ordered a financial judgment." (Id.)

It's a Matter of Interpretation, Part V.

Most of these rules or principles of interpretation presume modernity--a worldview whereby truth can and should be ascertained. By contrast, postmodernism makes such efforts at interpretation of texts irrelevant. In postmodernism, there is no need to divine what a text means because it can be anything you want in accord with your "metanarrative". James Sire explains:

"The term postmodernism is usually thought to have arisen first in reference to architecture, as architects moved away from simple unadorned, impersonal boxes of concrete, glass and steel to complex shapes and forms, drawing motifs from the past without regard to their original purpose or function [endnote omitted]. But when French sociologist Jean-Francois Lyotard used the term postmodern to signal a shift in cultural legitimation, the term became a key word in cultural analysis.

"In short, Lyotard defined postmodern as 'incredulity toward metanarratives. [endnote omitted]. No longer is there a single story, a metanarrative (in our terms a worldview), that holds Western culture together. It is not just that there have long been many stories, each of which gives it binding power to the social group that takes it as its own. ... With postmodernism no story can have any more credibility than any other. All stories are equally valid." (J. Sire, The Universe Next Door (3d ed. 1997), p. 174; emphasis in original.)

Postmodernism has been called the abyss over the precipice. Once it is breached, it's a descent into nothingness. In nothingness, there can be no meaning.

Higher Education, Part II.

Continuing the thread developing on this site regarding the state of higher education (see, e.g., "Too Few Lawyers?, Part II", and "Higher Education" [Part I], here's an apt excerpt from "Grow Up? Not so Fast" by Lev Grossman, appearing in the January 24, 2005, issue of Time.

"College is the institution most of us entrust to watch over the transition to adulthood, but somewhere along the line that transition has slowed to a crawl. [Matt] Swann graduated in 2002 as a newly minted cognitive scientist, but the job he finally got a few months later was as a waiter in Atlanta. He waited tables for the next year and a half. ... (pp. 44-45.)

"There are several lessons about twixters [twentysomethings in this transitional stage] to be learned from Swann's tale. One is that colleges are seriously out of step with the real world in getting students ready to become workers in a postcollege world. Vocational schools like DeVry and Strayer, which focus on teaching practical skills, are seeing a mini-boom. Their enrollment grew 48% from 1996 to 2000. More traditional schools are scrambling to give their courses a practical spin. In the fall, Hendrix College ...will introduce a program called the Odyssey project, which the school says will encourage students to 'think outside the book' in areas like 'professional and leadership development' and 'service to the world.' Dozens of other schools have set up similar initiatives. As colleges struggle to get their students ready for real-world jobs, they are charging more for what they deliver." (p. 45; emphasis supplied.)

More for less. What a shame.

Higher Education.

Here's an intriguing post regarding higher education, entitled "Send Your Kids to Trucking School". For the full version, link it here.

"For years, I've thought it makes more economic sense to send your kids to trucking school when they turn 18. It takes a few weeks. Then co-sign for a Peterbilt tractor. It's all a matter of opportunity cost. The tads can start earning right away. So if college costs $50K a year, the college-bound will cost $200K in four years (and it often takes longer). Meanwhile, the truckers will be earning, say $50K a year. At the end of four years, your trucker kids will be $400K ahead. And at the end of four years, most college kids will either be (a) going into occupations with mediocre pay, like teaching; (b) going to graduate school; or (c) going into rehab.

"So, is 'liberal education' worth it from an intellectual or spiritual perspective? Given the biases and dominant schools of thought on campuses today, I'm not so sure. Of course, if your kid really wants to learn about raku, the banjo, or telemetry, by all means they should do so, and if you can, you should help them do it. But if you're motivated by economics or just a general idea that college is a 'good thing,' trucking school is an option worth considering."

By way of background, the author of this post, David G. Epstein, is an attorney that I used to work with at another law firm. Dr. Epstein knows more than a little about higher education. In addition to graduating from the UCLA Law School, I believe he holds a Ph.D. from Columbia University, and spent some of his career as a university professor. I am confident Dr. Epstein's tongue is firmly in cheek. In any event, he raises some interesting issues--for example, does one truly get what he or she pays for with the current manifestation of higher education? Should more be demanded? How can it be improved?

It's a Matter of Interpretation, Part IV.

These legal issues of interpretation crop up just about everywhere. Today's sports page provides yet another example. Check out the following story in the Los Angeles Times about whether the Angels' 1996 lease with the City of Anaheim allows them to change their name to the "Los Angeles Angels of Anaheim". (Of course, for those who know Spanish, this translates as, The Angels Angels of Anaheim.)

"With five words at issue in determining whether the Angels legally can add Los Angeles to their name, the man who negotiated the contract on behalf of the Walt Disney Co. said Thursday the disputed words were designed 'to give Anaheim prominence … so that Anaheim would be publicized when the baseball team was publicized.'" (B. Shaikin, "Anaheim Filing Cites Name Value", Los Angeles Times, p. D4.)

"The Angels argue that a clause requiring the team name to 'include the name Anaheim therein' permits them to play as the Los Angeles Angels of Anaheim. (Id.) Conversely, the City "had based its case on what the parties intended.... (Id.; emphasis added.) On this basis, the City tried to block the name change in court.

"In a court declaration Thursday, then-Angel president Tony Tavares said Disney Chairman Michael Eisner had not decided whether to use 'Anaheim Angels' or 'Angels of Anaheim'... but had 'no intention of including, or reserving the right to include, two geographic names in the team name.'" (Id.; emphasis added.)

In other words, the City argues that "original intent" should govern the interpretation of the legal document at issue. The Angels, at least in this case, prefer the "plain language" or "textualist" view. "The Angels have filed motions to throw out similar declarations from city negotiators and are expected to file another to throw out the one from Taveres, arguing that the lease speaks for itself and the court need not consider interpretations or explanations." (Id.; emphasis added.)

The Orange County Superior Court, sitting in Santa Ana, California, evidently agreed with the City's approach because the court today denied the City's request for an injunction barring the name change. The court ruled that Anaheim did not establish that it would probably prevail at the time of trial.

It's a Matter of Interpretation, Part III.

Kevin Ring's new book, Scalia Dissents (2004), provides a useful summary of the generally prevailing interpretive schools in Constitutional law.

First, Ring describes the chief "liberal" theory as "that of a 'living' Constitution. The idea is that the document's meaning changes from age to age to accomodate the evolving values of the American people." (p. 6.) Ring continues: "[F]or the advocates of the 'living' Constitution, every issue is open to new and changing interpretations." (p. 7.)

Second, Ring then catalogs "a couple of modes of interpretation that are fashionable in conservative legal camps." (p. 7.) "Some judicial conservatives suggest the proper interpretation can be discerned by examining the 'original intent' of the Framers." (p. 8.) Alternatively, other legal conservatives, such as Justice Scalia opt for "original meaning". Justice Scalia "defines it as the original understanding of the text at the time it was drafted and ratified". (p. 8.) This approach is distinguished from "'strict constructionists,' who believe all words should be intepreted narrowly." (p. 8.)

We'll continuing exploring these interpretive issues in upcoming posts.

Rules of Evidence: Tools of Truth?, Part II.

As promised in a previous post (January 6, 2005), this entry provides a general exposition of the theory that rules of evidence may be used to prove the reliability of the Gospel accounts. I'll reserve a critique of this approach for the purposes of brevity; nevertheless, the following provides an overview of the approach first posited by Harvard Law Professor Simon Greenleaf.

1. Analyzing the Gospel Accounts through Rules of Evidence.

In 1874, Professor Greenleaf argued in the Testimony of the Evangelists that the testimony of the gospel writers should be tested according to the same tests to which other evidence is subjected in courts. This general approach was followed in the more recent book, Faith on Trial: An Attorney Analyzes The Evidence For The Death And Resurrection Of Jesus (1999) by attorney Patricia Binnings Ewen.

2. Hearsay Exclusionary Rule and Its Exceptions.

Under the rules of evidence for "out of court statements," which is generally known as "hearsay," there are numerous exceptions allowing for their admissibility on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant's statement sufficiently reliable as substantive proof. (People v. Cudjo, 6 Cal.4th 585, 608 [25 Cal.Rptr.2d 390, 404] (1993).)

In the case of Jesus' sayings as recorded in the Gospels, we are potentially dealing with what is known as "hearsay on hearsay" or "double hearsay." This is so because Jesus' statements could be considered one layer of hearsay, and its recordation by others in the written Gospels could be deemed another layer of hearsay. However, this does not by itself make the evidence inadmissible. (Cal.Ev.Code Section 1201, F.R.E. 805. See People v. Collup (1946) 27 Cal.2d 829, 834 [167 P.2d 714]; People v. Lew, 68 Cal.2d 774, 778 [69 Cal.Rptr. 102] (1968); In re George G., 68 Cal.App.3d 146, 155 [137 Cal.Rptr. 201] (1977); People v. Perez, 83 Cal.App.3d 718, 727, 730 [148 Cal.Rptr. 90] (1978).)

A. Declarations Against Interest.

There are numerous exceptions to the hearsay rule which would allow for the admissibility of "statements" bearing the mark of trustworthiness. One such exception is declarations against interest--pecuniary, penal or proprietary. (Cal.Ev.Code §1230; F.R.E. 804(b)(3).) The rationale for this exception is that a reasonable person in similar circumstances would not make a disserving statement unless he or she believed it to be true. (People v. Frierson, 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 448] (1991), cert. denied, 112 S.Ct. 944 (1992).) For example, any statement that Jesus made that might be deemed blasphemous by the authorities of His time, such as the "I am" saying in the Gospel of John, would be against his penal interest. It could expose him to jail or worse (as it ultimately did).

B. Ancient Texts.

Then turning to the documents recording such a statement, the Gospels, the law specifically excepts from the hearsay rule ancient texts, where they are 20 (California Rule) or 30 (Federal Rule) years old, and the statements therein have been generally acted upon as true by persons having an interest in the matter. (Cal.Ev.Code Sections 1331 and 1341, F.R.E. 803(16).) Similarly, the statements could be deemed declarations against the interests of the Gospel writers, given the persecution of the times. Accordingly, there are exceptions for each layer of potential hearsay, and such testimony would be deemed admissible evidence.

C. Prior Consistent Statements.

Another exception to the hearsay rule is prior consistent statements. (Cal.Ev.Code Section 1236, F.R.E. 801(d)(1)(B).) It does not require a certain volume of prior statements, or a balancing of all statements to form a consensus, but simply rather that the prior statement is consistent with a statement that is being attacked. The reasoning underpinning this exception is that "it is not realistic to expect a jury [or fact-finder] to understand that it cannot believe (the) witness was telling the truth on a former occasion even those it believes that the same story given" at a later time is true. (Cal.Ev.Code Section 1236, Comment.)

D. Present Sense Impressions.

The law allows "present sense impressions" to overcome the hearsay exclusion. (Cal.Ev.Code Section 1241, F.R.E. 803(1).) These are statements made while the declarant was engaged in that conduct which is being described. (Cal.Ev.Code Section 1241(b).) The rationale for this exception is that the contemporaneous nexus between the event and the statement would likely undermine deliberate misrepresentation or fabrication. (F.R.E. 803(1), Adv. Comm. Notes.) As described in the Evangelists' records, many of Jesus' statements pertained to events, such as healings, while he was engaged in the event. The fact that they made have been summarized does not affect its admissibility under the hearsay rule.

E. Excited Utterances.

Similarly, "excited utterances" constitute another exception to the hearsay rule. (Cal.Ev.Code Section 1240.) These, however, require a "startling event" and that the statement was made under the stress of the startling event. The trustworthiness of such a statement arises from the fact that the declarant did not have an opportunity for reflection or intentional fabrication. (Cal.Ev.Code Section 1240, Comment; People v. Anthony O., 5 Cal.App.4th 428, 435-36 [6 Cal.Rptr.2d 794, 798] (1992), Box v. California Date Growers Assn., 57 Cal. App. 3d 266, 272 [129 Cal.Rptr. 146, 150].) Jesus' statements during the Passion would fall under such an exception, including the crucial statements on the cross, such as "It is finished." Such statements on the cross might also fall under the "dying declaration" exception if it could be argued they relate to the "cause and circumstances" of the death. (Cal.Ev.Code Section 1242, F.R.E. 804(b)(2). See People v. Gatson, 60 Cal.App.4th 1020, 1025-26, 70 Cal.Rptr.2d 729, 731 (1998); People v. Smith, 214 Cal.App.3d 904, 910-11 [263 Cal.Rptr. 155, 158-59] (1989).)

3. Conclusion.

In sum, hearsay is generally excluded from evidence in trials in the United States because it is deemed unreliable. Certain exceptions have been carved out because they are deemed sufficiently reliable to override the concerns with hearsay testimony. The foregoing exceptions have been employed with respect to the gospel accounts in an effort to argue for their reliability.

Doctors and Lawyers.

In the hierarchy of beloved professions, one might expect doctors to rank over lawyers on most lists. However, lawyers take heart. Donald Trump inverts this ranking in flamboyant (surprised?) style.

He writes: "[T]here will be times when lawyers are essential. Some people are scoundrels. [footnote: I have come to hate doctors. I think that, generally, they are a bunch of money-grubbing dogs. I can tell you about countless instances when doctors have ruined people's lives. As an example, a person I am very fond of had a foot injury that I believe should have healed naturally, but instead the doctor operated on it, fitting pins and plates into the foot. Now, after over a year of convalescence, this person is having a hard time walking. I think that suing a doctor like this would qualify as a worthwhile legal expense...This is just one of the many bad doctors I know of--there are too many others to name. I just can't stand the bastards]." (D. Trump, How to Get Rich (2004), p. 128; emphasis added.)

One need not accept Mr. Trump's rant about doctors to appreciate the truth in this passage. Lawyers are sometimes essential--take it from one (Mr. Trump) who has had his share of lawyers for and against him. For example, Mr. Trump states: "We needed a bus to get Ivana's [ex-wife] lawyers to court." (Id. at p. 125.)

It’s a Matter of Interpretation, Part II.

Harvard Law Professor Alan Dershowitz provides an illustrative story in his piece today about the Supreme Court. “[A]fter listening to a husband’s complaint against his wife, [a rabbi] declared, ‘You’re right, my son,’ and then after hearing the wife’s complaint about the husband declared, ‘You’re right, my daughter.’ When the rabbi’s student complained, ‘They can’t both be right,’ the rabbi shot back, ‘You’re right.’” (A. Dershowitz, “Prima Donnas in Robes”, Los Angeles Times, January 17, 2005, p. B11.)

Professor Dershowitz explains that such inconsistent results emanate from a lack of a guiding interpretive principle. “Ours is the most powerful Supreme Court on Earth. Its job is to interpret the Constitution by reference to principle and precedent.” (Id.) Of course, the next question is: what principle and what precedent? As mentioned in yesterday’s post, answering this question will be the focus of upcoming discussions about textual interpretation in both law and theological contexts.

It's a Matter of Interpretation.

A highly commended book about Supreme Court Justice Antonin Scalia just arrived. It’s called, Scalia Dissents (2004), edited by Kevin A. Ring. The book focuses, in part, on one of the touchstones of Justice Scalia's judicial career: his views on Constitutional interpretation. Ring writes:

“Scalia is a self-proclaimed ‘textualist.’ He believes laws—and especially that supreme law known as the Constitution of the United States—say what they mean and mean what they say. In short, when interpreting the Constitution, Scalia thinks judges should focus on the text….

“If the proper meaning of the text is clear, judges should then determine whether it provides support for the claimed individual right or governmental authority. If so, the claim is valid; if not, it should be rejected. The analysis is complete.” (p. 1.)

Having a foot in both law and theology, one of the areas I have observed for integration is the process by which texts are interpreted. In biblical interpretation, this field is called hermeneutics. In law, it’s basically taught as a subset of Constitutional jurisprudence. Nevertheless, the various processes by which texts are interpreted in these disciplines are fertile grounds for comparing and contrasting. Stay tuned for future posts on this topic.

Lawyer Jokes.

In the post a couple of days ago, I mentioned a problem two individuals had telling a lawyer joke outside a New York courthouse, which resulted in their arrest. What's another problem with lawyer jokes?

Lawyers don't think they're funny, and the rest of the public doesn't think they're jokes.

Too Few Lawyers?, Part II.

Yesterday's post discussed a 19 year-old dispensing legal advice from a website--and apparently doing so with some skill. "How can this happen?", some legal educators might question. "He didn't sit in our classes". "He didn't attend our schools", they might say. This story brings into focus the role of law school in preparing lawyers. I am reminded of a fascinating book published a couple of years back called, Brush with the Law, by Robert Byrnes and Jaime Marquart. This book was written by two graduates of Stanford and Harvard Law Schools, respectively. They discussed how they rarely attended classes, spending their time with other pursuits such as gambling and partying. One author didn't even live in the same part of the State during his third year. The other indicated that the only class that provided any practical knowledge was his first year class in Legal Writing and Research. Lawyers might want to pretend that we have a special knowledge or ability that can only be obtained by attending law school. However, with the "democritization" of information, as evidenced by the 'net, blogs and other information sources, the secret may be out. Much (but not all) of what lawyers do can be accomplished by those with a reasonable degree of research and writing capabilities.

Too Few Lawyers?

"If law school is so hard to get through... how come there are so many lawyers?"
--Calvin Trillin


In law school, one of my more colorful professors (an open Marxist) didn’t think there were enough lawyers. He suggested that the bar be barred. In other words, he didn’t believe that lawyers should be licensed. With fewer barriers to entry to the profession, the more “lawyers” available to “serve” the public. In turn, as a matter of simple supply and demand, the cost to the client would be reduced substantially. Incompetence, he said, would be handled by the market. Those who couldn’t perform would eventually be drummed out. Those clients hurt along the way could pursue malpractice lawsuits to be made whole. Getting lawyers to handle such claims would be easier because, again, there would be many more attorneys available to bring them (no pesky bar exams). My professor’s modest proposal came to mind when I read an unusual obituary this morning. The article told the story of a 19 year-old self-styled legal expert, Marcus Arnold. (C. Luther, “M. Arnold, 19; Q&A Website’s Self-Styled Expert”, Los Angeles Times, Jan. 13, 2005, p. B10.) It seems Mr. Arnold became one of the top-rated experts on an advice website, showing himself particularly adept at answering questions in criminal law. He apparently did so with great alacrity, amount and appreciation.

Tell a Lawyer Joke...Go to Jail (Maybe).

What's the price for telling an unfunny lawyer joke? Apparently, it's a misdemeanor, according to an Associated Press piece in the Los Angeles Times today. ("How Can You Tell if a Lawyer Is Angry?", Los Angeles Times, Jan. 12, 2005, p. A25.) In a line leading into a New York court, a lawyer overheard the following shopworn joke, "How do you tell when a lawyer is lying? His lips are moving". This prompted a lawyer in line to shout, "Shut up. I'm a lawyer". In addition, the lawyer reported the two involved to court personnel. The authorities then arrested the men and charged them with disorderly conduct, a misdemeanor. "They put handcuffs on us, brought us into a room, frisked us, [and] sat us down....They were very nasty, extremely nasty." The two were given appearance tickets and ordered back to court next month. One hopes they get better material--and keep their day jobs.

The Covenant Lawsuit.

Imagine you’re Robert Blake. You show up for your murder trial. You observe the prosecutor is also the judge. You might find this disconcerting. However, God acts as both the prosecutor and the judge in the “covenant lawsuit” motif that some theologians say exists in the Old Testament. (See, e.g., K. Nielsen, Yahweh as Prosecutor and Judge (Sheffield, 1978).) Under this setup, God would announce, through His prophets, His “lawsuit” or indictment against His people based on a breach of their covenant. The defendant would then have to defend. For example, “Arise, plead your case before the mountains. And let the hills hear your voice. Listen, you mountains to the indictment of the LORD, [a]nd you enduring foundations of the earth, because the LORD has a case against His people; even with Israel He will dispute.” (Micah 6:1-2; NASB; emphasis added.) Also, “[T]he LORD has a case against the inhabitants of the land…” (Hosea 4:1a; NASB; emphasis added.) The scholarly literature actually is divided on whether the “covenant lawsuit” really exists, or whether it a modern construct read back (or shoehorned) into the text. There are compelling arguments on each side. Nevertheless, the concept is an intriguing one, especially for one who seeks intersections and integrations of law and theology.

Book Reviews, Part III.

This post provides a brief review of the 2004 book I have referenced in a couple of earlier posts: The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right by Fordham Law Professor Thane Rosenbaum. First, Professor Rosenbaum diagnoses the disease, as he perceives it. He argues the system wrongly (1) elevates the legal over the moral; (2) the body over the psyche (or the “soul”) in awarding damages; (3) and otherwise obstructs the disclosure of truth in resolving disputes, among other things.

Second, as a prescription, Mr. Rosenbaum submits that “the story” is the remedy. In other words, Professor Rosenbaum evidently believes that the litigants should be permitted to tell their stories through trial (and even afterward) with little or no constraints. Emotional outbursts? No problem. Irrelevancies? No worries. Influencing his proposed storytelling remedy perhaps is Professor Rosenbaum’s status as a published novelist. In addition, he liberally quotes or references legal fiction writers such as Franz Kafka (The Trial), Charles Dickens (Bleak House) and Albert Camus (The Stranger) to support his proposition.

Mr. Rosenbaum promotes his remedy of “the story” almost to the point of a panacea. Professor Rosenbaum overstates his case; allowing litigants to emote and speak ad infinitum will unlikely solve the problems he suggests it will. Moreover, it is likely that new ills will emerge: (1) staggering expenses of seemingly endless litigation; (2) clogged courtrooms forcing litigants to wait years to even have the chance to tell their stories (“justice delayed …justice denied”?); and (3) creating a forum favoring better storytellers rather than those with the better legal or even moral positions. In the end, I did not find the proposed remedy persuasive; however, Professor Rosenbaum provides an insightful view of some of the maladies of the legal system, which, at the very least, is a starting point for fruitful discussion.

Euphemistically Speaking.

Euphemisms can be wonderfully entertaining. Yesterday’s post mentioned a case entitled, Lacy Street Hospitality Service, Inc. v. City of Los Angeles. The hospitality service? Nude dancing.

Feigning Sincerity.

After obtaining an appellate court ruling ordering the Los Angeles City Council to pay attention during public hearings, the winning attorney returned to the Council to chastise them for their “defiant” attitude, according to today’s Los Angeles Times. (J. Garrison, “Lawyer Finally Gets L.A. City Council’s Attention”, Los Angeles Times, January 8, 2005, p. B7.)

In the underlying appellate opinion, the Court of Appeal addressed the City Council’s conduct during a zoning hearing, which was videotaped. (Lacy Street Hospitality Service, Inc. v. City of Los Angeles (December 30, 2004).) According to the opinion, the videotape revealed “when the council president summoned LSHS to the speaker’s lectern to present its case, eight council members—three of whom were absent—were not in their seats. Only two council members were visibly paying attention. Four others might have been paying attention, although they engaged themselves with other activities, including talking with aides, eating, and reviewing paperwork.

“One minute into LSHS’s presentation, a council member began talking on his cell phone and two council members, one of whom had been paying attention when the hearing opened, started talking to each other.” Despite the attorney’s complaint about the lack of attention during the hearing, the conduct evidently continued. “[T]he council member with the cell phone started another conversation on it and four council members talked among themselves or with others. One council member was especially peripatetic, walking from one side of the council chamber to the other to talk to different colleagues.”

The Court of Appeal ruled that this conduct did not comport with “due process”. The Lacy Street Court stated that one “who decides must hear.” (Quoting Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 276.) “The inattentiveness of council members during the hearing prevented the council from satisfying that principle.” (Citing Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1024.)

It seems a simple principle: pay attention. If you are not going to, then at least look like you are. If you are not going to do either, then, at the very least, look out for video cameras.

The Golden Mean.

Donald J. Trump describes his experience of drowning in debt in the early 1990s. “The real estate market crashed. I owed billions and billions of dollars--$9.2 billion, to be exact. That’s nine billion, two hundred million dollars….In the midst of the crash, I passed a beggar on the street and realized he was worth $9.2 billion more than I was.” (How to Get Rich, p. 8 (2004); emphasis supplied.) Without debt, one appeared rich. With debt, the other appeared hopeless; the debtor was probably even envious of the beggar. I watched a "60 Minutes" episode not long ago wherein they did a piece on a financial advisor who specialized in advising Christians to shun debt as if it was an evil. Debt is not an intrinsic evil; it's more of a tool. Through the power of the "leverage effect", debt can help people be much better stewards. Conversely, used to an extreme, debt can crush like nothing else. Like so many things, debt should employed with moderation and balance.

Rules of Evidence: Tools of Truth?

In my January 3, 2005, post, I referenced Fordham Law Professor Thane Rosenbaum’s 2004 book, The Myth of Moral Justice. In this book, Professor Rosenbaum argues that rules of evidence are used to obscure truth in courtrooms. On the flipside, attorney Pamela Binnings Ewen writes in her 1999 book, Faith On Trial: An Attorney Analyzes The Evidence For The Death And Resurrection Of Jesus, that rules of evidence may be employed to ascertain truth. Specifically, Ms. Ewen analyzes the accounts in the Gospels through the prism of evidentiary rules. This approach largely derives from Harvard Law Professor Simon Greenleaf’s 1874 work, The Testimony Of The Evangelists. In so doing, Ms. Ewen contends that not only would such accounts be admissible in courtrooms (essentially through exceptions to hearsay exclusionary rules), but would be especially reliable and persuasive. Inasmuch as I have written papers on the topic from my days in graduate school, I plan to explore these exceptions/evidentiary rules in later posts.

Everybody's a critic.

Borrowing Dennis Miller’s line about somebody else, Paul DePodesta (the Los Angeles Dodgers’ relatively new General Manager) is getting stomped like a narc at a biker rally by the local media. I fired open the Los Angeles Times this morning to see the latest DePodesta drubbing. In an unusually literary article, the Times sportswriter compared Mr. DePodesta to Ayn Rand’s character Howard Roark in The Fountainhead. Roark was an architect who “blew things up” and “stood by his radical designs in the face of severe criticism”. While making the comparison, however, the writer was quick to remove any positive connotation that an architect might bring to Mr. DePodesta.

Setting aside the relative merits or demerits of Mr. DePodesta’s approach to the team, I reflected on his resolute approach, undaunted by withering criticism, which reminded me of Teddy Roosevelt’s famous quote:

“It is not the critic who counts, not the man who points out how the strong man
stumbled, or where the doer of deeds could have done them better. The credit
belongs to the man who is actually in the arena; whose face is marred by
dust and sweat and blood; who strives valiantly; who errs and comes short
again and again; who knows the great enthusiasms, the great devotions, and
spends himself in a worthy cause; who, at the best, knows in the end the
triumph of high achievement; and who, at worst, if he fails, at least fails
while daring greatly, so that his place shall never be with those cold and
timid souls who know neither victory nor defeat.” (“Citizenship in a
Republic”, Speech at the Sorbonne, Paris, April 23, 1910.)

Oxymorons.

I attended a seminar on mediation today. The speaker referenced The Seven Habits of Highly Effective People by Stephen R. Covey. In Dr. Covey’s book, he advocates for “win/win or no deal”. I wonder how this works in the context of a negotiation to settle a lawsuit, especially where there is no ongoing business relationship to preserve or repair. Is the goal to make the other side satisfied or to settle the most advantageous position for your client—the most money for the plaintiff or the least amount for the defendant? This latter kind of thinking reminds me of a piece I read in another book which argued that “friendly competition” is an oxymoron. I think Dr. Covey’s point is well-taken in certain contexts—for example, you definitely want to fashion a deal where your joint venturer, partner or even customer/vendor experiences a “win” as well. But, I don’t necessarily agree that it applies in all contexts such as a defendant settling a lawsuit, especially one that is nonmeritorious.

The Myth of Moral Justice?

The title of today’s blog entry comes from a 2004 book written by Fordham Law Professor Thane Rosenbaum, which I recently read. I’ll defer a full review of his book to a later time; however, I’ll extract now some ideas from his text.

In Chapters 6 and 7, Professor Rosenbaum argues that certain legal constructs are designed to hide truth. They include:

1. Settlements (especially with confidentiality clauses);
2. Plea bargains (really, a subset of number 1);
3. Rules of evidence;
4. Privileges (such as attorney-client);
5. Statutes of limitations; and
6. Zealous advocacy.

Two questions. First, is Professor Rosenbaum correct, at least in part? Second, if he is, then what should the religious (e.g., Christian) attorney’s response be?

UPDATE: Book reviewed here: http://lawreligionculturereview.blogspot.com/2005/01/book-reviews-part-iii.html

Seeming Paradoxes.

Having studied theology formally in undergraduate and graduate settings, and informally elsewhere, I have observed that some of the core tenets of orthodoxy Christianity demonstrate seeming paradoxes. I have catalogued a few, as follows:

1. Jesus Christ is both fully human and fully God;
2. The Trinity is both One and Three simultaneously;
3. The Kingdom of God is both present and future (“Already, but not yet”. See, e.g., Mark D. Roberts, Jesus Revealed, p. 54);
4. The Bible is both God-breathed (II Tim. 3:16) and written by humans (see, e.g., Gal. 6:11); and
5. Christians are both elected by God and saved by their volition.

It's Axiomatic!

Conversational cues such as, “With all due respect….” and “Taking nothing away from X….”, the content following the ellipses usually constitutes a contradiction of the preceding clause. For instance, some of the most insulting comments to a judge and counsel in a courtroom follow the ubiquitous, “With all due respect…” showing a lack of any respect. In sports talk, as another example, I have observed that when a commentator starts his or her statement with “Taking nothing away from X team….”, the commentator proceeds to do exactly that.