CRIMINAL LAW AND ME

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I’ve enjoyed movies involving criminal trials as much — well nearly as much — as the next person, especially before I became a lawyer. (Afterwards, my interest devolved into seeing how many mistakes about courtroom procedure, the practice of law and the office life of lawyers I could find in what I was seeing, which was fatal to that temporary but willing suspension of disbelief essential to viewer appreciation.)

It’s true I entered law school at the age of 51 principally to be able to earn enough money to finish raising my two trusting children as I thought they should be raised. But I did feel I might be a good trial lawyer because I’d always been a big talker.   As a seasoned movie-goer, I visualized myself mesmerizing juries with my words. Then I discovered mesmerizing juries came last.  There was a lot, a lot, a lot of other stuff that preceded it, especially in civil litigation, where 90% of cases settle on the courthouse steps, if not before. As for crime in its less than murderous aspects, much of it is plea-bargained before it reaches fact-finding in court, which is what jury trials are all about, at least until the penalty phase.

[Before moving on, are we clear about the difference between civil and criminal litigation?  Civil cases are claims of harm brought by one party against another that don’t involve alleged violation of a federal or state statute, or of a municipal regulation.  The plaintiff (complaining party) seeks either injunctive relief — “Court, make him/her/them stop it!” or “Court, make him/her/them do it!” — or else money damages, as compensation for the alleged harm done.  No one goes to jail or prison or is condemned to death.  Criminal complaints, on the other hand, always allege statutory or regulatory violations, are brought against the defendant(s) by state district attorneys or federal assistant attorney generals acting on behalf of  governmental entities and, if proven beyond a reasonable doubt, do result in jail or prison time, or — as in the recent Boston Marathon bomber trial, brought under federal law — a death sentence.] 

Okay, back to me. What kind of future did I have in mind  when I applied to five law schools in the greater Boston area and entangled myself in considerable federally-backed loan debt?  Candidly, I was hoping for any kind of job I could get at what everyone thought of as “my age.”  Lawyer husbands of neighbors counseled that after I had passed the bar, I should set up shop at any small local law firm that would give me a desk, and then represent anyone who came in: this potential client population, they anticipated, would consist of friends, or friends of friends, seeking divorces or separation agreements or modification of custody agreements, or perhaps a new will.  No salary, of course. Just a percentage of whatever I brought in.

Theoretically speaking, there would have been an alternative to this unappealing prospect right at the outset, although no lawyer husband of a neighbor mentioned it. Any member of the bar can sign up at any Massachusetts trial court to represent indigent defendants and be paid by the Commonwealth. It’s not much per case, but probably more than a percentage of any domestic dispute fees I might have been able to generate. I could also have applied for a job as a county Public Defender and, if hired (despite my “age”), become a “regular” employee of the Commonwealth. These two avenues would have been open to me because criminal defendants are legally entitled to representation by counsel and few, other than members of the Mafia or those accused of white collar crime (that is, of playing footsie with the federal and state securities laws) can afford to retain private defense lawyers. Therefore the government which has indicted them must also provide a defense.

Perhaps not surprisingly, public defense work never crossed my mind. Defend criminals in order to send my darling children to good colleges?

I know, I know.  Under the Anglo-American system of law, you’re not a criminal until it’s proven.  Accusations can be wrong. You’re entitled to a defense. Even if there’s seemingly compelling “proof” that you’ve done what the criminal complaint asserts you’ve done, there may have been legal flaws in the way such evidence was obtained which should preclude any verdict based on it.  I do believe all this.  However, I’ve never believed it enough to step into a jail cell, even with a prison guard right outside, in order to confer with a sullen client, perhaps not guilty of the particular offense with which he was now charged, but only perhaps.  (Although a defense attorney wouldn’t really want to go into that, because unlike in movies, the job after indictment is not to find truth, whatever it might be, but to identify flaws in the prosecution’s case.) I would have been especially reluctant to step into that cell if the sullen client were known to be generally comfortable with wielding knives and punching people even if he may not have done it this time.

That’s not to say I don’t admire lawyers who do step up to bat in order to preserve what they can of how our legal system is supposed to function.  I know a wonderful woman, married to a man with whom I shared a secretary when I practiced law, who emerged from Harvard Law School with a stellar record, held a prestigious federal clerkship, and then turned down a great offer from a major law firm paying major money to go defend criminals in Suffolk County, which includes downtown Boston and its slummier corners. At the start, she earned barely a living wage walking into those prison cells alone. But her defense work, which is now in the federal system and supervisory, has since that humble beginning been praised and commended by the entire Massachusetts judiciary and bar.  I might add she continues to correct you if you happen to use the word “criminal” in connection with anyone in her client base.  “Alleged criminal,” she says quickly, with a smile.

So how about the other side?  Nina Mishkin, tough on crime?  Criminal Law was one of the five mandatory courses of the first-year curriculum at Suffolk Law School when I enrolled in 1982.  I found it confusing.  But then I found the other four courses confusing, too. (Constitutional Law most of all.)  I suspect everyone did, but being twenty-two and twenty-three, they all played it cool and pretended it was a breeze.  At 51, I sweated bullets. Going to law school “at my age?” What had I been thinking?

I did like the Criminal Law professor, though.  She was about as old as I was but had gone to law school at 39, after an early marriage splintered into divorce.  Then she practiced in the Middlesex County District Attorney’s office for eight years, building up trial experience. (I found out all this later, of course, not while her student.)  She was also attractive, wore great suits which I much admired, and had good legs. She must have had the legs before she became a lawyer but they did add to her appeal as a role model. When the results of the Criminal Law exam, given in December, were posted in January, it appeared that sweating bullets had been of some merit as a methodology for learning law. I finished first in the class:  1/345.

Encouraged by early success, I made a mental note to take, in due time, the other course she taught, a third-year elective called Criminal Practice.  Which, in my third year, I did. This was not, as you might imagine, simulated courtroom practice in a classroom, although there was some of that — to somewhat prepare us for what awaited in a real court.  (“Objection!”  “Objection!” “Objection!”)  No, no.  We would actually be thrown to the lions.  Had I considered carefully, I might have had second thoughts. I have never done well with on-the-spot stress and angst.  (Stress and angst that I can take my time with, although not good, is part of life. By contrast, thinking fast on your feet doesn’t come up very often.) But I already had a job offer for when I would pass the bar. (God willing!) And so, with carefree abandon, I registered. What the hell. That was exactly the right word.  For me, hell is what it turned out to be.

It was then possible to offer live courtroom practice to students under a statute I can no longer cite permitting them to represent the Commonwealth in Massachusetts District Court (not to be confused with the federal District Court) under the supervision of an Assistant District Attorney.  This court had jurisdiction over only a few relatively minor criminal offenses. (Complaints involving weightier matters were brought in Superior Court.) The two I now remember were “‘Larceny Under” (thefts of under $100 in value) and “OUI”s (“Operating Under the Influence” — that is, drunk driving).  Over the semester, two OUI’s came my way.  I knew nothing of adroit cross-examination, how not to lead the witness, how to rephrase, or when to make my own objections.  Truth to tell, despite the 1/345 I knew nothing, and neither did any other law school student or graduate, about how to practice law, or how to try cases.

I nevertheless prevailed.  Bottom line: Nice-looking middle-aged lady in navy blue nunlike skirt suit actually won.  Both times.  In front of two separate six-person juries.  The second time, even the hitherto dour judge smiled approvingly. But the stress and angst to reach that result, the splitting headache that left the premises with me, were too high a price for prosecutorial triumph. At the end of the semester, I accepted the job offer from a (big) civil litigation firm, which provided plenty of stress and angst of its own, but spaced out over the next twelve years. Those two little OUI trials therefore became the only true war stories of my legal career — good examples of what thinking outside the box and life experience can do for you when opposing counsel and a not particularly friendly judge seem about to shut you down.

You want to hear?  My pleasure.  Another time.

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WHO OWNS THE FOX?

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Before I consign all those legal casebooks and hornbooks in my basement to the recycling bin, permit me to beguile you with another short visit to law school. In my last such post, “– And Wife,” we considered the concept of assault, an intentional tort.  Although that case — the earliest one recorded in Anglo-American law — made the intentional infliction of fear of bodily harm in another person an actionable offense, you may recall that despite the wife being the person who was put in fear of bodily harm, no one back there in 1205 questioned an underlying assumption in the case: that she was her husband’s property, which is why he had to bring the suit in his own name as the injured party.

Lest anyone harbor any lingering doubt that capitalist societies  have always rested on ownership — whether it be of land, livestock, means of production or intellectual property, although today perhaps no longer of wives — let me introduce the case of Pierson v. Post, otherwise affectionately known by its students as “Who Owns the Fox?”  [3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805), if you really need a citation so you can go look it up afterwards to prove to yourself I’m not fooling.]

Pierson is one of the first cases the first-year law student encounters in the Property Law casebook. Why that should be, I cannot tell you, except maybe because who owns what seems to remain of paramount importance to an awful lot of people — even if most of us don’t chase and shoot animals anymore.

These are the “facts” (otherwise known as the story):  Post was in pursuit of a fox while hunting with his hounds. (Here we learn at the outset that Post was a gentleman of property.) Pierson killed and captured the fox even though he knew Post had been pursuing it.  Neither party owned the land on which they had been hunting. Post brought suit in trespass, contending he had acquired title to the fox when he began to hunt it. Pierson asserted that Post did not yet have control over the fox and therefore had not acquired any property interest in it. The trial court entered judgment for Post (the guy with the hounds), and Pierson appealed.

The appeals court reversed the lower court. It stated the mere fact a person is pursuing a wild animal does not grant that person a right to the animal.  “First to kill and capture” is the superior rule of law.  Had Post mortally wounded the animal, that would have been sufficient to show possession, since it would have deprived the animal of its natural liberty.  But he was only able to show pursuit and therefore acquired no property interest in the animal. There was a dissent, seeking to reward the pursuer (Post) for his effort, but we don’t have to go there, as dissents don’t become law.

Notice the bit I italicized?  About neither party owning the land through which the poor fox ran?  If Post had been the owner, that would have changed the outcome for him. Conversely, if Pierson were the owner, there would have been no case. Alternatively, what if the person who really was the landowner had intervened as an interested party?  Suppose his counselor-at-law had whispered in his ear that he should get himself over to court and claim property damages from both those guys for running amok and killing an animal on his land?

[I seem to be getting carried away with the lucrative possibilities here. No wonder lawyers have prospered over the years.]

Okay, back to the point, if there is one. [Or if there isn’t, maybe that’s the point.]  Does Pierson v. Post  tell us anything we still need to know? Does it give a guy at a bar the right to slide over to a hottie two stools down as soon as another guy who’s been chatting her up needs a bathroom break?  Is “first to kill and capture” the superior rule of law here?  Suppose there’s a brawl over hanging-out rights (“I saw her first!”), the hottie bursts out laughing at both of them, “You guys kill me!” and walks off with someone else, thus entirely eluding capture, at least by either of the two fighting over her.

You think I’m putting you on about property law?  You’re lucky we’re not moving right along  to The Rule Against Perpetuities.  (Otherwise known as Let’s Hope It’s Not On the Exam.) Roughly (very roughly) speaking, that one prevents you from leaving property to any descendant who will not yet be alive — is “not yet in being” —  when you die and who doesn’t get born until more than twenty-one years after that. At least, I think that’s the usual construction of its meaning, and there may even be an arcane reason behind why twenty-one years, but most people leave such legal refinements to the Wills and Trusts lawyers, one of whom I never was, so we probably should too.

And now I will recklessly click “Publish.”   I have to roll the recycling barrels out to the curb before it gets dark.  They’re collecting tomorrow.

MORE FROM THE LAW SCHOOL TOOL CHEST

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Law school did more than stuff my head with the arcane language of the law and credential me to sit for the bar.  Even now, eight years officially retired from practice, I still occasionally resort to a method I learned there for addressing knotty problems.

It is the procedure known as “briefing the case.”  Nobody forces any law school student to do it.  But it’s one of the first things you’re taught before you’re taught anything else, and once you’ve mastered it, it continues to help whenever you find yourself in a situation or face a dilemma you feel you can’t untangle or think about clearly.

New students are urged to brief cases — at least during the first year — because American law schools rely on the casebook method of instruction.  There is no “textbook” per se. There are “hornbooks,” which are rather like textbooks, but you’re not required to buy them;  at best, they provide auxiliary help in understanding what you’re supposed to be learning about. Instead, for each course you purchase a book of opinions  — usually from appeals courts, sometimes from federal trial courts — known as the “casebook.”

A “case” (the reported opinion) is not so easy to read.  The plot part — namely the facts of what happened to bring the matter to court — is usually succinctly summarized near the beginning, without characterization, dialogue, suspense, or anything else that might make the story pleasurable reading. Then the court goes off into lengthy discussion of precedents, legal argument from both sides, its own reasoning on the matter, and at long last the result — in all of which it is very easy for the novice to get lost.

What was the case about?  Why was it assigned?  How does the willing but bewildered student deal with assignments of two or three cases for each class in each subject, when there are three subjects that meet for class three times a week and two that meet  twice a week?  Six to nine cases to prepare for Monday, for Wednesday and again for Friday, and four to six for Tuesday and for Thursday.   (Not to mention assignments for your Legal Writing classes.)   “Prepare” means “get yourself ready to answer aloud questions about any aspect of the case that may, arbitrarily, be directed at you in class.”

Aha!  That’s where the “briefing” comes in.  With this handy helper, you will have every case down pat in no time.  Or your notebook will.  (Well, not exactly “no time.”  But more quickly than if you tried to struggle on without briefing.)  It’s an armature on which to build your notes of the case, and this is how it goes:

Question Presented:
Short Answer:
Facts:
Analysis:
Conclusion:

The “Question Presented” is of course the legal question that has been brought before the court.  You may have to read the whole case before identifying what you should put down here, but you will eventually find it somewhere in the forest of text.

“Short Answer” usually has to wait until you’ve filled in everything else.  [The very new student may get it wrong and have to correct the briefing after class, but that’s okay.  You learn by doing.]

The “Facts” section is relatively easy to do, once you remember to keep it terse and leave out absolutely everything extraneous to the Question Presented.

The “Analysis” section will contain the detailed pros and cons of answering the Question Presented one way or the other, with citation to legal authority — namely, other past decisions that seem to be on point with the Facts of the case, or can be distinguished from them.

The “Conclusion” should provide the outcome of the court’s analysis, with explanation.  The student can then boil down the Conclusion into a sentence or two for the Short Answer.  [When studying for the examination at the end of the year, Short Answers will be more helpful in making an outline than having to re-read the entire Conclusion of every case covered in the nine months of the course.]

Briefing cases is laborious at first.  After a few months, it gets easier and goes more quickly.  After the first year, you don’t really need to do it anymore.  You will have learned how to read cases like a lawyer — which will be important when you begin to practice law, because you will have to read many cases to find the ones supporting your client’s position and also the ones that don’t (so you can argue away their relevance in court).

How is all this of use to you, the non lawyer?  Or to me, now that I’m a retired one?  Well, this is how.  When you’re really stuck, it works to unstick you.  Take the hypothetical of an unhappily married person who feels he or she cannot go and cannot stay.  Not our problem, I know — but as good an illustration as any.

Question Presented: This is not the place for “either…or.”  Put down,”Go?” Or put down,”Stay?” You’ll come out at the same point in the end however you phrase it, but it’s simpler to ask just one question.

Short Answer:  Wait on this one until you’ve written out the “Conclusion.”

Facts: All the pro facts, all the con facts.  But facts, not feelings.  If a feeling is a fact, then it needs a “because.”  As in, “I hate her because….”

Analysis: Do the good things about the marriage (as identified in “Facts”) outweigh the bad?  By how much?  Or is it vice versa? Here’s also the place for your knowledge, if any, of how divorce affects the various members of families who have experienced it. What benefits are likely to ensue from a decision to go? A decision to stay?  How well are you able to address the sorts of difficulties that will almost certainly arise if you leave? Be honest: Consider financial, emotional, parental, social results, as well as everything else you can think of that seems relevant to reaching a conclusion.  In addition, consider what might/ would make the present, seemingly untenable, situation better?

Conclusion:  This may, in the end, be to not  come to a conclusion just yet, but first try another less drastic solution to the problem. If so, let your “court” make some suggestions as to possible directions in this part of the briefing, such as counseling,  or spiritual guidance (if that’s important to you).  Alternatively, by the time you’ve written everything out, the conclusion may unquestionably be a “Stay!” or a “Go!”  Now you can fill in the Short Answer you were unable to reach before.

See how it clears the air to be so methodically rational? But of course that’s just a hypothetical, to show you how it works.  Since we’ve already agreed that nobody here is thinking of fleeing the nest, let’s try something more likely to occur in day-to-day life.  How about: whether you should subscribe to an expensive concert series you’d love to attend but would have to charge because you haven’t got ready cash right now?  Or whether you should accept a nomination to chair something, be president of something, supervise something — when you’ve got enough on your plate already but don’t want to offend, disappoint, be ill-thought of? And like that.

If in the end you conclude you don’t want to be rational about it, that’s fine.  That’s a Short Answer, too.  See how considering what would be involved in a rational decision has helped you come to an irrational one? Now you know exactly what you’re doing, and will be able to answer any questions about it directed to you in class!

LESSON FROM LAW SCHOOL

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In England I believe it’s called “reading law.” Here in the United States, it’s just “going to law school.” But you need four years of college and an undergraduate degree in order to apply.

However, unlike most other graduate programs, and contrary to what you may have thought, law school is much more a glorified trade school than an immersion in complex higher thought.  It’s true that the J.D. (juris doctor),  when finally acquired after three years of supposedly learning how to practice law, does not yet entitle you actually to practice it.  (Except in one state — Wyoming or Montana, I forget which.)  There’s another hurdle ahead: you must take and pass one last big test in a state or states of your choosing.  And that’s what you really need the J.D. for.  It’s your entry ticket for “sitting for the bar.”

“Sitting for the bar” means you register to take, and then actually take, a two-day examination (three-day if you’re doing two states at the same time) — each day’s part being six hours in length, with an hour’s break for lunch and for standing in long bathroom lines. It’s administered in a huge aerodrome or covered stadium designated by the state in question as the place where its bloodless torture takes place twice a year.  [The size of the venue is driven by the fact that as many as 1500 newly minted J.D.s may be taking the exam at the same time. Plus the ones who failed their first or second try and have to try again.]

Only when you’ve at last “passed the bar” may you finally proceed to practice law (and find out how little you really learned about it in school) either by (1) becoming an associate at a private law firm; (2) finding a municipal, state or federal government job as a lawyer; (3) going “in-house” as a member of the legal staff of a corporation; or  (4) “hanging up your own shingle” (quaint phrase), usually because the other three possibilities didn’t pan out.

But let’s back up. I don’t know what’s involved in learning how to be a plumber or electrician, but I imagine the subject matter to be mastered for those trades must be broken down into manageable bits. So it is in law school.  Allegedly learning how to be a lawyer is broken down into various subject matters to be mastered, most of them in year-long courses.  Although the specific choice of first-year course work may vary from law school to law school, during my first year we took four courses that ran from September through May — Property Law, Contract Law, Tort Law, Civil Procedure — plus a fifth, Criminal Law, that was tested at the end of the first semester and replaced in the spring by Constitutional Law, which was tested at the end of May together with the four that had run for the whole academic year.

That’s right, five examinations at the end of the first year — and  the first and only examinations we would have on those five subjects. Each exam lasted three hours, and consisted of three complicated hypothetical situations which between them raised every possible issue that had arisen in any case discussed or even mentioned in that course since September.  We were advised to write for an hour on each hypothetical, but for no more than an hour, quickly identifying and explaining every issue we had spotted. [Bathroom break? Take it at your peril!  Leaving the room meant less time to write, fewer issues spotted.]  Brilliance on one hypothetical did not compensate for ignorance on another. Failing an exam meant having to repeat the course.  Doing poorly in any exam adversely affected one’s class rank — an extremely important consideration in securing a first job.

Understandably, there was much growing tension in the classroom as the weeks of May rolled by.  Many of us were there on federally funded student loans, which would need to be repaid irrespective of the outcome on these exams.  Others were the first in their families to go to graduate school.  Not making it would mean not making a family’s dream come true. The school had thoughtfully provided a ten-day study period following the end of classes before the first exams were scheduled to take place.  But how do you study when you’re too nervous to focus on anything except the possibility of impending doom?

The youngest of our professors was an attractive woman who was a bit past thirty but certainly no more than thirty-five.  This was only her second year as a member of the law faculty.  She had taught fourth grade for a few years before going to law school, and brought a touch of the kindly and patient manner with which one instructs young children to teaching us, which was perhaps an error of style when addressing a roomful of twenty-somethings, plus me.  What’s more, although she taught Civil Procedure, she had never actually practiced law.  She may not have even sat for a bar. She was slender, shapely, had great legs, and wore high heels to show them off — which was much appreciated by the young men in the class but did nothing to enhance her reputation as a professor to be respected for her knowledge.

On the final day she met with us, she did a quick review of what we might anticipate could be on the Civil Prodedure exam.  At last she put down her pointer and her chalk, turned to us and said she knew we were all very nervous.  She had been through it herself not so long before, so she understood completely.

And then this pretty woman with the gorgeous gams said something so important, and so applicable to every other aspect of life that I’ve never forgotten it, although by now I’ve forgotten almost everything else I memorized that year.  “You may be so nervous,” she said, “that you’re too nervous to study.  So this is what to do.”

Now no one was looking at her legs.  We were all listening very carefully.

What you should do when you’re too nervous to study,” she said, “is study. And then the nervousness will go away.”

I was nearly fifty-two, hadn’t taken an exam (except the one in Criminal Law) for twenty-seven years, and “nervous” doesn’t begin to describe my state of mind.  My husband was out of work, I had two adolescent children, I had done this all on loans.  But I took her advice.  And studied. And studied. And studied some more.  And the nervousness did go away.

When the class rankings were posted that summer after the grades were in on all five exams, I found myself tied for first in a class of 345.  That rank opened doors for interviews in major Boston law firms, despite my age. One of those interviews led to a job that brought money into our family again, paid for braces, good private schools, music lessons.

That’s why what I heard on the last day of the Civil Procedure class in May 1983 was the most useful lesson I learned in law school.  Try it yourself.

When you’re too nervous to do something, do it.  And the nervousness will go away.

And then who knows what good things will happen next?