Psychodrama

I came across an interesting article about the use of a psychological technique called psychodrama during trial. Essentially the lawyer works to make himself more vulnerable in order to elicit an emotional connection with the jury. In my last post, I spoke about the use of humorous rhetoric to enhance the power of one's argument, but what about creating an emotional response? Are there limits to the use of humor or emotions? Is it OK to use personal stories of loss and tragedy during voir dire to elicit emotional reactions in the potential jury? To see who will cry? To see who remains stony cold? During my two days of jury duty, one of the criminal defense attorney's spent about 15 minutes leading us through a discussion about how different people make decisions. Do we use our minds? Did we think decisions should be logical or can we use our emotions to make decisions? Do we listen to others when making up our own minds? She was simultaneously trying to feel out the jury pool and trying to inform us of the way a jury should come to a decision. She wanted us to understand that a jury does not make a compromised decision (as is sometimes the case in other venues) but rather a unanimous decision.

The boundary between emotions and logic is an interesting question and I think I will give it some more thought in the coming months. The law requires logic so that we can have equal application. Emotions are too subjective to be used as legal standards, but emotions clearly have a place in the law. More to come. . .

Snow Day and Legal Humor

We had a snow day yesterday! It is true that school was cancelled, but for a Colorado kid, it hardly felt like a snow day. In my neighborhood, we had less than an inch of snow, but in the north-west, it is not the snow that shuts the city down but the sheet of ice that covers everything. The most dangerous part of my travel outside the apartment yesterday was getting down the stairs in front of my apartment which were also covered in ice. Unlike childhood snow days, I spent most of the days studying. I did take a break to sneak downtown for lunch. The city really was shut down; I have never had such an easy time finding a parking spot. I could have had my pick. So, even without the snowmen, having a snow day was pretty nice.

School is back in session today, and since we are heading toward finals, I will not have many breaks for the next three weeks. You may see more posts like my previous one which consists of video clips I have been viewing as distractions from studying. It is important to keep perspective on this whole process.

If you have been reading for a while, you will know that I have had several posts on the topic of legal humor. My general thoughts on this topic have evolved. I no longer think, as I did during my one-L year, that the law does not have a sense of humor. While it is not necessarily easy or appropriate to compare the law to literature or drama, this does not mean humor is absent. Sure, the law is clearly different. Where literature has a metaphorical affect on human behavior, the law has actual effect. If you are sued and you are found liable at court, you will have to pay. Nothing in literature has this kind of power. However, you will only be paying if you do not win, and because one of the most important aspects of handling a case is making good arguments, humor may very well have a place in your toolbox of argumentative tactics. The use of humorous rhetoric is not just the province of bold and creative trial attorneys; there are even examples in the writings of Supreme Court Justices. No matter how we feel about Justice Scalia's style of constitutional interpretation, he is without a doubt the most colorful justice on the court, and his opinions are often the most entertaining to read. I was reading his dissenting opinion in the law school affirmative action case of Grutter v. Bollinger, 539 U.S. 306 (2003) when I came across a fine example of his sarcastic humor. The Majority upheld the University of Michigan's use of race as a factor in creating a "critical mass" of diversity in their law school admission decisions. Scalia responded, including this passage:

. . .If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate - indeed, particularly appropriate - for the civil service systems of the State of Michigan to do so. . . . And surely private employers cannot be criticized - indeed, should be praised - if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The non-minority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand"

This use of humor is cutting and its purpose is not necessarily to make you laugh. He uses humor to make his argument, but by using this type of rhetorical tool, he manages to make his argument both more accessable and more enjoyable to read. If you ust ask about any law student, they will most likely tell you that reading an opinion from the Consevertive Scalia is considerably more entertaining and engaging that an opinion by, for example, the former liberal justice William Brennen. Unfortunatly for Brennen, even if you think you agree with him, you may not be entirely sure because you have no idea what he is talking about in his opinions. Humor clearly has a place in the law, and I wish more justices and lawyers infused their rhetoric with it.

Things you CAN'T do when you're NOT in a pool

This is why I have always liked swimming. I know this video has nothing to do with law or lawschool, but I find it hilarious and this blog could use a little break from teh serious posts.

Problem with comments?

It has come to my attention that there have been some difficulties leaving comments on my blog. This is an unintentional programing glitch. I welcome comments and hope that this glitch has not posed any problems (I am flattering myself here.) I am trying to sort it out, but I am running up against the limits of my own computer knowledge. If you wish to comment, you can always e-mail me at hiltops@gmail.com and I will add it to blog as a seperate post under a title "Comment on '_______'" I will not edit comments any more than I would if it was left as a normal comment. Hopefully this will be resolved shortly.

What's in a name?

There is a reason I blog under my real name. Certainly, there are some risks. What I say in this blog is out in public, which means that I have to take responsibility for what I say. If I blogged under an anonymous moniker, I might write about other thoughts or topics, but the purpose of this blog has always been to chronical my thoughts about law school that I would normally share in a non-Internet forum with friends and family. The blog is simply a different medium. Many people share much more personal information on myspace or facebook than I ever would think of posting to the public, but maybe they are more open in person too? On the other-side, there are also some bloggers who feel their personal safety and privacy would be jeopardized if they used their real name. I think this concern is real, unfortunately. There are some creepy people out there who are looking to abuse innocent disclosures of private information. Therefore, I think I try to strike a balance between putting myself out there under my real name and keeping back those thoughts that would jeopardize my privacy or my job marketability in the future. If I feel good about what I write and a future employer reads this blog and does not like what he reads, it is unlikely I would want to work for him anyway. This is one of the perks to blogging under my real name. By being honest with the world, I am inviting the world to be honest with me, and I believe this standard works out best in the long run. The legal profession requires a standard of honesty and a lawyer plays a dangerous game when he begins to act in less than honest ways. So, I think this blog is a good place to start.

Not all lawyers will understand this. There are bad lawyers. Some are crooks, but others are just stupid. That is the same with all people. On the Internet, for example, there are plenty of crooks, and there are even more people who are just acting stupid. One of the behaviors that is rampant on the Internet is dishonesty. The medium is simply conducive to such behavior. Not all of this behavior is necessarily bad or harmful. Some of it is quite intelligent, creative, or funny. The Anonymous Lawyer phenomenon, that fictitious chronicle of a big firm lawyer, is both intelligent and hugely entertaining. The author's anonymity was part of the charm, and none were harmed by the deception. Another example of creative deception from television is Stephen Colbert's Colbert Report. He plays a fictitious character and part of the humor is getting interviewees, who are not playing a role, to say ridiculous things that play into the Colbert character. I find this show both hilarious and brilliant, and I lay much of its success on the good naturedness of the humor: the guests who are made to look like fools are in on the joke! The "dishonesty" is necessary for the humor, but no one is really deceived and everyone gets to enjoy the laughter.

Compare that to the humor of Sacha Baron Cohen, the mind behind the character of Borat. His humor is inherently disingenuous and cheap. Not only does he rely on dishonestly to make anonymous individuals look foolish, but because this is really more mean-spirited than comical, he has to rely on scatological jokes to make it work. Who doesn't think poop jokes are funny? This means it does not take much talent to get people to laugh with a poop joke. What separates a true comedic genius like Stephen Colbert from Sacha Baran Cohen is that it would be very difficult to emulate what Colbert does. The humor of Cohen on the other-hand is regularly, although admittedly less successfully, recreated by thousands of thirteen year-old boys in prank phone calls. In a prank phone call, the joke is one-sided; If the caller is successful in pulling off the stunt, his actions are harassment and can actually be quite frightening. If the caller is unsuccessful in pulling off his character, then he just looks pathetic.

Before I get to far off on that tangent, I should pull the narrative of this post back on topic. The telephone, the Internet, television all provide new opportunities to deceive. Deception is a necessary ingredient to fiction or drama, but there is a distinction between deception used for entertainment and art and deception used to harass. The new mediums of communication allow greater opportunities for both, but I think most people understand the difference. Borat is certainly funny, but Cohen's humor is not legendary and will soon be forgotten. I do not really feel sorry for his "interviewees," because I am sure they all signed releases before letting their images be used for the film. Unlike art, the law does not, and should not, rely on deception. It relies on good arguments, and it is the lawyer's role to make sure that those arguments are grounded in fact. This requires the highest standards of honesty, and it is for this reason that lawyers are disbarred for acts of dishonesty, in both their professional and personal lives. That is why I blog with my real name -- to say what I mean honestly and to take responsibility for my words. If people wish to critique what I say, they are free to do so, but as I enter into this profession, I expect the same standards of honesty from other attorneys. I do my best to stay away from those incapable of living up to the standards and responsibility of the profession. I like my deception in the form of a novel or some good comedy.

more thoughts on politics

I wanted to add some thoughts to my previous post (see below) concerning voting malaise. That post was written in a more stream-of-conscious fashion than normal and I did not give the topic its full thoroughness. I think everyone who can vote, should vote, and any law student who does not vote has yet to realize just how much politics will affect his/her career. No matter what area of law one decides to practice, from criminal law to real estate transactions, your practice will be effected by politics. The court is an apolitical institution, but everyone knows that judges are humans, and even if they are just following the law, following the law might be different depending on how you interpret the law. In a recent article, our new chief justices, John Roberts talks about how the "high court does not have political preferences," but he has an uphill battle to convince most Americans. The decision in Bush v. Gore did not help, splitting the justices along the lines of what we know of their party affiliations. Even if one's practice nave takes a lawyer into court, it is unlikely you will never deal with some government agency (i.e. Land use regulations set up by the Department of Ecology or the E.P.A.) The heads of those agencies are appointed by the President (federal) or the governor (state.) Those political appointments affect the atmosphere of an agency and have real life ramifications (The new head of the EPA for our region is a former Dow Chemical executive. Whose interests do you think she will favor?) If that is not proof enough that the law is tied closely to politics, let me remind you of the branch of government that makes the laws: the legislature! We now live in an era where the law has become almost entirely a creature of statute. Those statutes are written by the legislature, and the legislature is put in office by our votes. Not only should we all be taking an interest in politics at the federal level, but also at the state--at least enough interest to read a bit on the issues and vote.

Clearly, when you represent a client and in following the laws, we are bound by the laws or a valid constitutional argument that the laws should be overturned. There will always be laws that we, according to our political beliefs, find repugnant. I do not think that everyone should have the same beliefs (although it would be nice if everyone agreed with me) but I think it is incumbent upon lawyers to have a basic understanding of the current political climate and to participate at the most basic level in that political system. It is important for your clients that you understand how and why laws are made and what forces may affect their change.

I think I can put this topic behind me for a while , at least until the '08 election season, which should be in full swing come January.

Voir Dire, Part I

My lack of posting is not the result of being impaneled on a jury; rather, after loosing two days down at the county courthouse, I have been playing catch-up. I did however get to sit through voir dire (the process through which attorneys and judges choose a jury from a pool of individuals) for two trials, one a murder trial and the other a drug possession trial. More than being a distraction from law school, my two days were very educational. I learned a lot by watching how the attorneys handle the pool of potential jurors, and in addition, I learned a lot about the cross section of my community that was randomly pulled for jury duty. I will try and sum up my observations in the next couple of posts:

First, more people than you would think have been victims of a violent crime. 65 people were called for the first trial, a murder/ robbery case. Around 20 people were released right off the bat because of hardship. Most of those individuals either had trips planned during the next three weeks (or so they said) or were small business people/ commissioned salespeople whose livelihood would be greatly affected by missing three weeks of work. From the 45 or so who remained, at lease five had had a gun pointed to their head at some point in there life. When one juror was asked, she replied "which time. . .I have had a rough life." The attorneys were asking these questions because there was a gun involved in the case. The former cop sitting in front of me described multiple occasion of looking down a barrel, and one tall bearded fellow had been an environmental activist who pissed off some loggers. Several others relayed their experiences in private, but this list only included those involved in gun crimes. There were others who had been kidnapped, beaten, robbed, held for ransom, etc. I must have led a sheltered life. I understand that this supposedly random section of society did not include those who had already found their way out of jury duty, but I think more people than we normally think have been victims of crime.

more to come. . .