Tour de Bar Exam

I have not had much time to blog lately. Not only am I mired in bar exam studying, but we had to move over the 4th of July weekend and did not have internet for a week, but we are up and running again. Studying has its good days and its bad days. I am glad the bar exam starts in a week because I am ready for this to be over. I think I am ready on at lease half of the subjects if the exam was tomorrow. I have a week to make sure I have the other half in my head. It was hard to study last weekend because I just wanted to have a day off to do things I wanted to do, but then I remember it was either two more weeks of studying or six months. At least I still have my sense of humor. Last night S found this picture that describes the exact hypothetical our Sales professor used to explain when risk of loss transfers. Imagine you are buying an ice cream cone at the beach and just as the vendor hands it out to you, a seagull swoops down and grabs it out of his hand-vendor's loss because goods not tendered. If you take the goods into your hand, they have been tendered and if the seagull comes in the situation depicted below, you still have to pay for it. I thought he was just making up a crazy hypothetical. I guess I was wrong.

Opening Day

After a week of rain, cold, snow, and general "when is this winter going to end" dreariness, the sun has stepped onto the deck in time for opening day, which just means I would rather be at the ballgame than in professional responsibility class. But it is a bit too early to start skipping class for baseball games. While I am here, I might as well start thinking about the assignment I have to turn in in a couple of weeks, which is a description on my own philosophy of lawyering. Maybe I could just hand in a link to this blog! Speaking of this blog and ethics, I have been wondering what kind of limits a lawyer has on blogging. Certainly, there are plenty of legal blogs, but most of those focus on the state of the law in a certain area. The rules of professional conduct prohibit a lawyer from revealing information relating to the representation of a client. I think blogging about pending litigation would probably be off limits, but what about all of the crazy things I see in court on a daily basis? Because the court is an open public forum, it is probably OK to recount what happens in court, but on the other hand, prosecutors have special duties. The Washington rules of professional conduct 3.8 (f) states:

except for statements that are necessary to inform the public of the
nature and extent of the prosecutor's action and that serve a legitimate law
enforcement purpose, refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that
the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

That would seem to indicate that writing about all of the humorous things that happen in court might fall under the category of extrajudicial comments that have a substantial likelihood of hightening public condemnation of the accused, which is really too bad because there are some stories that I would really like to share, but long before I started this class I had determined that a lawyers ethical commitment is the most important part of being a lawyer. This class is incredibly boring, but ethics seems to be to be so indispensable to the practice. However, getting that down on paper as a philosophy is not easy. It would be easier to just recount the humorous things that people say in court.

Funny Moment

People slip up and mis-speak all of the time. It happens in court pretty regularly. An attorney-that we all find very slimy and stupid-was arguing a Crawford motion last week when ask the court to indulge him for a few minutes while he explained what Scalia really meant. We all already know he is an idiot and instead of actually lawyering he usually just puts on a show for his client, but he appeared especially idiotic when he pronounced Scalia like scale-i-a. And his argument went down hill from there. While his mis-speak can be chalked up to just being a despicable, lazy, idiot of an attorney, sometimes it is simply an accident, or maybe a Freudian slip. Check out the MSNBC reporter Contessa Brewer:


Either she just had a slip up, or that is how her and the fellow reporters talk about the polls in the break room and habit just took over. Either way, it is pretty funny.

New Word: "Slumper"

I learned a new word last week: a "slumper." From what I can tell, this word is familiar to police officers and first responders and is used as a noun. It refers to a vehicle that is otherwise functioning but is stopped at an intersection with a green light and not moving because the driver has passed out. It can be used in a sentence like this: "I was called to a report of a slumper at the intersection of Main and First," or "I came upon a slumper blocking traffic at a green light."

When I read that, I laughed out loud. And in that particular case, you could say it was a "double slumper," because the passenger was also taking a nap when the officer peered into the window.

Getting to Know your Justices

Check out this video of a discussion with Justice Breyer and Justice Scalia. These two justices represent the two major opposing perspectives on constitutional interpretation. Who seems to make more sense? The discussion is particularly void of any specific factual scenarios, so you get constitutional interpretation without the baggage of an individual case. What is interesting is not only the places where they disagree but also the beliefs and perspectives they share. Also, thanks to my faithful reader J. for pointing out some legal humor in a recent Supreme Court Opinion, Lopes v. Gonzolaz, where Justice Souter quotes Alice in Wonderland:

Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Cf. Leocal v. Ashcroft, 543 U. S. 1, 11 (2004) (“[W]e cannot forget that we ultimately are determining the meaning of the term ‘crime of violence’”). Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean “‘just what [he chose] it to mean— neither more nor less,’”5 and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.6

You can see here how Souter is employing his own method of interpretation to determine what the statute is talking about. I wonder if I can quote Alice in Wonderland in my finals? Probably not. Supreme Court Justices get a bit more leeway.

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.

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.