Evidence 101

My summer classes ended with finals on Thursday and Friday. These finals were much more relaxed than exams during the regular semester. My Evidence final was actually very enjoyable. (That might have had something to do with it being 80% multiple choice instead of a long essay…)

I enjoyed my Evidence class as a whole much more than I expected. Evidence has a puzzle piece sort of feel to it which I like; if one way doesn’t work, you try another until you find a way to make it fit. That is especially true of the hearsay rule, which can be rather fun.

One of the topics we discussed in Evidence was eyewitness testimony. My professor told us of an experiment he did with one of his classes. He arranged with one of his students to allow a “thief” to come in and steal the student’s purse. The woman came into class, made a big scene, took the purse, and left – doing everything slowly and deliberately. After she left, the class discussed the characteristics they had noticed, such as height, weight, hair color, clothing, etc. There was a lot of variation in what the students claimed about the thief.

About a week later, the students were asked to identify the thief. They could choose one of five women: four who came into class  for a line-up or a fifth who was absent (not in the line-up).

The result? Each of the five woman was identified as the thief by 20% of the class. In other words, 80% of the class was wrong. And the real clincher was that the student who had her purse “stolen” and was practically face to face with the thief chose the wrong woman.

So eyewitness evidence is a little scary.

We also discussed the topic of presumption. Presumption is one of those words that’s easy to define outside of law, but can be messy inside the law. My professor gave us four different definitions.

• First, there is the typical non-legal definition: X usually causes Y, so when there is evidence of X, we can presume Y happened too.

• Second, there is a so-called irrebuttable presumption: this isn’t really a presumption, it’s a legal rule that if there is evidence of X, the jury must find that Y happened, even if there is evidence to the contrary.

• Third and fourth are the presumptions that actually affect how the law works: if there is evidence of X, the jury must find that Y happened. But if someone claims Y didn’t happen, someone has to try to prove either that it did or did not. (The difference between the third and forth types of presumption is which party has the burden of proof.)

In law, the word presumption gets complicated because people (e.g., legislatures) use it without defining which type of presumption they mean. Thus, the lawyers end up arguing about it or the court has to make up the best answer it can.

Another evidence topic we discussed is an efficiency tactic called judicial notice. This is actually shortcut to avoid having to prove something. Rather than presenting evidence of the fact, the lawyer will ask the judge to say, in effect, “this is so well-known or obvious that we are going to call it true for the purposes of this case.”

Judicial notice saves time and money. For example, asking the judge to take notice that NaCl is the chemical formula for table salt is much easier and cheaper than bringing in a chemist to testify about it. Judges can take notice of all sorts of things; for example, that a certain date was a Tuesday, that diamonds are hard, that DOG Street means Duke of Gloucester Street, that a city is located in a certain county, that mules are occasionally dangerous, that a given ice cream flavor is usually a certain color, or that snowmen usually have sticks for arms and a carrot for a nose. (Some of these examples are taken from A Modern Approach to Evidence, by Lempert, et. al., West Academic Publishing p. 1400.)

So that’s Evidence. It’s fun.

The weekend after finals was nice and relaxing. Friday afternoon I took a nap (I slept hard for two or three hours). Saturday I attended a baptism for our most recent convert, after which two other recent converts treated me to dinner at the country club. They are so kind and good and friendly. I felt very spoiled.

More Than Adequate

The convenient thing about living in a rainier climate is that every time my car starts getting really dirty, a storm rolls through and washes it off. This week it was especially convenient because I had run out of window washer fluid.

Another bonus about the climate here is that thunder is better in the east. Maybe it’s louder because it doesn’t run into any foothills. Or maybe the storms are bigger because they don’t have to climb over the mountains. Whatever the reason, thunder just sounds better in this half of the country. When I was little, I didn’t understand why people were afraid of thunder. It only started to make sense when I was serving a mission in Kentucky and Ohio. After a night of bed-shaking, heart-pounding thunder, I understood how someone could be afraid of it. I’m still not afraid of thunder, though. I relish a good, powerful drum roll across the sky.

I am not, however, a fan of another consequence of the rainy climate: humidity. The hot and sticky days have started. It hasn’t been too bad yet, but we’ve had a day or two when walking outside was like walking into a wall of air and not having my hair in a ponytail was a bad idea.

***

Over the last year, I’ve heard several remarks about 2Ls and 3Ls not reading for class. One person even expressed surprise that any upperclassmen still did any reading. That was hard for me to believe. As a student I had always done all of my reading. And considering the intense, competitive nature of law school, it seemed improbable that a large percentage of law students were not keeping up with daily reading.

Well, now I know why. Sometimes it just isn’t worth the time it takes. That, combined with a professor who openly acknowledged to the class that she didn’t really expect us to do all the reading, left me skimming a few chapters this week. And, as minimal perusal was adequate for those classes, I’m not exactly averse to doing it again in the future. I doubt I’ll ever give up on the whole concept of reading for class, though.

***

I made a happy discovery this week: a painting by James Christensen titled “A Lawyer More Than Adequately Attired.” The painting is good, but my favorite part is the explanation. It is just so, so true.

Overlap

I feel like I’ve been up to my ears in Evidence this week. No matter how much reading I do, I always seem to have more. Part of that is because we adjusted the schedule and met an extra time this week, and part of it is because condensing a twelve week course into four and a half weeks makes some pretty dense reading necessary.

Amidst all that reading we took a little foray into some fundamentals of criminal procedure (shorthand: crim pro). There was an excellent comment in the reading about constitutional limits placed on lawmakers:

“Yet, presumably, a state could not create a statute [that says]: All persons within 100 yards of an individual killed by force or violence shall be guilty of murder. It shall be an affirmative defense that the person did not commit the homicide.” Extracts from Fundamental Criminal Procedure, 2014 Edition, Fredric I. Lederer, William and Mary Law School.

In other words, Congress can’t say everyone is guilty until proven innocent. The US legal system is built on the principles of innocent until proven guilty and everyone deserves a fair trial. (That, incidentally, is the answer if you ever feel like asking a lawyer how he can defend someone who is probably guilty. The lawyer is there to hold the government to its responsibility and make sure the person gets a fair trial).

Crim pro intersects with Evidence in many other areas. Next, for example, we are studying privileges, which exempt certain people (like spouses or clergy) from testifying in certain circumstances. Of course, Evidence by necessity intersects with all other areas of law.

It’s kind of a fun class for that reason. In my other classes there’s a fictional separation between the subject matter at hand and other areas of law. There have been many times when my professors have responded to questions by saying something like: “That’s a good question. Ask your civil procedure professor” or “That might work if we were in torts, but this is contracts.”

In Evidence you can bring up any area of law you want and it will be applicable. In fact, you can’t get caught up in one area of law or you’ll start forgetting that a type of evidence that seems useless in one area is actually essential in another.

We also have a lot of overlap in Professional Responsibility - with criminal law, of all things. That isn’t because there are huge numbers of criminal lawyers. It’s primarily because my professor is a criminal prosecutor in Newport News and she tells us stories about her cases and clients. It’s not as bad as being in crim law again, mostly because I don’t have to read all the details in written cases. Still, I’m glad it’s only for five weeks and not a whole semester.

On a wilder note, the local animal life is becoming more apparent as we move into summer. This week I saw several rabbits (which looked more like escaped pets than wild animals), I avoided running over a turtle that was crossing Monticello Avenue (I saw it make a surprisingly quick and safe arrival on the other side of the street in my rearview mirror), and I discovered a bird’s nest in the tree outside my front window. And the lightning bugs are out. The first one I saw startled me; it was right by my hand and I thought it was a spark.

Feel free to send me jokes about why the turtle crossed the road. I’d come up with some myself, but I’ll be reading about Evidence.

Grades, Hearsay, and Bugs That Should Never Be In The House

The last piece of my 1L year showed up this week: grades. With one semester a little above and one semester a little below, my cumulative GPA for the year is about 3.0.

Law school has a reputation for cutthroat competitiveness. W&M doesn’t really live up to that reputation; the atmosphere here is best (and appropriately) described as collegial. But there is still an unavoidable undercurrent of worry about grades.

One of my professors acknowledged this last semester as he tried to allay fears about his final exam (on which a good grade is somewhere around 60%, if I remember correctly). “No one gets a C…” he told us with a shrug.

I don’t know if that is always true, but I am content to have a B average.

Truth be told, I’m even a little relieved. That relief goes two ways: I’m relieved that my grades are high enough to still qualify for in-state tuition next year, and I’m relieved to not have the pressure of really high grades. There’s something liberating in knowing they aren’t perfect, but they’re good enough.

The posting of grades gives me one other bonus: now I can clean out that stack of paper I was holding onto just in case of grading problems. (Law school uses a surprisingly large amount of actual paper. That took some getting used to after working in an office that was moving steadily in a paperless direction.)

Meanwhile, after two weeks we are about halfway through summer classes.

In Evidence we’ve just begun discussing hearsay. Hearsay is an out-of-court statement given as evidence (in court) that a fact is true. It has been the bane of law students (and probably lawyers and judges) for generations. The rule has, at minimum, 28 exceptions. It’s like telling a child that bedtime is at 8:00…unless the toys aren’t put away… or unless teeth aren’t brushed…or unless it’s Christmas …or unless there’s a monster in the closet…or unless they really need a drink…

There are good reasons for the hearsay rule. And there are good reasons for the exceptions. It’s just unavoidably messy.

In Professional Responsibility, my most frequent reaction is that the “problem” wouldn’t really be a problem with the simple application of morality. But we aren’t studying morality. We are studying ethics, which is a minimum, fuzzy standard of good conduct.

That being said, I think most lawyers hold themselves to a higher standard than the bare minimum. Yes, there are some who take advantage of loopholes and grey areas (and the legal profession is perhaps more susceptible to that than many other professions), but there are so many lawyers who really want to make a positive difference.

The York River (just outside of Yorktown)

Other happenings for the week include a run/walk through the woods (the volume of foliage here is still amazing to me), a staring contest with a deer in the woods (the deer won), and a nice Sunday drive down to Yorktown (a fun little water-front town which I’d like to explore some more).

I also caught one of these in my apartment:

I still think the bug population here is a bit excessive. 

Wonders of the Ancient and Modern World

This is Zeus:

And this is Babylon:

I spent a few days with them while a member of my ward was in the hospital. On all four legs, they are as tall as my ribs. On two legs, they are as tall as me. They’re both very sweet and calm, unless the cat across the street is in the front yard taunting them:

I’m pretty sure they thought I was boring because I didn’t do anything except read while I was there. My six classes for the week translated into a few hundred pages of reading.

So far, my favorite thing about summer classes is that they are less intense. There are only six or eight people in each class. With fewer people and smaller rooms the atmosphere can’t help but be more relaxed. We are covering a lot of material quickly, but it doesn’t feel rushed. At least, not yet; maybe that will change in three weeks when we aren’t yet done with course material and finals are a week away.

We spent one Evidence class in the McGlothlin Courtroom, where our professor gave us a quick tour of the state-of-the-art features. The courtroom has numerous electronic gadgets for the judges, lawyers, court staff, and jury. It also has a podium that rotates 359 degrees. (It only goes that far because a few years ago an unknown law student demonstrated that three complete rotations would pull out all the cables underneath.)

The courtroom stays up to date by accepting products on loan from various companies, trying them out, and providing courtroom design consulting. The black chairs are among the more comfortable office chairs I’ve sat in (as I’m not a great fan of office chairs, that’s high praise). I also like the light on the ceiling (even if it does lead to a lot of unwanted glare on computer screens).

For one Professional Responsibility class, we had a guest “client” come in (he is actually a police officer in Newport News). He portrayed one of my professor’s former clients and reminded us all that not everyone has the same reasonable worldview that we do. From the client’s perspective, his actions were perfectly within his rights and the Commonwealth of Virginia had no right to interfere. From the Commonwealth’s perspective, the client’s actions were reprehensible (and ultimately illegal).

That class reinforced my aversion to criminal law, but it also reminded me of a thought I had while I was deciding to go to law school. One of my hesitations in going into law was that I might have to defend someone when I knew that they had done something wrong. But then I thought of Christ. One of His roles is being an Advocate. And every single person He advocates for has done something wrong. While I cannot even approach the Savior’s perfect justice and mercy, that thought eased my mind. If I can be an advocate in some small way and do some good in the world, I’ll be content.

Thank You, New Yorker

After a week off, yesterday I started doing homework again. Summer classes haven’t started yet, but law professors typically assign reading for the first day (which is tomorrow). That allows them to jump right into the course material when class begins. That practice is especially applicable to summer classes because they only last five weeks and each class session is long. We have to have something to talk about (besides the syllabus) for our first two hour class.

This looks like the ocean, but it's the James River (see map below).
I stopped by one day during my week off.

My first class is Evidence. It isn’t about how to present evidence for a lawsuit or the best way to prove a case, it’s about the rules that govern what evidence a lawyer can and cannot use. For example, a lawyer cannot submit evidence that is irrelevant, redundant, or meant only to waste the opponent’s time and money.

So far I’m pleased with the textbook for Evidence; it has cartoons.

I was standing in the "you are here" area on the left.
Jamestown is on the right side of the map.

My second class is Professional Responsibility, which is about the law that governs lawyers. One of the main topics is how to balance the needs of a client with the moral responsibility to do what’s right (because those two duties don’t always align perfectly).

This is a Yorktown Snowflower Tree.
You can probably see how it gets its name (close-up below).

I’m also a fan of the PR textbook. In the introduction, it decries the “autopsy method” used in so many law classes in favor of a story problem approach. Rather than dissecting a judge’s analysis of the problem by reading and discussing a court opinion, the book gives situations based on real cases and lets the students do their own analysis. (Ethical Problems in the Practice of Law, 3d Edition; Lerman and Schrag, 2012, p. xxxvi.) Although I don’t know whether either method is more useful or effective, I love the term “autopsy method.”

Flowers on the Yorktown Snowflower Tree.

I also like the PR book because in its list of changes (presumably improvements) from the previous edition, it includes the following: “We have increased the number of New Yorker cartoons from 22 to 31.” (Id. p. xxxvii.)

A sense of humor is a good quality in a textbook.

I have no idea what these are. But they look neat.

Like a Child

This was a hard week, but it started with a tender mercy last Sunday. We had a special Stake meeting because Elder Bednar was in town. It was a privilege to hear from him in that setting; it was more relaxed than General Conference and he shared some personal stories with us. There were some things that I needed to hear, and they came through the stories he shared.

As I’ve pondered over those messages this week, I’ve felt more like a little child than I have in a long, long time. It’s felt like learning to tie my shoes, ending up with the laces in a knot, and knowing that even though my shoes aren’t falling off, the bows don’t look quite the way they’re supposed to. It’s also felt like falling off while learning to ride a bike, feeling sore, and not being sure I want to get back on. I imagine it’s felt the same as learning to walk.

Those messages from last Sunday came with the same disparity of strength and wisdom as a parent would give to a child trying to tie shoes, ride a bike, or walk. It was as if someone was next to me telling me, “You can do this!”, “That try was ok; don’t worry, you’ll do better next time”, and “You’re doing the right thing, just keep going.”

I’m so grateful the Lord sent His servant to bring me those messages.

There were some pleasant events at the end of this week as well. I went on a short walking/ghost tour through part of the colony with some members of my ward (one of the ward members is a licensed tour guide; giving tours through the colony without a license will get you a ticket). The stories were interesting and diverting, and we followed up the tour with ice cream cones at Baskin Robins.

Also, I finally went for my first bike ride of the year, and took a few pictures along the way to document the end of spring. (At least, it feels like the end of spring to me. It’s been muggy and summerish the last few days.)

And, I talked with my mom today, who is wonderful and good. As the primary children sang for Mother's Day in Sacrament Meeting this morning, I wished I could go back to being a child for just a few minutes and sing for my mom in her meeting. Then follow it up with a big hug.