Author: Chris

Attorney & Amateur Golfer

What To Write?

Not sure where to begin, so I’ll just write what comes to mind. I’ve been out of it for a week now. Something used to prompt me to post five times a day, regardless of whether or not people read. Now, I’ve got writer’s block for days on end. It’s killing me. I want to blame law school for taking up all of my time. But, that’s not it. I have time. I want to blame BaRAC and legal writing for messing up my approach, but I could never admit that I let those get to me. So, I’m left with looking inward. What usually inspires me? I was thinking about this in Contracts class this morning, needless detail that you don’t need, but will receive (have already received by now). Get this… my big revelation of the day, week, month, year.

There are other people with similar interests. And other people with different interests. On a basic level, this is blatantly obvious. And I apologize for that. But, from a writer / blogger / human interest it makes everything much more interesting.

You either read because you find what I say interesting or you like me. I’m guessing you wouldn’t read out of boredom. Maybe because you hate me, but I don’t know that many people that hate me. Anyway, the point of this dribble is that instead of trying to write about things that interest me all of the time, I should look around and see what other people are doing.

For instance, the room I’m sitting in has about 80 people. I talk to ten or fifteen of them a day because they’re all in my class. They’re all interested in the law (I hope), but not one is really “like” me.

Anyway, this is me attempting to restart my thinking. More later.

Alternative Liability

Torts was interesting today. We are covering “causation,” which is one of the elements of a negligence claim that the plaintiff has to prove to win a case – kinda. Anyway, to make a longer story short, we were specifically talking about “alternative liability,” which is employed when there are two defendants that are equally liable for a single claim brought by a plaintiff. There are loose restrictions that must be present when using alternative liability, which are:

1. Each defendant must be negligent
2. Proper parties. Generally, there can’t be too many defendants.
3. Harm to the plaintiff.
4. Simultaneous actions by the defendants.
5. Plaintiff can’t prove which defendant is negligent.
6. Defendant has superior knowledge of negligence.

If the plaintiff can show 1-6, or the court finds 1-6 present, then the burden of proof shifts from the plaintiff to the defendant. At this point, if the jury finds for the plaintiff, then both defendants are equally fully liable. That is, if the jury determines that the plaintiff is to be awarded $1,000,000 then the plaintiff can select one of the defendants to pay the full amount. It is up to the defendants to sort out the costs on their own, in a separate matter.

My question is, can the defendants, who are both equally liable, but only one of which will be selected by the plaintiff to pay the damages, attempt to persuade the plaintiff to chose the other defendant?

Zealous Representation

Excerpt from my Civil Procedure book:

The means employed by litigators to achieve victory for their clients regularly involve manipulating people and the flow of information in order to present their client’s positions as persuasively and favorably as possible. This manipulation may involve any or all of the following general techniques:

  • not disclosing evidence that could be damaging to the client or helpful to an opposing party
  • not disclosing persuasive legal precedents that could be damaging to the client
  • undermining or deflating persuasive evidence and precedents that are damaging to the client and are introduced by opposing counsel, by such means as upsetting or discrediting honest and reliable witnesses or by burying adverse evidence under mounds of obfuscating evidentiary debris
  • overemphasizing and present out of context evidence and precedents that appear favorable to the client
  • pressuring or cajoling witnesses, jurors, and judges into adoption views that support the client’s position
  • deceiving opposing counsel and parties about the weaknesses of the client’s case and the vulnerabilities of the opposing party and counsel that have nothing to do with the merits of a given dispute by such means as intimidating an anxious opponent, spending a poor opponent into submission, or “soaking” in settlement an opponent who has public image problems or who for other reasons cannot endure the risk and public exposure of a trial.

None of these techniques is illegal or violates the letter of the ethical rules of the profession. Indeed, the refusal to resort to at least some of these devices may be construed as a breach of an attorney’s obligation “to represent his client zealously within the bounds of the law.”

Midterm Time

I have a lot to do. I was feeling a bit overwhelmed earlier in Contracts, but then I took the big picture approach to everything and decided all will be fine in the long run. I have a Civil Procedure midterm on Friday. It’s take home and we get 24 hours from 3pm Friday to turn it in. That means I get to spend all day Saturday writing about how to bring a case in court. Believe me, I know it sounds fun, but I can think of better ways to spend my weekend. Like watching UM beat Penn State.

Top it off with a research report due Friday at 2pm and we’ve got a great week going.

Time to study. Bought a printer. Go Tigers!

Look Around

Look to the past. Look to nature. Look beyond what you can see. Behind the wall that separates you from the neighbor on the other side. From the world. Look at something weird and different. Something abstract. Something that can’t be defined. Look at a different culture. A different people. A different individual. Look at yourself. Look around the next corner. Look at the second to last page and burn the last. Look . . . I have to go to legal writing. More later.