The Archives
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The News
The Magic Words
Fresh off the testgasm known as the New York Bar Exam, I’m visiting my folks in the Deep South: Atlanta. Everyone’s unflappably friendly here, but I’m convinced they’re secretly trying to kill me with pulled pork and racks of barbecued ribs. The thing is, the folks down here don’t pretend this stuff is even remotely healthy. They just let the food speak for itself.
As far as I can tell, three pounds of slow-cooked porcine perfection doesn’t scream “healthy choice.” There’s something to be said for letting me make up my mind about whether I want to live to see 40.
Now, this Vitamin Water stuff, that’s a pig of a whole different color. There’s an article on the Huffington Post about a recent lawsuit against Coca-Cola over false advertising for Vitamin Water. John Robbins completely misses the boat by calling Coca-Cola’s defense “a staggering feat of twisted logic,” when it’s actually a perfectly mundane and unremarkable legal defense. To explain, it’s best to start at the beginning.
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A Day in the Life
Anatomy of a Law School Exam
Exams are over. They actually finished on December 19th, but one consequence of the intensive preparation and examination period is an aversion to anything even remotely intellectual for a week or two afterward. But now, as my brain cells have emerged from their self-imposed hiatus, I thought it fitting to discuss what drove them into exile.
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Legal Theory
Purchasing Power
Lawyers have specific rules about conflicts of interest. Because of the nature of advocacy, you want your lawyer to have your interests in mind as he earns his paycheck. If your lawyer is also being paid by the other side to have their interests in mind, you’re not really getting advocacy so much as arbitration. (SIdebar: arbitration, by the way, is much cheaper than going to trial, and you can generally get your claim resolved much more quickly.)
The other big concern, of course, is keeping confidential information that your lawyer has confidential. To that end, not only is a lawyer prohibited from representing both sides of a conflict, but every other lawyer in his firm is prohibited from representing his opponents. And not just within the same trial, but in any two trials (about the same legal issue) where two clients have diametrically opposed interests.
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Legal Theory
My Professor Says Hearsay Is Pretty Simple
During a trial, a lawyer isn’t permitted to speak directly to the jury outside the opening and closing statements. But the opening statement is (theoretically) a preview of the evidence, and the closing statement is a summation of the evidence. So to actually present the evidence, lawyers use witness testimony. ”I saw the robber point his gun at the victim.” ”The blue car ran a red light and hit the plaintiff’s car.” And so on.
A lawyer also gets a chance to discredit the testimony of her opponent’s witness by asking things like “what kind of gun? How far away from the robber were you? Were you behind the victim, or behind the robber? How dirty were your glasses?” or “Were you watching the car, or the light? Where was the plaintiff’s car? My client’s car has a dinosaur sticker on the bumper: did you see any such sticker on the blue car?” Now we get to hearsay.
Hearsay is, briefly, testimony by proxy. The witness is not telling the jury what he saw: he’s telling the jury what someone else claims to have seen. This is problematic for a number of reasons.
Almost Legally
Will work for Evidence outlines
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Just got my first email addressing me as Professor Mauro. Oh, I don't think I'll be correcting this person just yet.
