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Tuesday, August 31, 2010


Quote of the Week:
“Why are you nodding your head ‘yes,’ when the answer is clearly ‘no?’ – Professor Cross

I don't remember who was in the hot seat when the professor asked that question, but it could have been any one of us.

Three weeks in, the welcome banners have been ripped down and wadded into trash, the door prizes long distributed and I’m sitting here with my Civil Procedure book and a companion volume of federal rules. To one side are the last two issues of my favorite magazine, still in the shrink wrap, along with an arsenal of brightly hued highlighters and Post-It flags that are not yet fully incorporated into my note-taking strategy.  On the other is a shoebox containing the remnants of a care package from my friend the organic gardener, who resorted to mailing the cherry tomatoes I requested when it became clear I couldn’t work a trip to her house into my schedule.

And something tells me they’re still taking it easy on us.

But while law school is taking on an unmistakable resemblance to work, I'm aware of an odd contentment I haven't experienced in a long time, a sense of momentum that comes with letting up on the throttle and allowing that needle in the brain to quiver in the red.

Whether by design or some kindly alignment of the planets, I ended up with a nominal amount of work for the weekend, a circumstance which gave me some time to reflect upon what I’ve learned. At this point, my body of legal knowledge consists mainly of some disjointed concepts, threads of what I’m told will eventually acquire some cohesion and weave themselves into a tapestry.

With that in mind, say you covet a piece of property.  My evolving grasp of adverse possession would suggest that you could throw a fence around it and, in the event no one notices for 15 years, claim it as your own, provided you’re willing to live with the stigma of being a land pirate. You wouldn’t want to try that just anywhere, though, and that’s one of the things about the law. What stands in Georgia doesn’t hold water in Minnesota. Then again, I could be wrong about the whole thing. Like I said, the concepts are all swimming around up there and my contracts are bleeding over into my torts.

And that brings me to my runner-up for Quote of the Week, courtesy of Professor Tomain:
“That’s the problem with the law -- there’s so much of it.” 

Sunday, August 22, 2010

Do the math

Because I believe it’s more effective to quantify one’s condition than to report some general state of being, I’ve compiled a few figures from my first week of law school:
  • Combined weight of the books, binders and luggage-like conveyances that are either slung over my shoulder or trailing behind me for what amounts to several hours a day: 38.5 pounds (That does include a couple of arguably non-essential items like my water bottle and my Red Delicious apple, but does not include the 12th-edition torts volume by Prosser, Wade & Schwartz, which I did not have with me when I weighed the rest and which, incidentally, is the centerpiece of a potential claim involving a third-tier locker and a bruised hip.)
  • Distance from the Third Street parking lot to the Brandeis School of Law, including the Eastern Parkway crosswalk I half-jog so the motorists at the stoplight will know I’m mindful that the light could turn green before I reach the curb: I’m calling it two blocks, even though it seems longer because it’s partly uphill.
  •  Number of steps from the foyer of my building to my second-floor apartment: 16
  •   Depth of each step: eight inches
In matters more directly related to the study of law:
  •   Number of pages read: 339 and counting         
  •   Number of amateur case briefs completed: 18 and counting
  •   Number of near meltdowns: two 
  •   Number of actual meltdowns: one 
Minor frustrations aside, I now hold the distinction of having been the first incoming Section 2 student subjected to the Socratic method this semester. Perhaps because I was first, my Property professor lobbed me the softball questions – identify the parties, recite the facts of the case – before he moved on to someone else. His having mocked my nervous enunciation of the word “inviolability” notwithstanding, my performance emboldened me to try for similar affirmation in Torts.
“Foreseeable risk!,” I volunteered. The words had barely escaped my lips before my professor made a face and dismissed them with a wave of his coffee mug.
Turns out that’s the way it is in law school. One day your professor nods approvingly, the next he swats you away like you're a gnat.
We spent a day or two considering the case of Garratt v. Dailey, a case commonly taught in first-year law classes for its usefulness in illustrating the nuanced meaning of “intent.” In that 1951 case, an elderly, arthritic woman named Naomi Garratt sued Brian Dailey, a 5-year-old boy who pulled away a chair in which she was about to sit. I won’t go into detail. I will say that, having once made a living as a wordsmith, I’m used to parsing subtle distinctions in language. But analyzing myriad variations in syntax and applying them to a sliding scale of subjective terms like “reasonable,” “substantial” and “ordinary,” is something new.
I’ll also say that all this heavy lifting means I could develop some impressive biceps by semester’s end. I hope so. It may be too late to get even with Naomi Garratt, but Brian Dailey could conceivably still be among the living. If he is and if I ever find him, I intend to beat the daylights out of him.

    Friday, August 13, 2010

    Mind Your Own Chattel

    Today was Community Service Day, the final component of orientation week at the University of Louisville Brandeis School of Law. My contribution was to spend a few hours clearing trash from the riverfront.
    As it turns out, the organization responsible for maintaining the waterfront does a fine job, so the challenge for a time was to spot something other than a cigarette butt we could classify as trash (for the record, you can pick up a lot of cigarette butts and still have nothing but a tiny lump in the bottom of your trash bag). But that was before the nice man who power-washes the concrete barriers below the River Road overpass collared me and a couple of my colleagues and took us to the real trash. He pointed to a heavily traveled bend in the road and offered to buy us pizza if and when we made it back.
    OK, it wasn’t that bad. But it was a good lesson for a handful of would-be lawyers to learn: the way things look on paper isn’t necessarily the way they play out in practice. The best you can do is react to the curve and remember what it is you’re there to do.
    Law-school orientation was not unlike indoctrination into a cult, and I mean that in a good way. Not only were we welcomed with enthusiasm, praised for our politeness and reassured as to our potential for success, we were introduced to a formality of conduct, a certain respectfulness we’re expected to employ in our dealings with people. We also have been equipped with practical tips for developing good study habits and strategies for coping with stress (Among the printed material we received this week was a slip of paper bearing the phone number for a local scooter service, just in case any of us are prone to excess).
    We were still clutching our new law-school coffee mugs, our T-shirts and backpacks and flash drives, when they slipped a little castor oil into the ice cream and asked us to read and brief our first two cases. The first turned on whether dust qualifies as a tangible object (according to a 1999 Michigan appeals court, the answer was a qualified no), while the second posed a similar question about electronic computer signals (one federal judge in one 13-year-old Ohio case says yes).
    They say it happens to all law students eventually, but I’ve already noticed a subtle shift in my thought process. By Thursday, when I had a frustrating encounter with a well-meaning friend, my fleeting inner monologue went something like this: “Do my frayed nerve endings qualify as chattel (that’s Biblical-sounding legalese for personal property) and, if so, does your traipsing on them constitute an act of trespass for which I might recover for the diminished enjoyment of my life?”
    At least I know the answer. I’m learning that, in law school, the questions are hard, but the answer is always the same:
    It depends.
    I don’t know how I’m going to finish all the reading I have to do this weekend. But the number of cigarette butts on the waterfront tonight is something less than it was this morning, and I’m feeling pretty good about that.

    Friday, August 6, 2010

    First, we kill all the lawyers

    By this time next week, I may or may not have cut the price tag off the first suit I’ll have had on in 10 years. I’ll have submitted for scrutiny my first attempt at a case brief, loaded my new rolling backpack with the most expensive books I ever expect to own, vowed to uphold an established code of conduct and, at about this time of day, expect to be picking up trash along the riverfront to demonstrate my commitment to public service.

    After that, so I’m told, things get busy.

    I will be what’s know in law-school parlance as a 1L, my feet soundly planted on the first rung of a ladder that, barring unforeseen complications, each of us is hoping will lead to our being licensed to practice law.

    When I consider the arduous nature of it all, I think of an encounter I had over the summer. I mentioned to a friend I was going to law school and he looked at me as if I were holding a knife to a puppy’s throat.

    “You would do that?” he whined.

    To be fair, my friend was fresh off the heels of an especially contentious divorce. But it set me to wondering why the legal profession is so often vilified in the public psyche and, given that it is, why any of us would want to be part of it. As someone who spent a couple of decades as a newspaper reporter, another job that often elicits a what’s-that-smell face from people who ask what you do for a living, I can draw a couple of parallels.

    In both cases, people generally encounter you during the most stressful times in their lives. Secondly, for people who parse language with such fine distinction, practitioners of both professions have been known to muddy the waters a good bit. But that’s because asking hard questions and refusing to settle for surface, black-and-white answers is bound to stir up a little mud. Or, to employ another water-related metaphor, a boat that’s never rocked is bound to rot. It’s true that attorneys and journalists are among those in a position to effect positive change. It’s also true that to do so is to risk a certain degree of backlash.

    The well-known line from Shakespeare’s “Henry VI”—“First, we kill all the lawyers.” – has evolved into an aphorism for what may or may not be a general frustration over the complexity of the law and the people who practice it. Viewed in context, though, the phrase can be interpreted as a paean to the legal profession. The character who utters the phrase, the villainous Dick the Butcher, recognizes that those who would guard the public trust are those most likely to derail his scheme.

    I’m not na├»ve enough to think my high-minded ideas about the good things I can do with a law degree won’t be obscured time and again over the next few years by the arcane and tedious nature of actually studying law. But I like to think I’ll bear in mind the reason I wanted to do this in the first place, which is that, every now and again, you might get the chance to right a wrong. Occasionally, you might even get to do something bold, like, say, work to overturn an archaic definition of marriage.

    So, if my friend still wants to know whether I would actually do that, here’s my answer: You bet I would.