Kacey Chappelear Rocks!
Speaking of the interns I worked with over the summer, I also wanted to say thank you to all of them for helping to make the summer great. “Our” office has an excellent internship program, complete with the mock trial exercises I mentioned in the last post, as well as an office softball team and some great parties over the course of the summer. This, as well as the nature of the job, attracts some truly dynamic, entertaining, accomplished, and outgoing people. This summer the office boasted interns from GW (obviously, but I wasn't the only one), Georgetown, American, UVA, and Vermont Law. We also had one outstanding intern from OSU—the inimitable Kacey Chappelear, intern, softball queen, runner, field hockey player, and public interest law leader extraordinaire. Kacey was a joy to work with—smart, witty, and always dressed to the nines, she regularly put the rest of us to shame. She can also play a mean game of beer pong (so long as she's not being Sullied at the time), and is guaranteed to be the life of the party so long as she has plenty of Liquid Gold™. (Oh, and her brother is also a mysterious movie-star who says that “Life is just a bunch of people, living, waiting until they die.” So true.) Thanks for a great summer, KC, and best of luck in Ohio! In other words: Wahoowa!
(Disclaimer: I enjoyed working w/all the interns in our office, but KC was the only one who wanted her name on the blog. Special shout-outs also go to my fellow fervent Harry Potter friend (OMG!) and to JG, the only other 2L in the bunch and the intern with whom I had the pleasure of working closely on a big bad case for about half the summer. Finally, thanks to the Scoplaw, who was truly a pleasure to work with—I only wish we'd had more time to plot our legal revolution!)
Notes On Closing Arguments
As part of the summer job experience all of the interns in our office participated in a series of mock trial exercises over the summer—all of the interns except me, that is. I'm a slacker; what can I say? But the real deal is that I did it last year and since they were using all the same materials and fact pattern it just seemed a little silly to do it all again. At any rate, the mock trial culminated in the closing arguments which the interns gave in an actual courtroom before a jury comprised of the attorneys in the office. Everyone did a stellar job and I learned a lot by watching them. After each one, the jury critiqued the performance and gave each closer some helpful advice. The following are a few of the tips that were repeated frequently and that I wanted to remember for my own future closing argument preparation.
- Should you start by thanking the jury? It seems people disagree about this. The jury might be impatient for you to get to the point.
- Trilogies are effective. For example: “Ladies and gentlemen, I'd like you to consider three facts as you head into the deliberation room.” Then go through each fact—one, two, three. It makes your closing more focused, and easy to follow and remember.
- Don't talk about “cops” to the jury. They're “police” or “law enforcement officers.” Juries aren't usually big on dissing the, um, cops.
- Don't talk about a “story” unless you're referring too the load of crap the prosecution is selling. You're not telling a story, and your client isn't telling a story; you're both telling the truth. Present your theory as fact and show the jury how the evidence proves that your theory is factual.
- Don't ask questions or leave conclusions open. Tell the jury what every fact and piece of evidence you mention means and the conclusions they should (logically and unavoidably) draw from them.
- Make eye contact with every jury member. The more eye contact the better (generally speaking).
- Emphasize the prosecutor's burden to prove every element of the charged offense beyond a reasonable doubt.
- Don't say “I think” or “I proffer.” The evidence shows. Consider never using the first-person pronoun in closing.
- Don't speak in the future tense in the closing about evidence the jury is going to hear. They've heard it; talk about what they heard and saw.
- In your preparation, think about the unanswered questions from the trial and answer them for the jury in your client's favor. Don't leave holes for the prosecution to drive through on rebuttal. If there's something that's unclear or uncertain, have an explanation for it in closing.
- Don't use legal jargon like “prejudicial” or “probative.” Use common, everyday language that the jury can relate to.
- Use the important jury instructions for your case—read and interpret them for the jury so they will know exactly how they should apply those instructions.
- Don't end by asking for a not-guilty verdict. The evidence demands a not-guilty verdict!
If you've done a few closings yourself: What tips would you add to this list?
Thank You, Your Honor
Done. My 2L summer job is over. It was over yesterday, actually, but instead of thinking too much about it we decided to take the new car for a drive and the dog for a swim so we went to Quiet Waters Dog Beach outside of Annapolis. The doggie, she does love to swim.
But, and so, I;d like to offer some sort of look back at the summer, to say some of the things that I felt unable to say as I was going through them, but I'm still not sure what to say.
I did end on something of a high note, though. As expected, one case I was working on got nol prossed. The prosecutor moved to nol pross, the judge asked if I had any objections, I said “no, your honor,” and he said, “Congratulations Mr. Imbroglio, you just won your first case.” Hooray! And it's true, in a technical sense—a nol pross is certainly not a loss since it means charges are dropped and the client is free to go. Of course, it also means that if the state gathers more evidence it can bring the charges back, but this wasn't the type of case where that was likely to happen so I'll call it a win.
In order to get to the nol pross I had to convince the prosecutor that she had no case. I thought it would be easy—my client was charged with trespassing but his name was on the lease for the property on which he supposedly trespassed. Since you can't trespass on your own property, he simply committed no crime. Sounds pretty self-explanatory and hard to argue with, doesn't it? Apparently not if you're a prosecutor. When I showed her a copy of the lease w/my client's name on it and explained the situation, she looked a little shocked and turned to the arresting officer and asked, “is that true?” Um, huh? Cops don't know the law, Ms. Prosecutor—that's really your job.* The cop didn't know, so the prosecutor asked, “Can we still get him?” Again, the cop didn't know. So I told them both.
“You can try,” I said, “but the law is pretty squarely against you here.” Then I made my mistake. “If you want to get a leaseholder off of some property the only legal means would be landlord tenant law, but not trespass.”
A lightbulb seemed to flicker on in the prosecutor's head and her mouth firmed back up into a thin smirk of satisfaction. “Fine. Then we'll evict his mother,” she said, an edge of threat in her voice. I didn't know what to make of that; did she really expect me to advise my client to plead to a crime that was not a crime because she was threatening to evict his mother!? Whatever the case, the cop was right there with her. “I'll call the landlord this afternoon to get it started,” the cop said. Great. Awesome. I had to open my big mouth.
But it's not so bad, I think. For reasons I won't go into, mom is unlikely to be evicted, but it's likely my client will have to take his name off the lease. That seemed to be fine with him. The point is that my client did not break any law but these two were determined to inflict some damage on him, anyway. I know a simple trespass charge is small stakes, but sheesh. The term “overzealous” comes to mind, if not worse.
The second case—another trespass—also involved negotiating with the prosecutor but this time for a plea. This one was trickier because my client had no real defense except for some possible technical defenses that sometimes work w/this judge and sometimes don't. My client was interested primarily in keeping his job so he either wanted no jail time or jail on weekends only. He also had suspended time hanging over his head from a prior conviction so he was worried about being violated on that, too. I was able to talk the prosecutor into half the jail time she wanted, served on weekends, and no violation on the previous time. My client can keep his job and he's thrilled. It would have been nice to go to trial on that because we had at least a 50% chance of winning and it was unlikely the judge would have given a worse sentence even if we had lost. However, the client was more comfortable w/the greater certainty of an agreed plea—his real priority was keeping his job and we made that happen so I felt ok about it.
As I discovered in my first attempt at representing a client, it's pretty exciting to prepare for a possible trial and then to negotiate with the prosecutor and finally go before the judge. Even if I didn't end up saying much in court, there's little doubt these clients got better outcomes than they would have w/out an attorney and that's what it's about. Something I realized I need to work on is keeping a sort of straight and neutral tone with the prosecutor when he/she tells me what a rotten scumbag my client is and why he really needs X-number of days in jail or whatever. It's easy to sort of get heated about the fact that the prosecutor seems to be acting unreasonably or unprofessionally, but that doesn't really help. The art of arguing w/out really sounding like you're arguing is a delicate one and something I'll need to practice.
Overall, the summer was a good one—not great, but good. I believe I set my expectations too high about how much actual practice I was going to get in court, so that was a little disappointing. As you may recall, I was really unsure whether it was a good idea to spend a second summer at the same office where I spent my 1L summer. When I decided to do it, I had several good reasons, but the top of the list was that I thought my familiarity w/the people and the office would help me get more time in court. There are many reasons that didn't happen, but now, having been through it, I will say that those who advised against this were correct. If I had it to do over again, I would not return to the same office for two summers simply because the chance to see how another office works is invaluable. While I am more familiar than ever w/how the lawyers in “my” office work and what the atmosphere and caseloads are like, I have little clue how these things go anywhere else. This leaves me facing a job search w/less information than I'd have if I'd gone somewhere else this summer. It's not a tragedy, just a lesson learned.
That said, I do feel like I got some great experience and learned a lot this summer. It would have been difficult for the experience to be as eye-opening and inspiring the second time around, but it was still a full and rewarding experience that increased my preparation for becoming a public defender. If anyone in that office reads this: Thank you! Thank you! Thank you!
* Ok. Cops do know some law, generally speaking. Many don't know the difference between a stop and a seizure, and that can end up being good for our clients sometimes, but cops generally have a basic familiarity w/a few points of law that are important to doing their daily jobs. I would not be surprised if many cops knew that you couldn't charge a leaseholder w/trespassing, but the prosecutor should know that, too.
Last Day of This Acquaintance
It's looking like this will be the last day of the summer job. It doesn't absolutely have to be, but it's probably best if it is since clinic orientation begins next week and it's always good to have a bit of time between things and I'm sort of between projects at work and... there are probably other reasons. It just makes sense. Plus, if all goes well, I'll go out on a high note. I'm handling a simple misdemeanor case today that shows every sign of being a slam dunk in our client's favor—the prosecutor may even just nol pros the case which would be great for our client. Of course, that will mean I don't get to practice introducing evidence and making the prosecutor look silly, but, well, we can't have everything, can we?
Besides, I have another matter today that is more likely to be a short trial—my very first! I'll share details if they seem worth sharing. One thing I've learned this summer (and I learned it last summer, too, but this summer the lessons have been even more personal and clear) is that this kind of job often requires you to do a lot of work and preparation you never use. In fact, sometimes the more work you put into a case, the more likely you won't actually have to take the case to trial. That makes sense—if you do a lot of research and write some killer pre-trial motions or gather some excellent evidence, the prosecution is more likely to fold. In that sense your work absolutely pays off—getting the best outcome for your client is the whole point. What you don't use is all that time spent in front of the mirror practicing all that awesome stuff you're going to say in court to win the judge or jury over, or to scare the prosecutor witless. It's actually better if your case goes away before you have to use that stuff, but sometimes using that stuff is fun.
But what do I know? I've still only really handled one case. After I've handled dozens of cases I bet I'll agree the less I have to say in court the better.
I had to clean out my locker at school yesterday so that it will be available to assign to someone else in the coming weeks. It was the first time I'd been up there in months—probably since school ended in early May—so it felt a little strange to be back in the narrow and slightly dark halls of the 3rd floor. It was eerily quiet, as if I was the only one in the whole building, and I was surprised to feel something like, oh, I don't know, could it be fondness for the place? Suddenly it seemed impossible that I'd already spent so much of two years of my life in that place, and that my last year there was about to begin and would be over so soon and that I might never see the place again. As soon as I felt that I immediately checked the emotion. “You will have no reason to miss this place!” I scolded myself. But of course I will. That's the way these things work.
With that in mind, and with the semester really only a couple of weeks away (if you count the two weeks of “orientations” I'll be involved in w/clinic and journal), I'm going to try not to wish my last year away. It's easy in law school to always be thinking ahead to the next goal—finals, the summer job, graduation, passing the bar, whatever it is—and you end up not really being there fully for whatever it is you're going through at the time. I certainly did that last fall, maybe a little less so in the spring. But with only two semesters left, I think I'll slow things down a bit, try to smell the roses, so to speak. That's the plan anyway.
Maybe I should start now by enjoying what's left of summer, huh?
Finally! I represented a client in court yesterday! And while that sounds neat, and it definitely was, it wasn't very exciting for anyone but me. I said very little, did very little, in fact, but it was still cool. It was an agreed guilty plea (which I helped negotiate), which means I basically just had to say “yes, your honor” and “there's also the matter of the capias, your honor,” and “thank you, your honor.” Big deal, right? But hey, we all have to start somewhere.
I haven't said much more about the summer job for lots of reasons. One is that the Scoplaw has been providing a few good updates about the place we both work, e.g.: here, here, and here. No need for us to duplicate stories (although he's getting more than I am this summer in the story department, I think). But there's also the whole dooce thing, which is all too possible in a public defender internship. Check this out. Yeah, I think I'll stay with the minimal disclosure, thanks. What I wouldn't give to see that blog, though...
Sum Sum Summertime
I'm pretty sure today is the official start of summer. It should also be just about the longest day of the year, since it's the summer solstice (I think). The weather here in D.C. is beautiful! I wish it would stay like this for the next three months... But anyway, happy summer!
About that Journal Thing
This weekend was a beautiful one here in D.C. After the last week of brutal heat and humidity, the last three days or so were absolutely heavenly—temperatures in the 70s and low 80s, relatively low humidity. . . to me it felt like October, which is often my favorite time of year. All of which explains why I am so not a friend of the journal right now, because instead of spending the weekend out and about enjoying the terrific weather, I spent it inside at my computer grading procrastinating grading journal write-on competitions. (And look—DG had to do it too!) Oh yeah, sure, I could have done this weeks ago so I would now be free to enjoy this wonderful weekend, but come on—would I do something today that I could put off until tomorrow? Of course not. That would just be too easy and make too much sense.
But hey, instead of feeling bad about being such a pathetic procrastinator I'd rather project my faults onto a terrific little scapegoat and say: Journal sucks. Don't do it.
p.s.: I'm on what is possibly the easiest journal in the history of journals and will actually end up doing very little for my four journal credits and that line on the resume, so in the bigger scheme of things I recognize that this whole journal dealio isn't bad. But I'm not thinking big scheme right now, ok?
Cumberland, Here We Come!
I'll be away for the weekend up in the wild mountains of Maryland. You didn't know Maryland had wild mountains? Me neither, but I'm going to attempt to find them, anyway. I'm into quixotic quests, you know?
A couple of notes for the road:
- Check out this cool new website for Rock Creek Writing. Looks good, doesn't it? Do you recognize the photo?
- John Siracusa is mourning the PowerPC.
- A majority of Americans have become smarter than not.
- Speaking of getting smarter, have you read the Downing Street Memo?
- No link, just an observation: On NPR this morning I heard an attorney who recently worked in the White House Counsel's office say that whatever the “error rate” at Guantanamo (the number of innocent people currently being held w/out charges or any judicial review), it's low and acceptable. I bet he'd sing a different song if he was the innocent one locked up w/no access to the outside world and no end in sight.
In Praise of Portable Firefox
Dear Portable Firefox,
I love you. Love. You are the best thing since... since.... USB drives were invented. The best! I'm working in an office that runs something like Windows 2000 or NT (I'm not sure which) and the tech freaks have locked everything down so that I can't even update IE, let alone install Firefox. Until I learned about Portable Firefox, I thought I was just stuck with IE. And then my good friend Jose gave me a tip and everything changed.
I didn't realize how much it sucked doing legal research on IE until I loaded up Portable Firefox and got to work. Tabs make legal research much more efficient for me—I'm always getting a list of search results and it's nice to open the cases I want to look at in new tabs—way better than a bunch of slow IE windows. And even on a USB drive Firefox is faster than IE. Heaven.
Hosed in Court?
Yesterday I saw a woman show up to court wearing a moderately short skirt and black stockings with the seam up the back of the leg (are these called French stockings?). It made me wonder: Is this supposed to mean anything? Are there rules about stockings? Is it ever appropriate to wear, say, fishnets to court? And what about women attorneys who wear skirts? Are hose required? Is there some code that says bare legs are bad?
This is what I'm reduced to: writing about pantyhose.
But on the subject of court attire, here's another question: What is the meaning of the blue blazer? Is it acceptable for an attorney to wear khakis, a nice shirt and tie, and a blue blazer to court? Or is that not formal enough? Is a suit required?
Trial Question Peccadillos
I got to watch an interesting jury trial yesterday. Voir dire (jury selection) was especially fascinating and I may say more about that later. But one thing I noticed as the trial went on was that the prosecutor tended to greatly overuse the phrases “Did you have occasion to...” or “Did there come a point in time when...” For example, she'd ask a witness: “On or about May 25th, 2005, did you have occasion to look inside your closet?” Or: “Did there come a point in time when you spoke with Joe Smith?”
Why would an attorney ever want to frame questions this way? It just sounds stupid when instead you could just say “On or about May 25th did you look inside your closet?” and “Did you speak with Joe Smith around that time?”
I wonder how many cliche phrases like this lawyers end up using without thinking about it and just because they've heard other lawyers speak this way and think it makes them sound more lawyerly.
Here's a little related lesson from my private book of language peccadillos: “point in time” is almost always a useless and redundant construction. Next time you're tempted to use it (either when writing or speaking), see if dropping two of the three words would really change the meaning of what you're saying or make it less clear. Chances are, simply saying “point” or “time” alone will say everything you want to say. Thus: Did you look in your closet at that point in time? becomes, either: Did you look in your closet at that point? or Did you look in your closet at that time?
Simpler and more concise is almost always better.
(We all have our little hangups, ok?)
Judges should never apologize to the prosecution after delivering a verdict of “not guilty.”
Blawg the summer job? Take II
My summer job starts today. I've thought a bit about all the commentary generated by my post last week about blawgging a summer job, but I'm still not sure what to say about it. Thanks to a fat link from Professor Kerr (that Conspiracy is a flow machine!) lots of people read the post and many chimed in either in the comments or on their own sites (or in comments on other sites). The response was nearly universal: Don't do it. While I understand where much of this is coming from and agree to some extent, I agree w/Cathy that law student and associate blawgs have a positive role to play in destroying the “black box” around the law. For example, I think the Public Defender Law Clerk is a great example of how this can be done. If he/she is hurting clients or his/her own future somehow, I'm missing something.
I also found much of the bandwagoning on the “don't blawg your summer job!” meme depressing for some reason. Although I know it was well intentioned, some of it was patronizing and failed to address the harder aspects of the issue, choosing instead to fall back on a blanket and simplistic “don't!” I understand that lawyers are risk averse when it comes to controlling information because that's part of their job; however, line-drawing is also something good lawyers must do all the time and much of the responses seemed to avoid that task.
That said, I do appreciate all the input and I'm still actually mulling it over. These are just some of the thoughts I've had about this and I'll be thinking more about this as the summer continues. As I said in that original post, I didn't write about anything last year that came even close to raising model rules issues (at least I don't think I did), and I don't plan to this year. I'll write what I can and we'll see where it goes....
Posted 07:01 AM
Blawgging Summer Jobs: Discuss
As spring transitions into summer, the time has come for most law students to prepare for their summer jobs. If you're a law student with a blog, you're probably wondering how much you'll be able to say about your job on your blog. No? Well, I am. And since my class in “professional responsibility” didn't address blogging at all (I can't imagine why), I'd love to hear from lawyers, other law students, professors, whomever, about the ethics and boundaries of blawgging a summer job.
As I see it there are at least two main levels of concern for the summer job blawgger. First, there's the concern about professional responsibility and confidentiality: How much can I say about what I'm doing without violating my professional duties? Generally, Model Rule 1.6 says that you can't “reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by” several different exceptions that probably won't apply to most law students in summer jobs. This obviously means you shouldn't blawg about anything you learned in confidence, but if what you say would not be “revealing” then it's ok, right? I take that to mean that if the information is otherwise publicly available, it's ok to blawg. Unfortunately, it turns out that often very little of what happens in a law office is otherwise publicly available.
The other main level of concern is more prudential: How will what I write reflect on me as a future lawyer and how will it affect my career chances in the future—either with my current summer employer, or with others who might find my blawg in the future? The answer to this seems to depend on the person and the type of work involved. If you're working in a “white shoe” firm somewhere, you probably want to say next to nothing about what you're doing. Nobody wants any light shed on those smoky backroom deals. (Joke!) If you're working in a political advocacy/policy position, you might be able to say a lot more about what you're doing because part of your job is to spread the word about your employer's agenda.
Since I'm working at a public defender's office again this summer, I'm specifically interested in hearing thoughts on what I can talk about in that context. I said almost nothing last year about the different cases I saw in court or worked on, but instead talked mostly about my own impressions of learning the basics of criminal defense. On the other hand, Public Defender Law Clerk has been writing more detailed anecdotes about the cases that run through the jurisdiction he/she is working in. Monica has also written some excellent and detailed posts about working in a PD's office (like this one, where she won a trial!). I don't think any of these posts cross any lines of confidentiality, but I could be wrong. Any other opinions out there?
Generally, it seems that if you're doing cases that play out in public proceedings, you can write about anything that anyone who might have happened to be in court would have learned or observed just by being there and paying attention. This means that it's harder to talk about cases pre-trial, but once there are proceedings in public, there is more that's safe to say. I guess for now the rule I'll be following when I start my job next week is that if I were a reporter on the criminal beat and I could have learned something in that capacity, then it's bloggable. That's still a little vague, but it seems like a good rule of thumb to follow for now.