BlawgCoop Welcomes Mother In Law!

Welcome to Mother In Law, the most recent addition to the BlawgCoop, the co-op for law-related blogs. LawMom has moved to BlawgCoop from her old home on a for-profit blog service where she was feeling the pinch of a monthly fee. She'll be starting law school this fall, and like many other law students, she was concerned that in addition to taking time away from studying, that monthly fee meant her blogging was also taking money away from her wallet. Her solution? Move to BlawgCoop and blog for about as close as you can get to free!

LawMom joins Half-Cocked, Divine Angst, Bad Glacier, Legal Fictions, and Blawg Wisdom at the 'Coop, and if you'd like a Movable Type or Wordpress blog w/very little cost or hassle, you're always welcome to join them.

Posted 02:59 PM | Comments (1) | TrackBack | meta-blogging

OPML: Outlining the Law

You may recall that I've been interested in the new OPML Editor and what it can do for lawyers—I wrote first about it here, then again here. Here's a small example of what I mean when I say that OPML could be a great thing for lawyers:

The other day on my experimental OPML blog I posted the U.S. Constitution in OPML. If you click that link it will show you the plain-text code of the outline, but CasdraBlog has a nice screenshot of what it actually looks like in the OPML Editor. I put the text of the Constitution into OPML format months ago via NoteTaker, the outliner I use daily for a zillion things, including taking notes in law school. I got the original text file from the ACS, then just added outline breaks in the appropriate places to make it an outline in NoteTaker.

Now compare the above OPML file to this version, created by NoteTaker for web use. See how the online version mimics the functionality of the OPML version? Click a plus sign to expand a section, a minus sign to collapse it. With a few clicks, you can view the entire document collapsed into a few lines, then you can expand whatever section you're interested in down to the smallest level of detail. I find this a great way to cope with a large amount of information. The collapsed view allows you to see the big picture, and then it makes it easy to get to just those things you care about in a large document.

This provides a good, albeit small, example of how well the law and outlines work together. Almost all legal writing—from memos, to briefs, to motions, to appeals, to judicial opinions, to statutes—is in outline form already, but until now we haven't really had any other option but to represent those outlines in a flat, always fully-expanded linear, way. OPML gives us a way to make those documents much more functional and efficient to use. Imagine just a single set of statutes translated into OPML: The next time you have to refer to Chapter 8, section 3(A)(ii)(c) would be a lot easier if you could collapse everything around it to focus only on that section, don't you think? Then, at a glance, you could easily see the code sections before and after the one you're looking at and scan around much easier than you currently can w/most digital versions of statutes. This would give the online versions of code the same functionality as the book versions except that OPML outlines have the added advantage of actually being indented like outlines are supposed to be. Novel idea, huh? Now, imagine a Lexis or Westlaw-type research service that was just a bunch of interlinked outlines. Think of looking at a long journal article, or an AmJur entry, or even a long opinion, and being able to collapse the whole thing with a few clicks down to just its section headings. That way you could see at a glance if it's likely that the document contains the information you're seeking. If a section looks promising, expand it to its subheads and see if any of those look good, and so on until you've found what you're looking for.

Wouldn't this be great? Or am I just outline-crazy?

Posted 02:31 PM | TrackBack | opml

Notes on BSG: “The Farm”

What, you don't watch Battlestar Gallactica? What's wrong with you? But that's ok; I watched, and here's what you missed:

Geez, Starbuck, are you hot for every guy who looks like Apollo?

Yay! EJO (Captain Adama) is back! But why is he being so stupid about wanting to be enemies w/the president? Come on, man, don't follow Tie's lead! Just because he screwed everything up doesn't mean you have to be stupid, too.

No. You can't kill Starbuck. EJO just got well and now you've shot Starbuck!? Quit screwing w/us, Mr. Moore!

Can you love a machine? I love my computer. Does that mean the Cylons are just machines?

Does Starbuck even have the Arrow of Apollo? That's why she was going back to Caprica in the first place, right? I haven't seen that damn thing in a while. I guess she's too busy getting jiggy w/Cylons like Anders, the Pyramid player who led her into the ambush that got her shot! Listen Starbuck, you're the reason I watch this stupid show. Quit screwing around and get back to the damned battlestar so we can have more witty repartee between you and Apollo and EJO and Tie!

OMG! Starbuck's being treated by Cylons!? Yikes! And they're doing sick fertility experiments to try to reproduce themselves!?

We learn about another one of the 12 Cylon people types (the doctor), so we now know 5, L says. But then Boomer/Sharon saves Starbuck, so does that mean the Cylons can actually be good?

And why is EJO crying over Boomer? Is he cracking, or what?

Ok. so now Starbuck's got the Arrow of Apollo. Anders gave it to her—he saved it special for her. How did he know to do that? Does that mean he is or isn't a Cylon? And why don't they just load everyone onto the heavy raider and jump back to the fleet?

Speaking of which, what is Starbuck going to do when she gets back to the fleet and finds that in order to give the president the arrow she has to join a mutiny against Adama? Big conflict coming down the pike, people! But at least Starbuck is alive and finally getting the heck off Caprica. I'm so tired of the Caprica plotline!

But we can't just get the fleet back together happily and safely, can we? No, of course not. That would just be too conventional or whatever, right? So now 1/3 of the fleet has headed off to Kobol and Starbuck is going to have to go searching for the president against Adama's orders and the only thing good about that is that then, finally, Starbuck and Apollo will be together as part of the “religious” rebellion and we can finally get the Starbuck/Apollo relationship/repartee we've been missing. Plus, I'm sure we'll get some good Adama/Starbuck give and take along the way, and maybe a few jabs with Tie, so really, there's a lot to look forward to here.

So there you go; that's it for this week. If you want to follow the action in more detail, be sure to check out the BSG podcast w/producer Ron Moore. Good stuff. I'm also told the TWOP forums are a great place for all the gos, but I really wouldn't (cough) know.

Posted 11:16 PM | Comments (7) | TrackBack | tv land

Can Courts Trust Forensic Science?

Not surprisingly, the answer is: Yes and No. To hear a discussion of the current state of forensic science, check out today's edition of Science Friday. It doesn't look like that show is online as of this writing, but you can subscribe to the podcast and get it automatically once they put it online.

Posted 03:03 PM | Comments (1) | TrackBack | crimlaw

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!)

Posted 11:13 AM | Comments (2) | TrackBack | 2L summer

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. Make eye contact with every jury member. The more eye contact the better (generally speaking).
7. Emphasize the prosecutor's burden to prove every element of the charged offense beyond a reasonable doubt.
8. Don't say “I think” or “I proffer.” The evidence shows. Consider never using the first-person pronoun in closing.
9. 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.
10. 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.
11. Don't use legal jargon like “prejudicial” or “probative.” Use common, everyday language that the jury can relate to.
12. 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.
13. Don't end by asking for a not-guilty verdict. The evidence demands a not-guilty verdict!

This is obviously not all you need to know about making a good closing argument, but I'll bet if you follow all of the above tips your closings will be much improved.

If you've done a few closings yourself: What tips would you add to this list?

Posted 08:51 AM | Comments (2) | TrackBack | 2L summer

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.

Posted 10:35 AM | Comments (3) | TrackBack | 2L summer

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.

Posted 06:26 AM | Comments (5) | TrackBack | 2L summer

Ambits Problems: Suggestions?

Since I reintroduced the new ambits format a few weeks ago I've discovered a couple of problems. The first is that if I try to post ambits w/out posting anything to the main blog, the variable statement doesn't handle it right and wraps the previous day's post into the ambits div. Does that make sense? If you click the image on the right you'll see a snapshot of what I'm talking about. I'm using this code but I don't exactly understand what all of it is doing so I don't know what to change to make this stop. I'd like to be able to post ambits-only on some days when I don't really have anything to say or the time to say it.

The other problem is simply that that code only appears to allow me to display about 4 days worth of posts on my main index page. If you look at that code, can you tell whether there's some variable there to change that? Normally I'd be looking for an MTEntries n=“x” tag, but there's nothing like that in this code. I think it might be replaced by the MTSQLEntries tag, but that's followed by all the stuff I don't really understand. Do any of you w/more web fu understand this? Any suggestions? Thanks!

Posted 07:06 AM | TrackBack | meta-blogging

18-Mile Run/Walk

Marathon “training” continues, such as it is. It's hard to believe I've gone from running zero miles last April to running 18 miles yesterday, but there you go. Except.... well.... I didn't really run 18 miles. I actually ran 10 and walked 8... but it wasn't my fault! I could have run the whole thing, I'm very sure of it, but I was the “designated driver” in our group which meant that if anyone had to slow down or stop or whatever, I was supposed to stay with them and make sure they made it in ok. Sure enough, at 10 miles, one of my fellow runners had a little problem and had to stop running. She was ok to walk, but running just killed her. So we walked. For 8 miles. I learned that it's not too hard to walk 16-minute miles and I know that for the Marine Corp Marathon you just have to be sure you do the first 20 miles at an average of 15-minutes/mile or better to finish (they reopen the first part of the course to traffic after that point) so if I can just run a little in the first 20 miles I should be fine.

I kid! I'm going to run the whole thing, ok? So, but anyway, it was a little disappointing to not get to run the whole thing, but the good news as that the woman I walked 8 miles with was very entertaining so the time passed quickly. The strange thing was I felt just about as sore after running 10 and walking 8 as I felt two weeks ago after running 16. What's up with that?

So hey, just as the running continues, so does the fundraising! If you'd like to help out you can donate here. Or, if you've got more time than money, how about [nevermind. This has been edited to comply with commercial restrictions]. Since all proceeds go to the Whitman-Walker Clinic it's a simple way to contribute. Thanks!

Posted 06:58 AM | Comments (1) | TrackBack | marathon