Constitution Day

By

-

September 17, 2013

September 17, 2013 marks the 226 anniversary of the United States Constitution. Every President, Congressman, Senator, Judge, Soldier, Sailor, Civil Servant and Attorney has taken an oath to uphold and defend this document.

I always stand a little taller whenever I hear:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Constitution Day is just as important and the 4th of July. The Declaration of Independence was the kick-off to our country becoming the United States of America, but we would not be the United States of America without the Constitution. It is literally the document that binds us together, ensuring each of us are protected under the laws of the United States.

We also should never forget those who paid with their lives to defend our Constitution.

The History Geek

We briefly experimented with the Articles of Confederation after the Revolutionary War. It was a long lesson of how not to have a government. The Articles of Confederation were a failed experiment due to the inability to have any sort of national unity, the ability to tax or pay off debt. If left in place would have caused nothing by disunity, as states became their own nation-states.

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.

Alexander Hamilton, The Federalist Papers, No 15, December 1, 1787

We Americans are a funny lot. The Constitutional Convention gathered with the intent to fix the Articles of Confederation, not draft a new Constitution. The fact this was pulled off is an impressive testimonial to James Wilson, James Madison and the other Founding Fathers. Somehow, Ben Franklin did not leak the Convention’s plans while drinking.

Nothing in America gets done without debate and usually name-calling. James Madison, Alexander Hamilton and John Jay wrote the Federalist Papers arguing for the Constitution under the pen name Publius. Ironically, one of the complaints was the fact the Constitution’s preamble said “We the People” and not “We the States.”

What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

James Madison, The Federalist Papers, No. 51, February 6, 1788

The ratification battle was won, but the first order of business for the first Congress was establishing the Bill of Rights to ensure greater protection of personal liberty.

The Legal Geek

Why should we celebrate Constitution Day? Because many of our rights as US citizens are completely misunderstood by many of our countrymen. There is also the very real fear many of our rights are being eroded.

Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.

Chief Justice John Jay, Georgia v. Brailsford, 1794

Case in point: After the Boston Bombing, a self-identified liberal told me that “foreigners” do not deserve the right to counsel or a trial. She did not care the suspect in the attack was a naturalized US citizen. The Constitution should not apply to “them” in her worldview.

No, No and No. The Constitution protects everyone in the United States. Even the people we do not like that are charged with crimes. You have the right to be protected from unlawful searches; the right against self-incrimination; the right to counsel if charged by the state or Federal government; and the right to a trial. These rights are not simply suspended out of anger or fear. These rights must be applied to all, to ensure that no one is denied the equal protection and due process of law.

There is another issue: the expanding powers of the Government in the name of law enforcement and security. We have seen government agencies, both Federal and state, decide for themselves that the 4th Amendment does not apply to them. These cases include: U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010), where a GPS tracking device was put on a car parked by the police on a driveway without a warrant; the DEA’s Hemisphere Project, where AT&T employees paid by the DEA turn over call history via an administrative subpoena issued by the DEA, not a judge; to 1.5 million Americans being subject to a single search warrant issued by a secret court.

I did alright in both Criminal Procedure & Constitutional Law. I always thought the text of the 4th Amendment was pretty clear when it came to probable cause and warrants:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If law enforcement has probable cause, then get a warrant. That being said, I am still stunned there was one warrant to cover 1.5 million U.S. citizens.

Our Constitution is supposed to protect every US Citizen and those in the United States. It is not selectively applied. We attorneys have a duty to help educate the public on our rights. We also have a lot of work to do ourselves in ensuring all of our rights are protected. We do not want to wake up one morning to see our justice system has mutated into the Cyber-Star Chamber that would fit better in Oceania and not America.

So, my fellow attorneys sing the praises of our Constitution to your friends and neighbors. Never be afraid to fight for the Constitution. After all, we took an oath to uphold and defend it.

Back to the History Geek

September 17 is of historical note for the Civil War battle Antietam; Operation Market Garden in World War II; and the roll out of the Space Shuttle Enterprise. Of less historic note is it is also my birthday.

The Packers Need a Good Attorney

By

Jessica_alegalgeek

-

September 15, 2013

0

The Packers need a good attorney. As already established, I am not a football expert but I am a Packers fan so I was sorry to hear about their loss last week. And then I learned (from better fans than I), that there was a bad call by a ref that led to a 49ers touchdown. And a friend/Packers fan pointed out that some of these coaches could use some good legal advice to prevent this from happening again.

During last weekend’s game Clay Matthews of the Packers hit the 49ers’ quarterback out of bounds. Apparently there was a bit of a scuffle and Joe Stanley, a San Francisco player, grabbed Matthews. Both Matthews and Stanley drew fouls as a result of their conduct and then came the problem: the ref announced that the third down would be replayed. As the ref admitted after the game, however, the down should have counted under NFL rules and they should have moved on to fourth down.

As I explained in my last Howard Stern post, the legal system divides issues into questions of law and questions of fact. Generally, juries decide questions of fact while legal questions are left to the judges. in football, on the other hand, referees act as both judge and jury – deciding questions of law and fact. They decide whether there was a late hit (a fact question) and what the consequences of such a hit are (the legal question). In last week’s situation, the actions that led to the two fouls were factual questions. But the decision to replay the down was a legal decision (it’s like a procedural question a court would face – after fouls are called in this situation, what are the legal ramifications?).

So what does this have to do with the Packers hiring an attorney, you ask? Packers’ coach Mike McCarthy could have used an attorney on his team who knew the NFL rules when the ref made this call. That way, the Packers could have immediately challenged the referee’s decision to allow the third down to be replayed. Attorneys are well-suited for this kind of role assisting football teams. We spend a lot of time obsessing over the details of various procedural rules, splitting hairs on when Rule X or Rule Y should apply and why. And we have to be quick on our feet when we’re standing before a judge explaining why he or she is wrong (always a delicate situation). Heck, the similarities are enough that some referees are even attorneys.

Hopefully the Packers game today won’t have any bad referee calls (we’ve had enough in the past year). But if they do, maybe it’s time for me to start paying attention to football and give Coach McCarthy a call!

X-Files Jurisprudence: The Law is Out There

By

Josh Gilliland

-

September 13, 2013

0

The X Files. A show that first aired on September 10, 1993. It defined the end of high school, college, law school and the beginning of my practice.

Caitlin Murphy, Esq., and I attended UC Davis together. We were in the same dorm in the Fall of 1996. Along with many of our classmates, the world shut down on Sundays at 900 pm as college students gathered in groups to watch Mulder and Scully face aliens, black oil, government conspiracies and some outright creepy cases.

Caitlin and I sat down to discuss three classic X-File episodes and the different legal issues presented in each one.

The Law is Out There.

eDiscovery Attorneys on The Paper Chase 40th Anniversary

By

Josh Gilliland

-

September 10, 2013

0

John Jay Osborn’s The Paper Chase has instilled dread in the hearts of first year law students for the last 40 years. It is simply brilliant in how the film captures the stress of law school.

John Williams did the musical score of The Paper Chase long before Jaws. While the musical score does not have the same dramatic flare of a shark attack when a law student is asked a hypothetical, the silence of such scenes captures the moment of tension extremely well.

I watched The Paper Chase before the first week of law school in 1998 and thought, “Naw, that is not what it is like.”

I was wrong. Professors showed up with seating charts with our faces on it. I quickly realized the film would have many things in common with reality.

eDiscovery Attorneys on The Paper Chase

Jessica Mederson and I hosted a special 40th Anniversary video podcast of The Paper Chase with eDiscovery legend Professor Craig Ball, Caitlin Murphy, Esq., Director of Legal Marketing for Access Data Group and Kelly Twigger, Esq., of ESI Attorneys.

We discussed our law school experiences vs The Paper Chase and our insights on what legal education should include today to produce competent work-ready attorneys.

You Come Here with a Skull Full of Mush and Leave Thinking like a Lawyer

Think like a lawyer. I did not really comprehend how lawyers “thought” when I was preparing for law school. I knew it was not like the LSAT in determining how many clowns could fit in a car. Those idiotic questions nearly kept me out of law school.

The film does not outright explain it, but “thinking like a lawyer” involves analyzing facts and their relationship to the law.

No lawyer movie or TV show has ever really handled the subject of “thinking like a lawyer” well. The idea of breaking down the elements of negligence, or peppercorns for consideration, or the complexities of personal jurisdiction would melt the minds of most movie goers (or sour the prospective jury pool). It would not be a box office gold mine.

I spent many hours reading, highlighting passages and taking notes on my laptop in the library.

The Paper Chase is the best depiction of how lawyers learn to “think like a lawyer.” You see the students reading cases, highlighting relevant sections of text to identify issues and holdings. You experience the emotion of learning to think on your feet by watching the Socratic Method in full force. And no matter how well you did in college, there is always another question waiting to keep you on your toes.

Professor Kingsfield’s quote, “Through my questions, you learn to teach yourselves,” is extremely accurate in describing how law students learn to think like lawyers.

At least it was for me.

It is Hard Being the Living Extension of Tradition

The Paper Chase highlights several huge mistakes law students could make in their first year. These include:

Dividing Up Outlining Responsibilities in a Study Group

Bad idea. Only you know how you best study and learn. Moreover, you cannot be certain the other person has the same learning style as you. The best way to learn the law is to understand how you learn and do the work. There is no substitute.

Writing An 800 Page Outline

No first year should decide to write a treatise on any subject. You need to outline issues, case holdings and “learn to think like a lawyer.” This is not the time to write a book on a subject when you utterly lack the credibility and experience to do so at the expense of your other classes.

Not Taking Practice Exams

This is perhaps the best way to fail out of law school. You must read the cases, even the footnotes and understand how the law works. Taking practice exams empower law students to practice IRAC (Or CRAC, which starts with the Conclusion), which is identifying the relevant legal Issues, stating the Rule that applies, explaining the legal Analysis of how the facts and law relate, and stating a Conclusion. The most important element of IRAC or CRAC is Analysis. Underlining key terms helps in making it easier for professors to grade.

You also learn how your professor thinks, which will help you in the long run of preparing for the final exam.

Do Not Poison Relationships By Talking About Law School

The fictional Hart makes a huge error with a prospective girlfriend: He talks at length about law school and a professor.

Don’t do that.

Worse yet, Hart told his girlfriend, “I have not been working hard enough since spending time with you.”

Do not blame a girlfriend or boyfriend for you not studying enough. If you have any basis for emotional support, the last think you want to do is burn the bridge to someone who cares about you.

Reflections on Law School

No one goes to law school to enhance their self-esteem. It is an exhausting three years. There is stress from studying, stress from classes, and stress in finding a job.

There are also many foxhole friendships. A sense of adventure. And even a fondness looking back. John Jay Osborn wrote a very insightful essay on how his views changed of Harvard as his daughter prepared for law school.

There is also something else I experienced at law school: Kindness.

I actually was wait-listed for McGeorge. The summer I should have taken a LSAT course I instead worked 18-hour days at my mother’s business without pay. Dickens and Tolstoy would have been proud, but my LSAT score suffered dramatically for it. Landing in the purgatory of a wait-list was the result of not taking a prep class.

I decided to take action and not go down without a fight. I asked three professors from UC Davis if they would send in letters of recommendation on my behalf. A good friend from college brewed beer with two professors from McGeorge. One of those professors agreed to meet with me. After our meeting, he asked a few questions at the admissions office.

The Dean of Admissions called me after my letter campaign. I was accepted to McGeorge shortly before the beginning of the 1998 fall semester, based on my college grades, letters of recommendation and the inquiries of a very kind law professor.

I then worked my tail off for three years.

I was impressed by the dedication of my professors at McGeorge. They were tough, but I did not have any horror stories besides the usual ones. The professors were always available for office hours and willing to help the student who showed up with sweat on their brow from hours of studying.

Two of them of note: my Civil Procedure and Constitutional Law professors. My first year Civil Procedure professor masterfully used PowerPoint and graphics to breakdown the complexities of the code and cases. He wanted us to understand how the Federal Rules of Civil Procedure worked and very effectively helped us understand complex cases like Asahi Metal Industry Co. v. Superior Court and a litany of others.

Civil Procedure was my only A in my first year. I was my old prof’s research assistant between my Second and Third years of law school. I had no idea how knowing Civil Procedure would later impact my career as an eDiscovery attorney.

My Con Law professor was one of Ralph Nader’s “Raiders.” There was one of his Supreme Court cases in our book. He always wore a suit to class, treated everyone with respect and taught the subject, not his opinions. I had an A- in his class, just one point away from an A. He attended my swearing in ceremony as an attorney. Truly a class act.

As I look back on my personal law school experience, it is less The Paper Chase and more Stand By Me. I have had the good fortune to guest lecture at my alumni several times over the years. Today’s law students have many increased challenges when they graduate in finding a job, however we will always need good attorneys to represent those in legal jeopardy.

Preparing the Next Generation of Lawyers

I do not agree with President Obama that law school should be two years. The third year is extremely helpful in finding areas of law prospective attorneys are interested in practicing and continuing to build marketable skills.

That being said, law students need as many experiences as possible to prepare them for the practice of law. Law schools have done a good job with teaching students online legal research skills. Students have had free legal research accounts since the early 1990s from Lexis and Westlaw (and anyone can use Fastcase for free). Legal research is one of the basic building blocks to be able to practice law.

It is time for another step forward and teach students how to conduct document review in online repositories, summarize depositions, billing best practices and the software basics they will use everyday at any size firm. One only needs to look at the results of the technology audit from the General Counsel of Kia to see how painfully behind many attorneys are with basic technology.

Law schools would dramatically help their students with practical internships, paid positions and leveraging alumni to help build the experience of future attorneys. This would require career development offices to shift from finding jobs for the top 5% of a graduating class to putting an entire class of law students to work in their third year. Such an undertaking would be the Project Apollo for law schools in need of a Von Braun on every campus. It would not be easy and take very dedicated hard work. However, it is necessary for future attorneys to be competitive in the job market and competent in the practice of law.

The Green Bay Packers: Special In So Many Ways

By

Jessica_alegalgeek

-

September 8, 2013

0

Go Packs! The Green Bay Packers play their first regular season game of the year this afternoon. I’m enough of a Packers fan to know this. I am not enough of a fan, however, to watch the game (I’m going to see Iron Man 3 with a friend instead). But I love the Packers, even though I don’t watch a lot of football and I am originally from Minnesota. The Packers have such an impressive legacy and they play outdoors in Green Bay in the winter. As a northern girl, I love that. Plus, it’s great to see one of the original small-town football teams not just survive but thrive in this era of big market, big money, big ego football.

But what I love most about the Packers is the fact that there are 364,122 owners of Packers. And not one Jerry Jones or Jack Kent Cooke (that’s a throwback to my college days in DC) in the bunch. Most people know that the Green Bay Packers are community owned. Even I, with my limited interest in football, knew that. What I didn’t know, however, is how the ownership works or how it started.

On August 18, 1923, the original articles of incorporation for Green Bay Packers Inc. were filed with Wisconsin’s secretary of state. A publicly-owned company, the Packers corporation is nonprofit. The bylaws state that the Packers are “a community project, intended to promote community welfare.”

The shareholders don’t get paid dividends and can’t sell their stock. But they do get to attend the annual shareholder meeting and vote on corporate matters, such as the board of directors. The Packers are governed by a board of directors and a seven-member executive committee. And to prevent a Jerry Jones-type from taking over, the articles of incorporation specifically prohibit any individual from owning more than 200,000 shares. Over the past ninety years there have been 5 stock offerings, with the last one (in 2011) used to raise funds for an expansion of Lambeau Field.

Unfortunately, the NFL will never allow another franchise like the Packers to be created. In 1960, the NFL constitution (I did not know until today that the NFL had its own constitution) was amended to add a Green Bay Rule that provides, “charitable organizations and/or corporations not organized for profit and not now a member of the league may not hold membership in the National Football League.” Art. 4, S. 4, NFL Constitution.

Maybe there never could be another Green Bay football team anyway, with today’s billionaires running most of the show. But the public, non-profit structure has created a great relationship between the team and the residents of Green Bay and Wisconsin. We know that the Packers can’t threaten to pack up and leave town. Volunteers work the concessions, with 60% of the proceeds going to local charities (could you imagine that at a San Francisco 49ers game?). And, during snowstorms, volunteers come to shovel the snow off of Lambeau Field (full disclosure – I totally want to do that). No way would anyone – or should anyone – volunteer to help out Jerry Jones and the Cowboys.

Nope, the Packers are awesome, and not just because they’re a good football team. They are truly part of the community and it makes for more dedicated fans and a better team. It may not be a wise financial investment, but if the Packers ever offer up more shares, I will proudly become an owner of the best football franchise in the US!

Say Anything, Except Better Off Dead

By

Josh Gilliland

-

September 4, 2013

0

Attorneys Jessica Mederson and Josh Gilliland discuss the legal issues in the John Cusack classics Say Anything and Better Off Dead.

Say Anything…and the Arizona Cardinals?

By

Jessica_alegalgeek

-

September 2, 2013

0

What do Say Anything and the Arizona Cardinals have in common? They both have issues with underage drinking. In Say Anything, the underage drinking involves a house party to celebrate graduating from high school (holy cow, I remember the parties from that night in my own life, so many years ago!). For the Arizona Cardinals, the issue occurred at a recent preseason game. A father was watching the game with his 15-year-old son and he asked his son to hold his beer while he took some pictures. Yada, yada, yada…father and son end up booted and cited for trespassing.

But before we talk about the similar legal issues, let’s talk about John Cusack.

My love affair with him began in the fall of 1989, when I saw Say Anything at my boyfriend’s house…on VHS (ufta, yet another reminder of how old I am!). Gross Pointe Blank, Being John Malkovich, Hot Tub Time Machine... They’re all great and he’s great in them (I just block out the fact that he was in Con Air). And then there’s High Fidelity, which is the perfect sequel to Say Anything.

While many 80s teen movies are still a ton of fun, Say Anything has more than withstood the test of time. Of course, I don’t know if I’d feel the same way if Robert Downey, Jr. or Christian Slater had played Lloyd. They’re both great, but nobody could play Lloyd like John. He was so responsible and sweet. And the woman were great too. So was the annual party that was the site of Lloyd and Diane’s first date. Known as the responsible one, Lloyd didn’t get to relax and enjoy his date because he was the Keymaster: http://www.youtube.com/watch?v=SrRdEorvYVM

As a teenager I thought that was such a responsible move – enlisting someone as a keymaster to keep the keys out of the hands of drunken teenagers. As a parent, of course, I now have a different perspective on underage drinking. When I first moved to Texas I was a waitress. My first day I was told that we could serve minors if they were with their parents. I was surprised but I’ve now learned that Texas isn’t alone in taking that stance. In fact, 45 states have exceptions to the general rule that you can’t drink if you’re under 21.

There are eight different ways that minors can drink. I’ve lived in three of the states that allow children to be served at a restaurant if they’re with their parents – Connecticut, Texas, and Wisconsin. Arizona, obviously, doesn’t have such an exception. If it did, that dad wouldn’t have been in trouble (at least under state law).

In Washington, on the other hand, if the parents had been at the graduation party and given their consent, the kids could drink. So, in theory, if the parents had all been partying upstairs, their kids could drink downstairs. But I didn’t see any parents in the movie, so I don’t think that exception to the general prohibition would have worked.

So both Say Anything and the Arizona Cardinals’ dad came up against state laws generally prohibiting underage drinking. While there are exceptions, they are few and far between (unless you hang out in the states I do!).