Top Ten Reasons I’d Rather Be a TV Lawyer

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July 25, 2012

I loved legal shows even before I knew I was going to be a lawyer. Now, after more than a decade in the profession, I still enjoy legal shows, even as they drive me nuts with their inaccurate representations of a lawyer’s life. Of course, the shows have to be inaccurate – nobody would voluntarily watch someone in drab business casual attire stare at a computer, type an email, or anxiously check their Blackberry during family dinners and vacations. Most real attorneys have pretty dull jobs, punctuated by brief periods of intense stress and action (although said action isn’t very active either). That’s why TV lawyers can’t be like real lawyers, of course, and it’s also why I’d rather be a TV lawyer. Here, in no particular order, are the top 10 reasons I’d rather be a TV lawyer:

The sex. The hot, awesome, crazy sex they always seem to have time for – in a partner’s office, in a judge’s chambers, in a restaurant bathroom. I’ve heard some stories of hanky panky in law firms, but the people involved usually aren’t very attractive and the stories are pretty infrequent.
No document review! Or, if there is document review, it only takes a few hours and then you find the most incriminating words ever written on paper. Ever. Then you get to run down the hall, waving the sheet above your head as you burst into the office where the senior partners were just about to give up on the case entirely. I’ve done a lot of doc reviews and that’s never happened.
Young associates are both seen and heard. In big law, young associates are relegated to their offices, interacting primarily with paralegals and the mid-level or senior associates who assign them research projects and document review tasks. On TV shows, baby attorneys who have never seen the inside of a courtroom are given the crucial task of crossing the opposition’s key witness or making closing arguments.
Fabulous clothes. Okay, it’s not Gossip Girl, but TV lawyers still have some pretty awesome suits and dresses. And, if you’re a legal investigator, you get to wear leather coats and bad-ass boots. (I’ve changed my mind – I don’t want to be a TV lawyer either – I want to be Kalinda.)
Detective work. Forget hours on Westlaw researching cases and legislative history and weeks writing research memos and briefs. Instead, I’d be out on the streets, knocking on doors, spying on people, figuring out the shady dealings behind the opposing party’s case (although I’d need Kalinda if I really wanted to get it done right).
No ethical concerns. The Practice was the greatest abuser of legal ethics – I was taking my professional responsibility class when it was on and Bobby broke every rule I learned. Of course, being a lawyer would be a lot more fun if you could break the professional responsibility rules (see Item #1 above).
Right to a speedy trial. I haven’t done a statistical analysis, but on TV there’s about 3-4 days between the time lawyers get the case and the time it has to go to trial. I’ve known actual cases, on the other hand, that drag on for years. In one case, it took nearly a year just to get to the temporary injunction hearing! Most cases can get pretty old after a while, so knowing that your current case will be over in about a week would make it much easier to deal with difficult clients and obnoxious opposing counsel.
They have trials! Yes, they actually go to trial – a lot. That’s something that doesn’t happen much anymore (at least in big law), which is a major bummer for all of us who dreamed of pounding on a table some day while cross examining a hostile witness.
Theatrics. It’s Hollywood, so it’s obvious that TV lawyers have to be theatrical and, apparently, the judges are pretty cool with it (although there are many threats of contempt that the lawyers bravely ignore). In real life, even court’s pretty boring most of the time.
The sex. After trial is over and they’ve won the biggest judgment ever (or they’ve been unjustly robbed), they all have fabulous sex again. It’s really awesome and completely unrealistic, but definitely worthy of two mentions.

The Greatest Comic Book Sagas (For a Lawyer) Issue 1

By

Josh Gilliland

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July 23, 2012

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One of the most interesting comic book mini-series for a lawyer is DC’s Cry for Justice. The story was a 7-part series that touched on many legal and ethical issues for lawyers.

Let’s review the series from a lawyer’s point of view.

Cry For Justice

DC’s “Cry for Justice” was written by James Robinson and art by Mauro Cascioli. The story begins after the highly confusing “Final Crisis.” What was not difficult to understand about “Final Crisis,” was it ends with Batman and the Martin Manhunter dead [apparently in Batman’s case, who had been thrown back in time, and Martin Manhunter was brought back to life in Blackest Night] after planet Earth went through a reality-bending-cosmic-meat-grinder.

Green Lantern (Hal Jordan) does not take this well. The series opens with Green Lantern debating Superman, Wonder Woman and other members of the Justice League. Green Lantern no longer wants to wait for villains to do harm, but to track down evil before they can do harm.

Hal Jordan reasons that modern villains were no longer simply scared into the shadows because the good guys were good. Waiting for the bad guys to simply show up to cause problems had cost too many lives. It also had enslaved almost the entire human race and nearly destroyed all of reality in Final Crisis. It was time to take preventative action.

It does not take someone with a Political Science degree to see the first few pages of Cry For Justice are a debate on the Bush Doctrine.

Super Heroes & Preventive War

Most of the members of the Justice League do not agree with Green Lantern. The debate ends with Hal Jordan and Green Arrow leaving the Justice League’s space station saying, “You want a league. I want justice.”

There are other heroes who felt the same as Hal Jordan across the planet. Virtually all were inspired to find “justice” based off the deaths of others.

There are even some “enhanced interrogations” of villains by heroes to get answers.

And all roads eventually led to a villain named Prometheus stealing advanced technology.

Unfortunately for our heroes, seeking justice did not go according to plan.

A Smart & Well-Armed Bad Guy

The villain Prometheus had a suit of armor programed with how to defeat virtually all known super heroes. His cruelty knew few limits, including making a throw rug out of a dead super hero’s body. After a long con, we learn Prometheus impersonated Captain Marvel (Shazam!) and gained access to the Justice League space station with the rest of the heroes [the real Captain Marvel was found as his mortal self, tied up with his lips sewn shut with wire so he could not say Shazam. Yes, wire.].

Prometheus managed to defeat almost everyone in the Justice League, including ripping off Red Arrow’s arm (Green Arrow’s son).

During the traditional bad guy monologue outlining his plans, we learn there are devices across the planet that would encase cities in force fields and launch them across time and space. The goal was for a fate worse than death knowing that loved ones were forever missing.

Prometheus demanded to be set free in exchange for the codes to stop the devices. And just to prove he was really evil, the attack had already begun in Green Arrow’s home Star City during the fight with the heroes and his capture. However, Star City was not launched across time and space; it was destroyed with 90,000 dead, including Green Arrow’s granddaughter.

Realizing they could not stop the devices from killing more, Green Arrow convinces the rest of the Justice League to let Prometheus go free in exchange for the codes to stop the doomsday weapons. The heroes stop a massive death toll in the millions. The cost of “victory” was letting the bad guy get away.

Is It Justice?

It looks like evil won, with the bad guy safely gloating and plotting in his fortress between worlds and dimensions.

Much to Prometheus’s surprise, Green Arrow appears and puts one arrow through Prometheus’s skull.

Only one word is said by Green Arrow after killing Prometheus: Justice.

What Lawyers Think About When Reading A Cry for Justice

Cry For Justice has wonderful legal issues. It was extremely well written with excellent artwork. James Robinson was masterful at incorporating thoughtful ethical issues in a very timely story.

The first obvious ethical issue is that heroes do not normally kill bad guys. Those upholding the law do not normally execute the villains. It looks more like “revenge” less like “justice.” The entire concept of “due process” is a chalk outline on the floor when the good guys go around killing criminals.

However, there are the threats to a country that exceed any formal court proceeding. Someone who can destroy cities, leave 90,000 dead, and hide outside of reality as we know it, falls into that group without question.

Let’s take a look at history for anything close to a precedent.

Japanese Admiral Isoroku Yamamoto planned the attack on Pearl Harbor.

He was the commander-in-chief of the combined fleet of the Japanese Navy.

And after Pearl Harbor, we wanted him dead.

When the US learned of a flight Yamamoto was going to be on, the Air Force shot down Yamamoto’s plane.

The mission was code named “Operation Vengeance.”

The military planners were not shy in how they felt about Admiral Yamamoto.

It was not even a remote idea to somehow capture the Admiral to convict him in a US Court for the attack on Pearl Harbor. Such an idea was totally unrealistic. A marshal would have a difficult time serving an arrest warrant on the Admiral’s battleship, also surrounded by a well-armed navy.

Moreover, Yamamoto was a brilliant officer who was in charge of the Japanese Navy. His targeted killing historically made sense as a decapitation strike given his skill and popularity within the fleet.

We were also at war. Something that cannot be over looked or understated. Targeting leaders is what armies and navies do to each other.

The same can be said for Bin Ladin.

As for the War on Terror (or Overseas Contingency Operation) the killing of Bin Ladin and other “targeted killing” is based off the Congressional Authorization for Use of Military Force passed shortly after the September 11, 2001 attacks.

There are many pronounced differences differences between the War on Terror and World War II. When battles are fought in shadows by SEALs, special forces and Drones, the successful operations do not make the news. It will likely be years before it is publicly known the secret battles that have taken place since 2001 and two US Presidents.

However, there is a very different view to outright ordering the deaths of “war criminals” or threats against the country. These were best articulated in Justice Jackson’s opening statement at the Nuremberg Trials:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

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In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war- making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively With the men in whom those forces now precariously survive.

For the complete text, please see transcript available on the University of Missouri-Kansas City, School of Law “Famous Trials” website.

While a war crimes trial lacks the impressive physical display of power of a SEAL team, the solemnness of the proceedings deters dancing in the streets like victory at a sporting event.

So, did Green Arrow make the right decision in killing Prometheus?

Was killing the villain who caused the deaths of 90,000 justified?

Would capturing Prometheus for trial have been a better example?

Is Justice Jackson’s “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated,“ a goal that can be lived up to (even if only in comics) or simply lofty rhetoric in the face of Realpolitik?

Prometheus was a highly intelligent villain who defeated the Justice League in minutes. Supergirl down in one shot. Other heroes maimed. The villain’s powers favor it would be safer to kill instead of capture.

However, Green Arrow was acting solely on his own, not under orders from a President or at least the color of authority from a Congressional Resolution authorizing force (Congress would likely pass a force bill similar to combating the Barbary Pirates or War on Terror, given 90,000 people were killed. Special Forces would likely have orders to shoot to kill if they could find Prometheus).

It appears the threat of Prometheus justified killing over capture, because there are some forms of justice beyond the jurisdiction of any court, especially where the capture is simply not an option because of the level of the villain’s power. However, this was done without any legal authority on Green Arrow’s part.

Worse yet, Green Arrow did not collect or destroy Prometheus’ technology to ensure no one else would get it.

With that said, Green Arrow killed Prometheus “between worlds and dimensions.” There would be an impressive jurisdictional defense on how either Federal or State law applied outside of reality as we know it (jury nullification carried the day in comic).

And that is how a lawyer reads comic books.

The Legal Geeks Review Abraham Lincoln: Vampire Hunter (YouTube)

By

Josh Gilliland

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July 19, 2012

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Attorneys Josh Gilliland and Jessica Mederson discuss Abraham Lincoln: Vampire Hunter and the US Civil War History.

President Lincoln: Saving America from Sparkling Vampires

By

Josh Gilliland

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July 18, 2012

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The Era of Sparkling Vampires is Over. And we owe this glorious day of jubilee to Abraham Lincoln: Vampire Hunter. Sure, the movie plays liberally with the historical record, but at the end of the day, it is worth it: There have been too many movies with teenage girls (and some women in their 40s) squealing over sparkling vampires who feed on the living.

Finally having a film depicting undead-day-walkers as evil beings, who use people for food, fought by an ax-wielding Abraham Lincoln, is the first step in the long healing process caused by years of damage from Twilight. Once again, President Lincoln has saved the United States of America.

The film Abraham Lincoln: Vampire Hunter is the [fictional] story of President Lincoln’s vampire hunting past and the secret war within the Civil War. The story begins with Abraham Lincoln as a boy, whose mother is killed by a vampire. Being a good son, he swears revenge on vampires.

A Short History of The Slave Power

Historians and antebellum statesmen called the political forces that dominated the Presidency and Congress before the Civil War, “The Slave Power.” Until the election of Abraham Lincoln, the only non-slave owning Presidents were John Adams, John Quincy Adams and Martin Van Buren. All were from the North; all lost re-election.

This “Slave Power” fought for slavery and the expansion into Western Territories as they became states. From the Compromise of 1820, to the Gag Rule, to the Fugitive Slave Act, to the election of James K. Polk and the Mexican-American War, to the Compromise of 1850, to the Dred Scott case, are all evidence of political forces driving the expansion of slavery leading up to the Civil War.

The Slave Power took the election of Abraham Lincoln as a direct threat to their existence, because the North was able to elect Lincoln entirely on their own, despite three other candidates running for President (including the sitting Vice President of the United States). Seeing they could no longer rule the Federal Government, they decided to ruin it with secession in an attempt to nullify the Presidential Election. The eleven Southern states seceded in exact inverse proportion to the number of slaves versus free whites, with South Carolina first in December 1860.

The Civil War followed more than a month after Abraham Lincoln’s Inauguration.

The Vampire Threat

In our fictional story, there was the hidden “Vampire Power” [my term] which operated in the South, using slaves as a steady supply of “food” that was free of any legal ramifications of people going missing.

While not directly stated, the unholy supply system included vampires in Border States leveraging the Fugitive Slave Act as a means to capture “runaway slaves” and send the victims to the hellish fate of being a meal for a vampire in New Orleans [at least, historically, that is the context I saw in the meeting along the river between Adam and Jack Barts]. This had the effect of “containing” the majority of vampires in The South.

Historical Comparisons

The film touched on various historical figures. Here are a few observations:

Steven Douglass, played by Alan Tudyk of Firefly fame, missed the fire of the Senator captured by historians such as Stephen Oates. Douglass was nicknamed the Little Giant. He drank. He swore. And he was supremely confident of himself. One would have to be confident to be the champion of “Popular Sovereignty” in letting territories vote if they would be free or permit slavery, something completely incompatible with the Declaration of Independence. After he lost the election of 1860, Senator Douglass was determined to win the Civil War with President Lincoln (until his death early in the Civil War).

Mary Todd Lincoln was delightfully played by Mary Elizabeth Winstead. History remembers Mary Todd being high maintenance, but God knows the stress she endured. Three of her sons died. Her husband was murdered next to her. Her eldest son tried putting her in an insane asylum. The trial ended Robert Lincoln’s political chances of becoming President, relegating him to serve as Secretary of War under President Garfield and then Arthur.

Winstead portrayed Mary Todd as confident, cute, loving to her husband and not afraid to take the kill shot.

Joshua Speed lived until 1882. Really do not need to go into more detail.

Jefferson Davis had an eye disease. One history book I read in college described it as looking dead.

The Civil War Battles & History

The Civil War parts of the film focused on September 17, 1862 with the Battle of Antietam. The film lightly addressed the importance of this battle.

Antietam was the bloodiest day in American History with over 23,000 casualties.

For Lincoln, it was enough of a victory to sign the Preliminary Emancipation Proclamation, which would free the slaves in the states in rebellion on January 1, 1863.

This was a brilliant geopolitical move, because it turned the Civil War into a war of liberation to end slavery, forcing England to NOT officially recognize the South as a separate country. If England had officially sided with the South and provided military support, Lincoln would have had a two front war, with British soldiers invading from Canada and the British Navy blockading the East Coast. Further illustrating the danger, England (specifically English companies) had provided different forms of assistance to the South, including the construction of warships CSS Alabama and CSS Shenandoah (the last Confederate warship), which were built in England and then armed at sea.

However, Great Britain did not recognize the South and officially stayed neutral throughout the Civil War.

Back to the film: By the time of Gettysburg on July 1, 1863, Confederate President Davis recruited the vampires to fight for the Confederacy. This causes significant losses on the first day of the battle.

Without giving too much away, the battle is saved by arming the Union soldiers with silver bullets, cannon balls and bayonets (it is implied that the final battle is Pickett’s charge) .

However, what the battle did not show was how weapons inflicted damage at the time. Round bullets would rip off limbs, unlike projectiles of today.

As my old Civil War History professor at UC Davis stated, “The defining feature of the later half of the 19th Century were men with empty sleeves and lifeless eyes.”

War is always Hell, but Gettysburg had to be a new level of nightmares for anyone at Little Round Top, Pickett’s Charge, or any other part of that battle.

That Government of the People, by the People, for the People, Shall not Perish from the Earth…

In closing, I enjoyed Benjamin Walker’s performance as Abraham Lincoln. He masterfully delivered the Gettysburg Address with confidence and strength. It is easy to imagine it being stated very solemnly. His tone as the resolute leader was well done.

Is Abraham Lincoln: Vampire Hunter going to win any Oscars? Extremely unlikely, other than perhaps sound or special effects. But, the production team was profoundly classy in having the premier of the movie on the USS Abraham Lincoln for our sailors serving overseas.

Speaking of sailors, I look forward to James Madison: Werewolf Hunter, the untold story of how the War of 1812 was more than just the impressment of sailors.

Dredd for a future without juries (and instant executions)

By

Jessica_alegalgeek

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July 16, 2012

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Last week at Comic-Con a trailer was released for a new Dredd movie, unfortunately unrelated to Sylvester Stallone’s 1995 Judge Dredd movie that sees him convicted of murder based on DNA evidence (directed by Danny Cannon, who also got the honor of directing “I Still Know What You Did Last Summer”).

In this new release, Dredd continues to be judge, jury, and executioner rolled into one, and this time he’s training a rookie judge with psychic abilities. The idea of psychics or truthtellers – individuals able to tell who’s guilty/innocent or telling the truth/lying – is a fun one to play with in the legal context (such as the psychics in Minority Report or the truthtellers in the Dune series) and one I’ll have to discuss in another blog post.

This post, however, is dedicated to the idea of judge and jury being combined into one individual. It’s significant that Judge Dredd is a British creation, where the right to a jury trial was included in the Magna Carta in 1215. While the English legal system traveled to the American colonies, the British government didn’t always allow jury trials in the colonies. That meant that the colonial judges, whose job security depended on the King, were often seen as biased. Being deprived of jury trials was listed in the Declaration of Independence as one of the complaints levied at the King, right after taxation without consent. The right to a jury trial was then enshrined in the Constitution. Alexander Hamilton called this right “the very palladium of free government.”

In the comic strip and movies, Judge Dredd’s entire face is never shown. While this began as an unofficial guideline, it soon became a rule because “It sums up the facelessness of justice − justice has no soul.” Contrast that idea of a faceless, soulless judge with our legal system’s view of the jury’s role, which has been described by the Supreme Court as a “guard against the exercise of arbitrary power.” Taylor v. Louisiana, 419 U.S. 522, 530 (1975). Juries can also enforce community standards, legitimize laws, and practice jury nullification (in which a jury refuses to convict a guilty defendant because it believes the law to be unfair either generally or in a particular case, such as when jurors refused to find people guilty for assisting slaves to escape their owners).

Of course, juries aren’t perfect. Jury decisions can often be very unpredictable and biases (such as racism and sexism) can intrude. Evidentiary issues are also heightened in jury trials. A friend of mine in law school was an Israeli prosecutor (Israel is noted for not having juries of any kind despite having a legal system based largely on the British legal system), and she often mocked the time we spend on evidentiary issues because of our concern that the probative value of evidence not be outweighed by any prejudice it would cause to a jury.

Nevertheless, juries – even with their flaws – continue to exist to counter the faceless, arbitrary, government-controlled justice represented by Judge Dredd. And Judge Dredd is apparently only equipped to handle criminal cases. It would be entertaining but difficult to picture Judge Dredd acting as instant judge and jury in a patent infringement or breach of contract case. And imagine Judge Dredd trying to sift through millions of bytes of electronic discovery (I think I’ve got the plot for the next Dredd movie).

Of course, the idea of a Judge Dredd — a one-stop shop for all things justice — is appealing when you’re dealing with a bleak future where criminals run rampant and fashion choices are bizarre (plus, what lawyer doesn’t want to yell “I am the Law!” at some point in their career?). But, as is often the case in the legal system, the most efficient solution isn’t the most effective solution. If it were my butt on the line, I’d ask that my justice be deliberate and taken out of the hands of just one person. Mistakes happen all the time, even with pyschics and lie detector tests (just ask Tom Cruise or George Costanza), so I don’t want a judge – I want a jury there to take into account extra-legal considerations and, just in case, I’d like some time for review before I meet my executioner. Just ask Stallone – turns out even Judge Dredd’s system wasn’t perfect!

Boldly Going- Lawyers & Star Trek

By

Josh Gilliland

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July 12, 2012

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Star Trek is one of the most successful and enduring science fiction stories of all time. In addition to heroic tales of making a cannon out of natural elements around you, many of the stories touched on deeper issues. One is Court Martial from the Star Trek The Original Series.

Court Martial

In the episode, Captain Kirk is charged with perjury and negligence in the death of a shipmate during an ion storm.

Specifically, Kirk claims he jettisoned a pod with Lt. Commander Ben Finney in it after going to Red Alert; the ship’s computer log shows Kirk jettisoned the pod, thus killing Finney, before going to Red Alert.

The alleged motive is that Lt. Commander Finney and Kirk used to be close friends. Finney had even named his daughter Jamie after Kirk (James to Jamie is better than some permutation of Tiberius). However, the two friends were estranged because years before Ensign Kirk corrected and logged an error Finny made while on the USS Republic that would have resulted in the Republic’s destruction. Finney’s career did not recover, with him being passed over for promotion.

During a verbal confrontation with Commodore Stone investigating the incident, Kirk demands a court martial when the Commodore effectively proposes that Kirk’s career and honor be swept under the rug with a ground assignment over the death of Finney.

Beam Down the Prosecutor

The trial focuses on a key theme of man verse machine. However, there are some immediate problems that cause lawyers to raise one eyebrow:

The Prosecutor is Lt. Areel Shaw, a woman Kirk had a relationship with years earlier (knowing Kirk, most likely physically and emotionally intimate. Moreover, any relationship with Kirk was life altering for any woman, for she forever knows any other man in her life will only be second best to Jim Kirk).

Lt. Shaw actually refers to Kirk in the bar scene as “dear old love.”

A bigger ethical issue is when Kirk met with Shaw with phasers set to charming, Shaw did not immediately disclose she was the JAG officer building the case against Kirk.

It is generally frowned upon for former girlfriends to prosecute former boyfriends, especially meeting them without counsel present. While Kirk did consent to her prosecuting the case, it might cause others to raise conflict of interest questions.

Finally, Lt. Shaw had a very bad habit of asking long leading questions on the direct examination of her own witnesses. This is perhaps because the witnesses were Spock and Dr. McCoy, so she could have been treating them as “hostile witnesses.” However, it went against the trial practice of having the witness do 90% of the talking on direct examination.

Samuel T. Cogley, Attorney at Law

When Kirk meets his defense attorney Samuel T. Cogley, a quirky old fashioned lawyer in the 23rd Century played by Elisha Cook, Jr., the lawyer has moved into Kirk’s quarters on the Star Base to prepare for trial.

Cogley is introduced surrounded by law books (inducing some law school flashbacks for some attorneys, while some others say, “Hey, that’s my office”).

Cogley states his preference for books over using the computer for legal research when Kirks comments computers take less space then books. This was decades before Lexis and West Law started giving law students free legal research accounts. ARPANET had not even been built yet (the episode aired in 1967 and ARPANET established in 1969). iBooks was still A LONG way off. Once again, Star Trek predicted a technology that is commonly used today: computer-assisted legal research.

Kirk Verses The Computer

The key issue in the case against Captain Kirk was that the Enterprise Computer could not be wrong. Kirk statements and the visual record did not match, therefore resulting in a man verse machine debate.

We hold today that records from a computer are presumed accurate. For example, as one California Court recently stated over the admissibility of photos from a red light camera:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer.

People v. Goldsmith, 203 Cal. App. 4th 1515, 1522-1523 (Cal. App. 2d Dist. 2012).

However, a party can (and should if the facts support it) offer evidence that a computer or program was not operating or used correctly (such as cases involving red light cameras or formulas in Excel files).

As for our story, the evidence against Kirk is grim. Highly leading questions from the Prosecutor on direct examination of Spock introduce the computer records; equally leading questions on McCoy showed motive, because it was possible Kirk did not like Finney because Finney did not like Kirk (based on Finney being denied rank advancement).

However, what is never discussed until the conclusion of the case is the possibility the computer was tampered with by someone. Spock finds the “evidence” of this tampering after winning five games of Chess against the computer.

In today’s world of computer forensics and eDiscovery, a computer expert could find evidence of tampering with the ship’s log. That is the sort of thing computer forensic examiners do professionally. However, writers could only foresee so much in 1967.

There are some wonderful quotes from Samuel T. Cogley in demanding the cross-examination of the USS Enterprise computer. One was “I speak of rights. A machine has none. A man must!” Here is selected text from the argument scene:

I’d be delighted to, sir. Now that I’ve got something HUMAN to talk about. Rights, sir! Human rights! The Bible, The Code of Hammurabi, and of Justinian, Magna Carta, The Constitution of the United States, Fundamental Declarations of the Martian Colonies, The Statutes of Alpha III. Gentlemen, these documents all speak of rights. Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination; but, MOST importantly, the right to be confronted by the witnesses against him – a right to which my client has been denied.

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And I repeat, I speak of rights! A machine has none. A man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine! Indeed, you have elevated that machine above us! I ask that my motion be granted. And more than that, gentlemen – in the name of a humanity fading in the shadow of the machine – I demand it. I demand it!

The proceedings were in turned moved to the USS Enterprise.

In short order, Finney is found alive after clearing the ship of the entire crew and listening for heartbeats.

Finney faked his death as a means of revenge on Kirk to ruin the Captain’s career.

As required by tradition and precedent, Kirk saved the Enterprise by climbing into a Jefferies Tube, after his shirt was ripped in the fight with Finney.

Star Trek on Rights

Court Martial has wonderful eDiscovery and computer forensic issues, in addition to the concept of cross-examination of a machine. Today, such a cross-examination would be conducted by an attorney on the human being who either programed the computer or engaged in the computer analysis. After all, we presume computers work correctly. It is up to the human lawyer to challenge any data with a human witness.

The episode also has a very beautiful subtext that can easily be overlooked in the 21 Century: the commanding officers presiding over the court martial are of different nationalities. In 1967, showing a future where people only saw people as people was a wonderful message. Today, it could be easily overlooked because that is how we expect everyone to be treated.

And finally, Lt. Areel Shaw. Women were approximately three percent of the lawyers in the United States in the 1960s. Seeing a woman serving as a JAG officer who could go to the brink of conviction, plus throw down argument with defense counsel, was a bold view of lawyers in the future in 1967.

My Geek Credentials

By

Josh Gilliland

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July 12, 2012

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I wear bow ties. I watch Dr. Who. I think Star Trek 2: The Wrath of Khan is one of the greatest films of all time. Why, you ask? Because it involves themes of aging, loyalty, sacrifice and redemption of a father to a son. Plus space ships.

I am also a lawyer. I know Civil Procedure and Evidence exceptionally well. It enabled me to save thousands of dollars not dating while in law school, but made me popular at finals.

I know a lot of US History. I found an error at the Smithsonian’s Presidential Exhibit where it stated President Andrew Johnson served as a United States Senator after he was President. Not true. While the Redeemer Government in Tennessee elected him to the Senate, Johnson died before taking the oath of office, thus never served.

Some of you might wonder if I could be deemed a geek expert under Federal Rules of Evidence Rule 702. Well, here are my credentials:

I have watched Doctor Who since elementary school, long before it was cool or remotely socially acceptable by “the in crowd.”

I attended my first TimeCon in 1985.

I read my fair share of comic books.

Leonard Nimoy sent me a get well card in 1990 when I was deathly ill and hospitalized.

To Boldly Go

Nimoy is a class act. In 2009, Nimoy was the keynote at legal technology conference. I was one of the first 20 in line to meet him after his speech. When my turn came, I shook his hand and stated, “You sent me a get well card when I was 15 and in the hospital. That really meant a lot and I just wanted to say, thank you.”

I started to move away (because the needs of the many dictated not holding up the 900 people behind me) and he put his hand on my shoulder to stop me. No, Nimoy did not do the Vulcan Nerve Pinch. He stated, “I was very glad I did that.” I started to move again, and again he stopped me two more times, asking what had happened and if I was ok now.

Class act. A wonderful human being.

I Remember It Differently

Two weeks before meeting Leonard Nimoy, I was in Los Angeles to see the opening of Star Trek with my brother. Prior to the show, we saw a high school stage production of Dr. Horrible’s Sing-A-Long Blog. I was very impressed many of the actors from Dr. Horrible attended to support the high school students, including Nathan Fillion and Felicia Day.

Fillion was extremely gracious, signing autographs and talking with students. Kindness to others is a wonderful virtue.

Not being shy (I was actually terrified), I decided to talk to Felicia Day. A very cool woman. My brother violated every Man Law by saying it was time to go to dinner while she was asking me questions about my career.

No, I Am Your Father

My mother took me to see Empire Strikes Back the day it opened. I was 5. We waited for hours in the movie theater parking lot sitting on a blanket. As the story goes, I watched that Sci Fi epic with my feet barely going to the end of the seat, completely enthralled by that masterpiece. I reportedly did not blink the entire film.

There are few other movie shockers than Darth Vader saying, “No, I am your father.” I can still recall the gasps and total shock of the entire movie theater, as if thousands of voices screamed out in terror, then nothing.

Today, that is forever engrained in pop culture to the point where the shock has been heavily diluted to common knowledge. At the time, it was masterful storytelling that threw every moviegoer a sucker punch they did not see coming.

A good friend of mine honored this film in the geekiest way possible: He named his son Luke. That’s right, he can honestly say, “Luke, I am your father.”

Bow Ties Are Cool

I love the law. I also love being a Geek, because Sci Fi is one of the best parables for describing the human condition. It also usually involves space ships.

I hope you enjoy The Legal Geeks, as Jessica and I analyze the Law and all things Geek.

And who knows, the future isn’t written. We might have an eDiscovery/Geek panel at Comic-Con one day.