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Revolution Review: Where are all the lawyers?

JJ Abrams has made some incredible television (in addition to a fantastic reboot of the Star Trek movies), even if those series don’t always have strong endings (I’m looking at you, Lost).  And Revolution could be the latest in his string of great shows. Of course, watching this show requires me to get over my dislike of post-apocalyptic shows and books, a dislike that may be based in part on the fact that sci fi references to apocalypses often refer to all the lawyers being killed. (On the plus side, io9 just had an encouraging piece on nine predicted disasters that never came to pass…thank goodness.)

Below are my initial impressions of the show and where it could go.

Hunger Games

First, JJ clearly has a thing for attractive, young female leads with long, brown hair.  Charlie is no exception.  While I appreciate her use of a crossbow (and the possible nod to Hunger Games), I’m reserving judgment on whether she’s going to be closer to a Kate (so close but her potential was never realized) or a Sydney (only slightly less cool than Spy Mom and Spy Dad).  [Side complaint: Jennifer Garner was so awesome as a bad-ass secret agent.  Why does she only play saccharine-sweet characters now?]

Second, Miles is really good at killing people, but apparently a poor judge of character (given his previous connection to the mysterious General Monroe).

Third, watching Grace use a computer (while possessing an inhaler) was certainly intriguing.  It was very reminiscent of Lost, but if this foreshadows another dive into the muddled mix of science versus religion with no good answers, I am not sticking around for another cop-out ending.  Plus, if she’s part of a some super-secret group who can still use computers, is she really dumb enough to so easily get caught in a lie?  Or did she want Danny to be recaptured?

Little House on the Prairie

Fourth, and finally, are there any lawyers left? This first episode obviously set up a world in which much of what we take for granted in today’s world is gone and everyone is living a life more familiar to Laura Ingalls Wilder than most Americans living today.  But there were lawyers in Laura’s day – and for many centuries before that.  Criminal rights, property rights, the resolution of many disputes among adults and businesses…these are all reasons why lawyers are needed, with or without electricity.

Of course, lawyers need a stable system in which to operate and the impression I got from most of the episode was that there was very little government structure left.  But by the end of the episode it was clear that the mysterious General Monroe clearly controlled a large organization and, bad or good, he could still use the assistance of lawyers.  Plus, Miles made reference to other republics, which implies that there were still ruling structures in place.

Revolution is obviously a mystery.  What caused the blackout?  Why was there a blackout?  Why can Grace (and mysterious “others“) still use electricity and access computers?  But part of the attraction is also imagining what would happen if we all instantly regressed a hundred years, give or take a decade.  Would we still keep some of the principles that have always been so important to this country – the ideas behind the constition; the belief that we are a nation of laws, not of men?  And, if there were still laws, would we recognize them?  We’re only one episode in, so I’m sure the questions will continue to build, but I’m interested to see how they answer some of these questions (especially about how the societies are governed).  And they’d better not wait too long to give us some answers!

Star Trek: The Best Legal Issues from Each Generation

Joshua Gilliland (@bowtielaw) and Jessica Mederson (@eDiscMatters) review the top legal issues from Star Trek, The Next Generation, Deep Space 9, Voyager, and Enterprise.

An ode to footnotes

Old law books

One of the surest signs that I’m a lawyer is that I’m conditioned to look for footnotes – and I love them!  Any time I read a statement of fact I automatically glance down to the bottom of the page and am disappointed if there’s nothing there.  So, in honor of my deep feelings for footnotes, I give you the following three reasons footnotes rule:

Footnotes

(1)    It’s time to put up or shut up.  The great thing about legal footnotes is that if you state a fact in a brief, you’d better have a footnote to back it up.  If you try to claim something (“It is well-established that courts can sanction parties after cases have been dismissed”), you’d better cite some cases or no one is going to pay much attention.  Think of how great that would be if the same standard was imposed on other professions – especially politicians!  What if a politician couldn’t make a claim (“Subsidizing the making of science fiction movies has been shown to increase the number of children interested in math and science”) without a footnote showing the support for their claim (See The George Lucas Foundation)?

(2)    CYA.  I first learned this handy-dandy tool when I was working on a never-ending research memo for a partner as a young associate.  The question I’d originally been given had led me down several rabbit holes and it was a senior associate who told me the secret to ending the madness: just add a footnote cutting off the questions (“Issues X, Y, and Z are beyond the scope of the current research memo but that I would be happy to be research those issues separately”).  The same idea works in briefing filed with the court, where you can use footnotes to make sure you don’t make waive an argument (“Plaintiff does not intend to waive any arguments regarding scope of the contract”).

(3)    Funny and snarky asides: One of my favorite quotes is by Alice Roosevelt Longworth, who said, “If you haven’t got anything nice to say about anybody, come sit next to me.”  That’s footnotes, which can be used by parties for bitchy asides (“It is not apparent to Defendants why the plaintiff made this claim, as it is irrelevant, but Defendants will address it nevertheless”).  And even judges can use them to smack down parties (or their lawyers) for improper behavior or arguments.  Even better, as discussed in my post on judges and Star Trek, judges can use footnotes to be funny (my favorite is the Romulan footnote).

Vulcan-Salute

 

 

The Marital Privilege & Privilege Logs

Explanation of the Marital Privilege and requirements for an effective
privilege log. Case examples include Gooden v. Ryan’s Rest. Group,
Inc., 2006 U.S. Dist. LEXIS 74944, 7-9 (W.D. Ky. Oct. 12, 2006) and
United States v. Yim, 2012 U.S. Dist. LEXIS 5999 (W.D. Wash. Jan. 19,
2012).

(No part of this recording should be considered legal advice.)

The Enterprise Precedent: Star Trek on Human Rights

Star Trek’s impact on our culture as an allegory of what it means to be human cannot be understated.

The Star Trek The Next Generation episode The Measure of the Man is perhaps one of the best Trek stories of defining what it is to be alive and free.

Another that is easily overlooked is the Star Trek Voyager episode Author, Author, where the holographic Doctor’s holobook highlights the plight of Mark 1 Emergency Medical Holographs, who are being used for mining work.

The legal twist to the story is the Doctor is not found to be a legal person at the end, but did have control over his creative work.

A Story on Rights

The Measure of a Man focuses on Lt. Commander Data and the attempt by Commander Bruce Maddox to take Data apart to learn how Data worked.

Maddox’s goal was simple: there are many dangerous jobs in space travel. Every star ship having a Data to do the dangerous work would make the universe a safer place for real living lifeforms.

Adding insult to injury, Maddox only referred to Data as “it.” Moreover, Maddox shows no respect for Data, with entering Data’s quarters without permission. Further endearing himself to no one, Maddox proclaimed he was “Sick to death to hear of rights” when Captain Picard stood up for Data’s rights and personal freedom.

It is no surprise Data says “No” to Maddox’s “research,” because Maddox’s research lacked specifics and the probability of Data surviving it.

Since Maddox spent a fair amount of timing plotting to experiment on Data, he was prepared with transfer orders for Data.

Not wanting to be taken apart by someone who did not know what he was doing, Data decides to resign from Starfleet.

Small problem: there is the legal argument Data is a machine, thus Starfleet property, and could not simply resign.

Going Legal Like No Had Before

Captain Picard goes to the local JAG officer, Captain Phillipa Louvois for help in fighting the transfer order (it is interesting to note that a lawyer was named after François Michel Le Tellier Louvois, the minister of war for King Louis XIV).

The two Captains have a less then stellar history, as Louvois prosecuted the court martial against Captain Picard for the loss of the USS Stargazer.

To make this complicated, Louvois and Picard apparently had a romantic relationship (that possibly overlapped with the court martial).

This could be problematic because 1) One would think a lawyer would know better then to prosecute someone the attorney had a relationship with (apparently there are no ethical rules on conflict of interests in the 24th Century) and 2) If you zealously try to destroy someone’s career, they generally don’t want to date you afterwards.

There is no Hallmark Card or Holodeck Program, for “I am sorry I tried destroying your life without mercy. It was purely professional. Please take me back.”

The Taylor Swift song “We are never getting back together” would be very fitting in such situations.

And yet, Picard goes to Louvois for help, because she is the only one who can help him.

The O’Connor Effect

With the complex romantic subplot aside, Star Trek’s treatment of women in the practice of law is very admirable. The 1967 Original Series episode Court Martial depicted Lt. Areel Shaw as a strong prosecutor who argued her case against Captain Kirk with force and courtroom command. That was filmed at a time when only three percent of attorneys in the United States were women.

In The Measure of A Man, Phillipa Louvois is of equal rank as Picard, and following the tradition of Lt. Areel Shaw, Louvois prosecuted her former boyfriend. Moreover, Louvois is the officer-in-charge of the JAG department of her sector.

Furthermore, Louvois does not act as the prosecutor in the case, but the Judge (one could argue the local Admiral technically should have heard the case, but the story is better showcasing the advancement of women in the practice of law with Louvois as the judge).

The Measure of A Man aired in 1989. In the 22 years that followed Court Martial, Sandra Day O’Connor became the first women Supreme Court Justice, plus an increase of women going to law school and entering the practice of law. While there are many significant challenges for women attorneys today, The Measure of a Man continued the tradition of showing strong women in the practice of law as a very important subtext.

Who Has Rights?

Captain Picard was given the duty of defending Lt. Commander Data from being a piece of property. Commander Riker was given one of the worst duties ever with having to prosecute a case that his friend essentially did not have any rights as a living being. If Riker had not taken the case, Louvois would have summarily ruled for Maddox.

Once again, Star Trek made a very pointed reminder of egregious wrongs in the past. The argument Riker had to make was in a United States Supreme Court decision written by Chief Justice Roger Taney in 1857. The 200 page opinion is a nightmarish rejection of the Declaration of Independence:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as salves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

Scott v. Sandford, 60 U.S. 393, 403 (U.S. 1857)

The horror of the Dred Scott opinion only becomes more terrifying with each page. Chief Justice Taney stated the following on the founding of the United States:

It then proceeds to say: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appeared, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men — high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

Scott v. Sandford, 60 U.S. 393, 410 (U.S. 1857)

A Supreme Court opinion holding the United States was a country of slave owners, and no State or the Federal Government could eliminate slavery in the name of “property” should make every American stand up and say “No.”

And many Americans did more then simply say “No” that between 1857 to 1865.

It is no question that this abomination of a Supreme Court opinion helped enable the new Republican Party to elect Abraham Lincoln as President in 1860. Historically speaking, there was no turning back from the Civil War after Dred Scott.

Better Angels of Our Nature

Commander Riker’s arguments that Data lacked rights was extremely damaging (It is worth noting the procedures for swearing in a witness are the same as Court Martial).

It takes a reflective Picard visiting with Guinan to realize what was really at stake: Maddox wanted disposable people, whose welfare you did not have to consider.

Captain Picard’s return to the courtroom was a two step process of a direct examination of Data and examining Maddox as a hostile witness.

The issue of whether Data had rights turned on whether he was sentient. Maddox testified that to be sentient one had to have 1) Intelligence; 2) self-awareness; and 3) consciousness.

Maddox’s examination showed the Data possessed the first and second requirements for sentience.The third was not answered verbally, but only an uncomfortable stare by Commander Maddox.

Picard’s questions turned into a closing argument, focusing in on Maddox’s goal to construct more “Datas.” The final rhetorical question is if thousands of Datas are constructed, isn’t that a race?

In the end, the trial was not about “property,” but of  servitude and slavery.

Captain Louvois recognized the long term impact of the issue (or the fear of being in the historical company of Roger Taney), found for Data.

Maddox himself is also redeemed, realizing that Data had the right to determine his own fate. Since Maddox only saw Data as a machine, he originally did not see the bigger moral issue at stake. Maddox changed his position and canceled Data’s transfer orders.

Captain Picard also made a significant showing of forgiveness to Captain Louvois with an invitation to dinner after the trial.

A Note on Freedom

American history is sadly full of examples where freedom has been cruelly suppressed. In 1802, Postmaster General Gideon Granger wrote a confidential letter to Senator James Jackson (Georgia), chairman of the Committee on the Posts. Granger argued against allowing African Americans to become post riders delivering the mail, because it would require the riders knew how to read and interact with people. Granger stated the “danger” as follows:

They will learn that a man’s rights do not depend on his color.

Bruce Levine, Half Slave and Half Free: The Roots of Civil War, pp 12-13, The Noonday Press, 1992.

American history also has the brilliant examples of what makes the United States a shining city on a hill, because “We hold these truths to be self-evident, that all men are created equal” is not empty rhetoric. The silent monuments at Gettysburg and Pointe Du Hoc say more then any speech can on what Americans have done for freedom.

And those ideals of freedom have been very strongly presented in Star Trek.

Star Trek has for 46 years told stories of racial and gender equality. The stories translate the suppression of “artificial life rights” as an allegory for human rights. More importantly, Star Trek is an optimistic vision of how the world could be, and not how the world was in the past.

The Legal Geeks Interview Amber Schroader

Jessica Mederson & Josh Gilliland interview Amber Schroader, CEO of Paraben Corporation, on the Paraben Forensic Innovation Conference, to be held in Park City, UT, November 3 to 6, 2012.

Both Josh & Jessica will be presenting at PFIC, including a Legal Geek panel!

TRON eDiscovery

Attorneys Jessica Mederson and Josh Gilliland discuss how Tron is an allegory for electronic discovery. Jess and Josh discuss other topics explored in Tron, including Net Neutrality and the Stored Communication Act. Josh outlines major issues in electronic discovery and solutions.