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Wednesday, October 2, 2013

Abraham Lincoln and the Law

Lincoln wrote, in a draft of a speech dated 1859:

          "The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping do all the labor pertaining to it which can then be done.
           Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.
          Resolve to be honest at all events, and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation rather than one on the choosing of which you do, in advance, consent to be a knave."

          Lincoln was a forceful advocate for causes he believed in, but he would no doubt be surprised, and dismayed, by the ease and frequency with which Americans resort to litigation to resolve disputes.

(Source: The Essential Lincoln--Speeches and Correspondence; Edited by Orville Vernon Burton; Hill and Wang, 2009)

Monday, March 5, 2012

The Rule Against Perpetuities in Film

     Matt King, the main character (played by George Clooney) in The Descendants, is forced to engage in the parenting of his two difficult daughters when his wife is seriously injured and left lying in a coma. King is a workaholic lawyer whose idea of relaxing is to summarize depositions. His anxiety as a parent is complicated when he learns that his wife was having an affair with a local real estate broker. A second plot thread involves King's position as sole trustee of a family trust that owns 2500 acres of prime Hawaiian real estate. Two developers have offered hundreds of millions of dollars for the land, and King alone will decide whether he and his haole (but with the distant blood of Hawaiian royalty) relatives will achieve instant wealth or whether they will preserve the natural beauty of this property.
      Much of the pressure bearing on King comes from the statute of perpetuities about to rear its ugly head. Gratefully, the director makes no attempt to explain the rule or its ramifications. Rather, the rule is simply presented as a temporal deadline dictating that a choice must be made. Law students and lawyers can accept this lack of explanation as they have long joked about the incomprehensibility of the rule against perpetuties while hoping they never confront it in their practices.
     This is not the first time the rule against perpetuities has been an important plot twist in a mainstream movie. In Body Heat the lawyer in the movie, Ned Racine (William Hurt), drafts a will intentionally violating the rule against perpetuities in a plot to allow his lover to inherit the estate of her wealthy husband. Critics have noted that the movie misstates the actual consequences of the will. This is quibbling, though, as the rule against perpetuities, best known for its conceptual murkiness, has proven to be an effective plot mechanism. Detailed exposition of the rule would do little to advance the drama of the movie.

Monday, May 30, 2011

Conscious Capitalism

     In an April 4, 2011 article The National Law Journal discusses Bentley University professor Raj Sisodia's concept of "conscious capitalism".  Simply stated, Professor Sisodia suggests that corporations, or other business entities, that have a "sense of higher purpose" often excel financially as well. As a starting point Sisodia suggests that management ask itself whether the firm would be missed if it disappeared. If the firm is fixated only on its own bottom line it is less likely to be able to answer that question in the affirmative.
     Sisodia suggests that firms should not be driven by the notion of creating value for themselves, or by creating value for their clients at the expense of others. Implicit in this concept is the idea that you can seek value for your clients without doing so at either the expense of third parties or the firm's own success. Firms that practice "conscious capitalism" are often highly profitable says Sisodia. Of course, Sisodia notes that there are forms of compensation other than money, and firms should not too quickly discount these benefits of doing well by others.

Wednesday, May 25, 2011

What They Say ABout the Law

       Archibald MacLeish (1892-1982) is best known as a poet ("Ars Poetica", etc.), but he was also a lawyer. He once wrote the following in an article called "Apologia":

          "The business of the law is to make sense of the confusion of what we call human life--to reduce it to    
            order but at the same time to give it possibility, scope, even dignity."
      With respect to his chosen craft of poetry he added:

           "But what, then, is the business of poetry? Precisely to make sense of the chaos of our lives. To
             create the understanding of our lives. To compose an order which the bewildered, angry heart
             can recognize. To imagine man."

Sunday, May 22, 2011

Work for Free or Else

    There has been a debate going on in Mississippi about a proposed rule that would require every attorney to perform pro bono ("for good"/free) work. There has been an additional proposal in some quarters that would allow attorneys to "buy out" of the pro bono requirement for $500.00.
     It is a noble concept that every lawyer--every person for that matter--should do good works for those who cannot afford their services. Forced altruism is a miserable and untenable concept, however. Many lawyers already do such work and feel they are contributing to the public good. Lawyers should also have the option of not doing such work. Even to lawyers with liberal leanings, like me, the idea of mandatory pro bono smacks of extreme government overreaching. The idea also has a slight flavor of narcissism: we lawyers and the services we provide are so essential that no citizen, regardless of their ability to pay, should be denied them. Legal services certainly are important, sometimes critically so, but no justification exists for forced pro bono. The law already requires that indigent criminal defendants be provided with counsel at little or no cost. This requirement stems from the 1963 case Gideon v. Wainwright.

Sunday, May 15, 2011

Doing good for the homeless.

     St. Francis House is a day shelter in Boston that serves homeless men and women. Based on the idea of affirming the value and dignity of every person, St. Francis House provides food, shelter, clothing, showers, medical care, and mental health and substance abuse counseling. The staff also provides educational and rehabilitative services to help the homeless find jobs and housing, and otherwise improve their lives.
     Sometimes St. Francis House reaches out to the community to obtain services that it would otherwise be unable to provide. For example, St. Francis House provides its clients a legal clinic at no cost. Clients are able to sit down one-on-one with a volunteer lawyer to discusss whatever kind of legal problem they have. At various times these lawyers have been provided by private firms, The Catholic Lawyers Guild, the Lawyers Clearinghouse on Affordable Housing and Homelessness, and other organizations.
     The types of legal problems run the gamut: criminal cases, landlord-tenant issues, problems regarding eligibility for public assistance, employment discrimination, and even estates and personal injury, and other types of cases. Sometimes a client's legal problem is a creation of a psychiatric problem. Everyone is treated with dignity. Legal problems don't always get solved; sometimes there really isn't a legal problem, sometimes a critical deadline has passed, sometimes the client just needs to vent.
     The lawyers who staff the legal clinic do so with no fanfare, gladly giving up some of their valuable time to help the less fortunate.

Wednesday, April 27, 2011

The government never loses.....

     I was once told that somewhere, on some federal building, is the inscription "The government never loses when justice is done to one of its citizens." I don't know what building the inscription is on; I don't even know if the inscription exists. However, for any lawyer who does criminal defense work, as I do (among other things), this epigram, whatever its source, is likely to resonate.

     This statement underscores the idea that a criminal trial, though adversarial, is not a competition. It is instead a mechanism to come as close as possible to learning the truth about an event and a particular person's role in that event. The word "verdict" come from the Latin for "speak the truth". The finder of fact, whether a judge or jury, listens to the evidence and is then charged to render a verdict, to speak the truth.

     I have been asked a number of times whether I ever represent anyone I know is guilty of the crime they are charged with committing. "How can you represent anyone you know is guilty?" is a variation of this question. These questions are amusing to a lawyer because most people charged with a crime have done something that resulted in them being charged. Not everyone, as there are people charged with crimes who have done nothing wrong, but most.

     As I said earlier, the criminal justice system is a mechanism, a mechanism through which the government seeks to meet its burden of presenting enough credible evidence for a finder of fact to believe, beyond a reasonable doubt, that someone is guilty of commiting a crime. The rules that apply to criminal trials are more than "technicalities". They are a check on the government's ability to prosecute its citizens. Look around the world and you can see countries where the absence of these "technicalities" results in brutality and injustice. It's good for governments to have checks on them; it keeps them accountable to their citizens.

     When there is a fair trial, where the rules of court and the law have been correctly applied, justice has been done, in theory at least, whether the defendant is acquitted or found guilty. An acquittal after a fair trial is not a loss for the prosecution because our system is designed to allow for acquittals. Hence the saying that the government never loses when justice is done to one of its citizens.