One Last Dispatch Before the Siege

I thought I'd take a brief moment, while the baby is asleep and I probably should either be doing dishes or studying, to catch everyone up. As you may already know, classes have ended. I am now in the midst of "Reading Days," during which I am supposed to study virtually nonstop in preparation for my finals, which take place next week, on Tuesday and Friday. I haven't studied non-stop, but I have done at least a few hours every day, and I'm feeling pretty good about where I am at the moment. I'll certainly do a final post once it's all over, but meanwhile, here's an overview of my final weeks of class:

Torts

Having completed the causation discussion, we proceeded to damages, which is shorthand for "How many ways can you get money out of a person?" I learned that there are nominal damages (tiny, symbolic awards for when no real damage was done), compensatory damages (monetary reimbursement for medical bills, lost income, pain & suffering, etc.), and punitive damages (awards meant not to compensate the victim, but to punish the wrongdoer, in cases involving recklessness or intentional harm). Only compensatory damages are typically available in negligence claims, so that's mainly what we talked about. Unsurprisingly, there are many, many ways to get money out of someone and call it "compensation." The pain-and-suffering stuff is the most interesting, and includes things like "loss of enjoyment" damages, where the court decides just how much I was enjoying my life anyway in order to decide how much I should be paid for not being able to do so anymore; "wrongful death" actions brought by legal beneficiaries for economic losses they've suffered due to the victim's death; and my favorite, "survival actions," where, among other things, if I die in a plane crash, and was aware that I was going to die, my "estate" can sue the airline on my behalf, not only for my death, but for the emotional distress I suffered from my "foreknowledge of doom." One example we read is just too ridiculous not to recount: A plane crashed when its left wing became detached from the plane. Attorneys argued, successfully, that the people on the left side of the plane would have seen the wing becoming detached, and therefore would have had advance warning of the crash, leading to a longer period of emotional distress for them than for the people on the right side. So what happened? The families of the passengers on the left side got more money than the families of the people on the right. Unfair? Maybe even psychotic? You didn't hear it from me.

We then talked about some defenses a defendant might assert, mainly contributory negligence (i.e., sure I was negligent, but so were you, so you should share some of the responsibility) and assumption of the risk (i.e., sure I was negligent, but if you didn't want to get hurt, you shouldn't have gone skiing in the first place). And finally, we actually left the subject of negligence to cover, very briefly, the intentional torts of assault and battery (two separate things in civil claims, though they're often brought together). The most interesting things from this discussion were (1) "intent" has nothing to do with "motive." If I voluntarily do something that is "substantially certain" to cause you harm, I "intended" to harm you in the eyes of the law. (2) "Assault" just means making someone "apprehend" that you might come into "harmful or offensive contact" with them. If I approach you menacingly, you can sue me for assault, even if I never touch you. And (3), "battery" includes not only hitting someone, but also touching them "offensively" (e.g., giving them an unwanted kiss), or even hitting something they're holding, or the car they're sitting in (as these are considered "extensions of the person"). Bottom line? Be careful out there, folks. You could be assaulting someone and you don't even know it.

Civil Procedure

OK, I'm gong to seriously gloss this one over, because if I don't, no one will ever read this blog again. What we've covered since late October in this class encompasses so much mind-numbing detail and interrelated rules and procedures I can hardly believe I've come to a point where it all makes some kind of sense. But the things is, it does, which I can only attribute to the indefatigable efforts of our professor. She was truly amazing.

So here's the not-even-remotely-in-depth version: In our final four weeks, we studied pleadings and motions, how to join parties and claims together, the "Erie Doctrine" (when to apply state law in federal court), what the ethical expectations are for lawyers concerning what they present to the court, the basics of "discovery" (the process by which the parties in a suit get information from each other before the trial), summary judgment (what happens when one party asks the judge to decide the case before trial, on the basis of what's been revealed in discovery), and "preclusion" (under what circumstances a particular claim or issue is precluded from being tried, because it was -- or should have been -- tried in a previous case). I think that's it. If it sounds like a lot, believe me, it feels like even more. To illustrate: All of this takes up about half of my outline (where I try to distill everything we've learned into an organized format) for the entire course, though it was crammed into only four of the fourteen weeks in the semester. It was quite a ride.

Lawyering Process

Lest I forget that there actually was a third class demanding some of my brain power this semester: We did finish up the first half of Lawyering Process, the only course that will continue into the spring. I had to write a final legal memo, fifteen pages long, about the enforceability of a non-compete agreement in an employment contract. I won't say I enjoyed it, but I know it's invaluable experience for the future.

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So that's it. I will learn nothing new until mid-January. All that remains is for me to prove to my professors that I really know and understand this stuff (or at least most of it), so they let me come back. There have been times in the past few months when I actually worried that I might not manage that. But no more. Confidence is high, and I still have days to study. So wish me luck, and I'll report back when it's all behind me.

What I'm Learning, Part 2: Civil Procedure

OK, this one's going to be a toughie, but I'm going to give it a shot.

Here's what the DU Course Catalog has to say about Civil Procedure:

Students enrolled in Civil Procedure learn how Constitutional statutory and judicial rules frame the determination of court controversies. They also explore the doctrines, remedies, and other principles pertinent to judicial dispute resolution.

After three weeks in the course, here's what I have to say about it: Jurisdiction is really freaking complicated.

Jurisdiction is, of course, just one of (I'm sure) many crucial elements of civil procedure, but so far it's pretty much all we've talked about. So what is it? As my professor would say, "Jurisdiction is power." Namely, the power of a court to hear and decide cases, based on who's involved and what they're about. Jurisdiction breaks down into personal jurisdiction and subject jurisdiction, but we haven't gotten into the subject kind yet. Personal jurisdiction is power over people, or their property, and the big question is: When does a state have jurisdiction over a person (or his or her property) who doesn't want them to have that jurisdiction?

There are four ways to get jurisdiction without much of a fight: Domicile, Presence, Consent, and Adjudication of Marriage. If you live in the state, or happen to be there long enough for someone to hand you a summons, or say OK, you can have jurisdiction over me (maybe just by failing to say otherwise), then that's that. And if your spouse lives there and wants to divorce you, they can. So far, so good. The "presence" thing gets a little weird when a state gets jurisdiction over someone just because somebody handed them a summons while in an airplane flying over that state (that totally happened), but at least it's a simple concept: you're here, we gotcha, end of discussion. And really, all of it was pretty simple back when people got around in wagons and had to have a really good reason to take the time and effort to move from one state to another. But nowadays?

The big case we read, and to which we refer back over and over and over again, is about shoe salesmen in Washington State in 1945. Seriously. It's called International Shoe Co. v. State of Washington and it totally changed everything about personal jurisdiction. I won't bore you (even more) with the details, but basically the court decided that there was something called "minimum contacts" that could make one subject to jurisdiction in a particular state -- like maybe employing some shoe salesmen there for several years. Unfortunately, what constitutes minimum contacts is not remotely straightforward, because the court in Shoe threw in a bit about not "offending traditional notions of fair play and substantial justice" in granting jurisdiction. Courts have basically been trying to decide what that really means ever since.

OK, this is getting really long and dull. Maybe you noticed. To finish up, I'll just say that it's amazing how hard it is to figure out who gets to adjudicate what once you have people driving and flying all over the place and commercial goods getting sent to and from pretty much everywhere in the world. And the Internet? Don't even ask. According to the syllabus, next week we move on to subject matter jurisdiction, and truthfully, I'm a little relieved. I think my brain needs a change of gears, however small, rather than ever-increasing complications. Just a little time to let things settle is all I ask.

I'll probably try to do these little summaries every few weeks. I may or may not be able to make them more interesting to all of you, but I think they do force me to think back and put everything in context. (Even if what I've written here is a complete mess, I actually feel like it sort of makes sense to me.) In any case, that's it for now (my only other class is called "Lawyering Process," and it's all about how to write briefs and memos and stuff, so I won't bother summarizing it for the public at large). Thanks for bearing with me.