Overdue Progress Report

Did I say "biweekly"? Apparently, I meant "bimonthly."

The Spring semester is now virtually over, with only 2.5 weeks remaining before the reading period, and all I can think to say is, boy, it's nothing like last semester at this time, at least as far as I can recall. I'm not sure how to characterize the difference generally. Maybe it's just that I feel like I've been a bit less . . . diligent? I don't know. I do know that just today I started seriously trying to outline my courses, which I know I put off last semester, too, but I don't think I waited quite this long. And for one of my courses -- Contracts -- I'm really hoping the outlining process will be what makes it all come together, because right now, I feel like I just know a bunch of random tidbits with only the most tenuous of connections between them. I certainly do not feel remotely prepared to be tested on any of it. So yeah, I'm hoping the next few weeks are very productive.

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.

And We're Back

It's been more than a month since my last law-related post, for which I apologize. Most people reading this probably already know that this is largely due to the birth of my daughter, Eleanor, at the beginning of the month, followed immediately by a traumatic midterm experience, and thence, of course, by normal day-to-day parenting, studying, and general stressing out.

I know: Excuses, excuses. Suck it up, Chris.

So now, after six weeks of silence, where to begin? There was that midterm, mentioned above, which was a travesty I've already wallowed in far too long and too deeply. Let's just say, I was not prepared, and I imploded spectacularly, and spent the next few weeks completely reorienting myself to the whole law school process. The good news is, the test doesn't actually count against me, and the better news is, it served very well to show me just how inadequate my studying up to that point had been, and I'm now feeling much better about things. (At the same time, I acknowledge that the whole law school experience so far has been characterized by a constant swinging between feelings of total comprehension and utter incompetence, which has left me hesitant to count on any good feelings lasting more than a week. But we will see.)

To quickly bring everyone up to speed:

In Civil Procedure, we have moved past the (very lengthy and convoluted) question of personal jurisdiction, and through something called subject matter jurisdiction, which is, thankfully, a little bit simpler than the personal kind. It's basically just about what kinds of cases federal courts are allowed to hear. (State courts have general jurisdiction, so they can hear almost anything.) The two main categories under the subject matter heading are (1) diversity jurisdiction and (2) federal question jurisdiction.

(1) Federal courts may hear a case when the parties are "diverse," meaning none of the plaintiffs are domiciled in the same state as any of the defendants. There are a few complications involving businesses and "aliens," but that's the gist of it. Oh, and the "amount in controversy" in the case has to exceed $75,000.

(2) They may also hear cases which involve (or even better, "arise out of") a "federal question," e.g., a civil rights violation or First Amendment issue. Again, and of course, there are complications, mostly involving how you may or may not tack on state law issues to your federal claims, which then bleeds into the topic of "supplemental" jurisdiction.

After all that, we discussed under what circumstances a case may be "removed" from state court to federal court, and then proceeded to the topic of "venue" (determining which courts within a given judicial system would be "the most sensible and convenient" in which to litigate), and now, to "pleading" (how to write the original "complaint," how to answer it, that sort of thing). One interesting thing about our progress (at least to me) is that we are moving steadily along a spectrum from very Constitutional issues (personal jurisdiction) to those much more governed by statute and the Federal Rules of Civil Procedure. This doesn't really makes things more or less complicated, but definitely requires a different approach in terms of studying and processing the information.

As for Torts, we're still talking about negligence, but whereas we had previously only looked at the rather involved issue of who owes what kind of duty of care to whom (duty and breach, the first two elements of a negligence claim), we have now moved into the realm of causation (the third element), which is much more up my alley. Causation encompasses both "actual" cause and "proximate" cause. Actual cause is usually pretty straightforward: did your negligent act bring about my injury? Or put another away: But for your negligent act, would my injury have occurred? If you negligently ran a red light, but my injured head results from my coincidentally tripping over the curb at the same time, there's no causation. On the other hand, if you hit me and break my leg, and the ambulance taking me to the hospital gets in an accident and I break my arm, and at the hospital instead of putting my arm and leg in a cast they accidentally amputate them, and two years later I am unable to escape from a fire because of my missing limbs and I die, there is, at the least, actual cause. None of it would have happened if you hadn't been talking on your damn cell phone.

Which brings us to "proximate cause." This really has almost nothing to do with causation, apart from the fact that you can't have proximate cause without actual cause. It's really all about how far a person's liability ought to extend. In the above example, you probably should be held accountable for my broken leg, but what about the rest? Are you liable to my family for the lost income and emotional distress brought about by my death two years later? As you can see, things get very interesting very quickly, and I think this has been my favorite part of torts to date. There are philosophical questions involved, which ties in nicely with my other interests, but I think what I love about it is how it's all tied to practicality. Philosophically, every event has infinite causes, and infinite consequences, but this is real life, and we have to draw a line somewhere. Seeing how different courts, at different times, have gone about drawing that line, and trying to figure out where I would draw it, is fascinating. (In case you're curious, although you'd still be liable for the broken arm I got in the ambulance, most likely the hospital staff's gross negligence in amputating my arm and leg would be considered a "superseding cause," and would therefore cut off your liability at that point. Lucky you.)

So, steady on. Shockingly, there are only four weeks of class left (followed by a little over two weeks to study for finals), so it will all be over soon, one way or another. Not so shockingly, I'm feeling very ready for that moment. Not necessarily because law school is so hard, but more because I'd like to be able to spend a bit more time with my family. It's not much fun having to decide between being a good student or being a good father and husband; even worse is feeling like I'm sort of doing a half-assed job of each. Thank goodness Amy and Dashiell (and even Eleanor, already) are so wonderful and forgiving. The best thing I can do is try to deserve them.

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.

What I'm Learning, Part 1: Torts

I thought I'd try something a bit different today, and maybe attempt to give my non-law-student readers some idea of the sorts of things I'm actually learning in this fancy new school of mine. I have no reason to believe I can do this in anything like an entertaining manner, so I won't be offended if you doze off and/or skip to the end after the first couple of sentences. Plus, I'm new at this, so I'm likely to get some of it dead wrong. With that in mind, let's start with Torts.

So a tort is basically a wrong done to another, leading to civil liability. By civil, I mean non-criminal, meaning it's mostly about money, rather than jail time. So far, we've been focusing on the idea of negligence -- just one of several "theories of recovery" we will eventually cover -- and a big part of figuring out what counts as negligence is figuring out what a "reasonable person" is. If you injure someone (physically, mentally, economically) while behaving in a way other than how a reasonable person would under the circumstances, chances are, you're negligent. Of course, the whole idea of the reasonable person is a legal fiction, but lawyers and judges and such tend to think of it as an objective standard. In other words, there may not be any actual reasonable persons out there, but we all know how they would act if there were.

Anyway, whatever a reasonable person may be, not everyone gets to (or has to) be held to that standard. We've learned that children are excepted, as long as they're engaged in "childlike activities." But if they're driving a car (or a snowmobile, as in one of the cases we read), for example, they're treated as adults, 'cause that's an adult thing to do. The physically disabled have a different standard, but not the mentally disabled. (And no, you can't get off just by claiming to be really dumb, either. Trust me, somebody already tried it.) Then there are people held to a higher standard, like "common carriers" -- bus companies, subway lines, airlines, etc. -- who are expected to take the "utmost care" achievable by human means...or something like that. And there are doctors, of course, who are expected to be rather better at, say, heart transplants than just your average "reasonable person." And the list goes on.

There's all kinds of other stuff that goes into deciding what's reasonable. Statutes enacted by the legislature can make certain actions -- or the lack of certain actions -- negligence by law. But some of them can be ignored under certain circumstances, like when obeying them would actually put you in danger. And then there's custom: if a certain behavior seems reasonable to an outsider, but isn't customary in your line of work, or vice versa, you might get cut some slack. And depending on the laws and facts involved, a judge may make these determinations or may leave it to a jury. Oh, and it may just depend on what state you're in. Or what decade.

So basically, what I've been doing is reading case after case (after case after case) exploring these issues from various intricate angles. My current count shows that we've read and/or discussed seventeen cases in some kind of depth, and have encountered more than 70 others in the course of that reading and discussion. That's over the course of six class sessions. So yeah, there's a lot of reading, and a lot of information. And did I mention that all of the above concerns just one of the four factors to be considered in determining negligence? Which, again, is only one of several theories of recovery we need to learn about? We've got a long way to go. Thankfully, so far, I'm loving it.

That's probably enough for now. Stay tuned for the next post all about Civil Procedure. It's more interesting than it sounds.