The strength of the American legal system

The strength of the American legal system

Written by Ram Sidi

     Before I begin, I would like to emphasize that this is a blog, not an academic review, and therefore, should be treated as such.  In this blog I do not attempt to provide an answer for the legal and moral issues that follow, but rather wish to point out issues for further thought.      

On Saturday night, 16 February 2002, a terrorist wearing a 25-pound nail-studded explosive device strapped to his body, blew himself up in a packed pizzeria in the Israeli settlement of Karnei Shomron. The blast killed three teenagers (a 15-year-old girl, a 16-year-old girl, and a 15-year-old boy) and injured 27 people, six of them seriously.

The two of the girls who were killed, Keren Shatsky, 15, and Rachel Thaler, 16, were American citizens.  The American families of the victims brought a tort suit against the Palestinian Authority (PA) in the federal court of the District of Colombia, claiming that the PA was behind the terror attack and directly responsible for the deaths of their girls.

I have a special interest in this case and have been following it for years.  However, until recently, I had never approached this case from a legal point of view or seen it through the eyes of a lawyer.  I cared only for the end results.

The litigation started on November 2002, yet for years the families were lacking sufficient evidence to clearly establish that the PA was indeed behind the attacks.  On September 2012, however, a fateful event occurred that brought significant change to the case and this fateful event is the core issue of the legal venture of this blog post.            

On September 10, 2012, the defendant sent seventeen pages of Arabic-language documents to the plaintiff in response to their discovery request.  However the plaintiff counsel requested that the defendant counsel resend better-scanned documents.  On the morning of September 12, 2012, one of the defendant attorney’s, John C. Eustice, put—into  what he believed was an empty envelope—defense counsel’s copies from which the September, 10 documents were made. However, the envelope he picked up was not empty. The envelope contained at the bottom a folded, unnumbered working copy—at least that is the claim of the defendant counsel—of a client communication to the defense counsel, created in April 2012.

The document was two-page memorandums prepared in April 2012, at the counsel’s request, by Major Ziad Abu Hamid—an official within the PA’s General Intelligence Services (GIS). The GIS Qalqilya memorandum contained at least seven crucial key facts that clearly establish the PA’s direct involvement in terrorist bombing.  The “million dollar” evidence that had been sought by the plaintiff had been found.  Both the plaintiff in our story, and other parties who had been searching for evidence to prove the Palestinian Authorities direct involvement in terror activities, were overjoyed.

Well, before you get excited, here is when our real story begins. The defendant asked for his documents back claiming they are privilege material under attorney-client confidentiality.  In the reasoning of his claim the defendant stated that: (1) the material was made directly for the counsel, (2) it was a work-product since it had hand-written blue ink notes on it.

The federal district court of the District of Colombia (under Judge Richard Leon) ruled on January 1, 2 2012, a minute order stating: (1) the document shall be destroyed or returned back to the PA, (2) the plaintiff will issue a list of all parties that received copy of the document, and (3) the plaintiff will perform proof within five days of the execution of this order.

A case such as this, the fate of which may well rest on civil procedure alone, raises serious questions, both legal and ethical:

(1) should we let important cases to be decided based on technical elements?

(2) is it technical, or it is an issue of utmost importance to our American legal system?

(3) does certain public policy should trump confidentiality?

In essence, this case asks us, what is more important?  To do justice?  To expose the facts?  To punish the guilty?  Or to keep our rules?  Do we want everyone to see the “naked king”?  If yes, at what cost?

Here, in this one case, lie all the serious issues that we addressed in our professionalism and the law class.  Issues like civil procedure, attorney-client privilege and the place for ethics within and outside of the law.  It is generally felt that attorney-client confidentiality trumps all the other conflicting issues. However, this case stresses additional daily dilemmas that attorneys may face throughout the job.  In this case lays the conflict between two types of retribution: empirical retribution—wrong because society said so—in our case to break attorney-client confidentiality, and deontological retribution—pure wrong—in our case a terror attack and the murder of three innocent kids. The defendant attorney might be torn between his duty to his client and his moral conscience. This is an issue we all, as future lawyers, will have to address at some point or another.

But back to our story, the defendant filed a motion to get the documents back. Court gave a minute order. That, being the final decision in middle of a case, leaves our plaintiff without a possibility for remedy. Civil procedure comes to the rescue again. This is an exemplary case for procedural litigation. The plaintiff claims that the document is not covered under attorney-client confidentiality for the following reasons:

(1) the plaintiff claims that the Qalqilya document was written for the PA GIS and not for the lawyer,

(2) the defendant failed to protect the document, and, therefore, waived its confidentiality,

(3) the defendant failed to produce or list the document in the privilege log as required by law, and therefore, waived its confidentiality,

(4) the defendant kept changing its version as far as the origin of the document—the basis for the privilege:

(i) who wrote the document,

(II) when the document was written, and

(III) to whom the document was written.

(5) the GIS memorandum is a pure factual account of the bomber and the bombing, including events leading up to and following the bombing.

Since the judge gave a minute order we ask ourselves, does the plaintiff has a possible way for remedy, or these evidence will be lost forever? The American legal system leaves the plaintiff with possible remedy. He may file two types of motions:

(1) motion for stay – an order to suspend all or part of a judicial proceeding,

(2) motion for mandamus – a writ issue by court to compel performance of particular act by a lower court.

The 6^th Circuit Court of Appeals has utilized a balancing test of five factors for Mandamus review:

(1) the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired,

(2) the petitioner will be damaged or prejudiced in a way not correctable on appeal,

(3) the district court’s order is clearly erroneous as a matter of law,

(4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rule,

(5) the direct court’s order raises new and important problems, or issues of law of first impression.

These factors need not all be met, and some factors will often balance in opposition to each other.

Our plaintiff claims that all of these factors exist in this case and the evidence in question is therefore liable for mandamus motion.

This case demonstrates the complexity of the remarkably balanced American legal system, which provides a last resort when we fear that the court abused its discretion.  It will be interesting to follow this case and see what would be the appellate decision. Regardless of what our wishes to be in this case, it simply nice to see that the system works. 

            The plaintiff in this case raised other legal issues and issues of public policy:

(1) the plaintiff argues that the defendant’s thorough material misrepresentation of fact intended corruptly to ensure the destruction of this evidence—a crime under 18 U.S.C §1512(c),

(2) the bombing was the subject of an FBI investigation which is still ongoing. The Qalqilya memorandum is evidence of a crime and key for any federal investigation of the Karnei Shomron bombing, and

(3) the plaintiff believes that a copy must be provided to the Department of Justice, the appropriate congressional committees, and should be publically disclosed. 

Thinking through the issues of a case like this—one that affects me on a very personal level—forces me to reexamine if what I have been taught to protects may, in some circumstances, make me do a greater wrong. Even though I am too early at my studies to answer that question, I believe the answer is no.  However, as long as this question never stops rolling in my head, and as long as I constantly seek to understand the complex and sometimes conflicted interaction between what initially seems to be the just path versus what the law appears to require, I will be a good servant of justice and a good servant of my community.

To conclude, I find that this case presents many of the issues we have often debated in our first semester, while also showcasing the complexity and strength of the American legal system. On the one hand it may seem unfortunate when a very serious case will be decided on procedural issue. To a person outside the legal system that might look simply wrong.  However, it is very important that while seeking justice we will not trump others rights. When serious matters are at stake, it is the hardest and most challenging time to make sure we do not violate rights.  We cannot, under the guise of protecting one’s rights, wave the rights of others.

Yet what we also see in this case is a good example of the system working both ways.  While at first glance, procedural issue appears to be halting the full investigation—the judge has initially ruled that the evidence in question must be returned to the defendant—the plaintiff does have recourse to fight this ruling, and uses it.  This is the strength of the law.  It will be interesting to follow the case and see what the appellate court will rule.  However, regardless of the ruling, the fact that both parties in the case have their possible remedy shows the unique checks and balances of the American legal system.   

Brandon Mayberry

Feb. Post

 For my winter break observation, I shadowed a local attorney from Marion. He is a recent SIU graduate who is practicing law at his brothers law firm.

            The day I shadowed was a day that The attorney had a hearing for a statutory summary suspension. To start the day, I went to the office and watched as The attorney prepared for the trial by finishing up his notes and watching a dashboard camera video from a police car that videoed the field sobriety test that was being challenged. The attorney was nice enough to allow me to also watch and read through the book of laws and help try to find possible defenses. It was a great experience being able to take part in the preparation for the trial.

            After some work, the client came in and The attorney explained what was going to happen and then we went to the courthouse. He went through the video with the client and asked some final questions about the instance in an attempt to make sure all the information was complete before the hearing. We then left the office and went to the parking lot where the field sobriety test was given. We went here to see if the parking lot was level and smooth and if there were any gravel or other things on the ground that could have created a difficulty in performing the test. After we looked at the parking lot, we then left to head to the courthouse.

When we arrived at the courthouse I was nervous because I haven’t been in many courthouses let alone court rooms, and I did not know what I needed to do or where to go. Luckily The attorney was again very nice and told me to sit in the back with the client while we waited for the client’s turn to be heard. I was able to see how the other attorneys interacted with one another, as well as the bailiffs and court stenographer. Everyone was really nice and considerate of each other. When the judge entered, everyone rose and then sat back down. He then did his paperwork to begin the session, and started to call cases. He went through the list in an attempt to make sure the people who just needed quick signatures and other things that could be done quickly were done first in an attempt to keep from delaying their days any longer than need be. After going through everyone who needed quick things done, he started with the hearings that would be a bit more time consuming, which included ours.

While waiting for our clients turn, we watched a few other hearings, one being a plea deal for a repeat offender for traffic violations. I was very surprised at this plea because he was taking a plea deal for numerous years in prison due to all of his violations. It made me realize that even something like traffic tickets can land you in jail if you don’t take care of it.

            After the other hearings, it was our turn, and I watched as The attorney called the police officer that conducted the field sobriety to the stand. He then questioned him on his training and his probationary standing with the department at the time the test was conducted. I was able to see how The attorney was able to bring a question to the judge’s mind about the training and knowledge of the officer. He showed how the officer failed to follow many of the guidelines required when conducting the test. After questioning the police officer, the judge said he would review it and that we would hear something in a few days. We then left and went back to the office and that was the end of the day.

            What I found most interesting about the entire ordeal was sitting with the client and talking to him. I realized that he had put so much faith in The attorney to help him. His job requires him to drive daily, and the charge he brought on caused him to lose his drivers license. He was relying on The attorney to do his best to try and get his license back. It made me realize that attorneys are the only people that someone can turn to sometimes and how important it is to do the best job possible to serve them. If we fail to do out job to the best of our ability, innocent people can suffer from the consequences of our lack of attention.

Arbitrary and Capricious

Joshua Nygren

The Indiana Appeals Court upheld last month the state regulators decision regarding Duke Energy Company attempts to pass on costs incurred during a January 2009 winter storm to its consumers. The Indiana Regulatory Commision ruled in 2010 that Duke could pass on approximately $11 million in costs from that winter storm.  However, in 2011 the Indiana Regulatory Commision reversed its own decision.  John Laramore an attorneys for Duke attempted to convince the court the panels reversal was “arbitrary and a capricious action.”  He went on to say that how the panel did not explain how it reached two different conclusions from the same evidence and their decision was “puzzling” and should be reversed. However, Judge Paul Mathias noted differences; one being the staff had changed since the first order was issued.  David Steiner an attorney for the commission stated that the panel had considered new evidence and testimony from a Duke executive.  Mr. Steiner stated to the court, “This was a completely new look at the evidence, fully supported by the law and facts.”   

The court ruled that the Indiana Utility Regulatory Commission did not have to explain a reasoning regarding the October 2011 decision, reversing the regulatory panel’s initial approval of Duke Energy asking to pass costs onto customers. The three judge court of appeals issued this statement during their ruling, “In both instances, the evidence is essentially the same, and the ‘judge’ is not required to give an explanation as to why he changed his mind between one decision and another.”  During the courts look at the commissions reversal it noted the first case considered the impact of both a windstorm in September 2008 and the results of the ice storm in January 2009, but the second look only dealt with the ice storm.  The court did state that it would be better practice for the commission to articulate the difference in decisions; however, their decision did justify reversal.

Speculations are being drawn to as why the board reversed itself.  After an ethics investigation regarding Duke Energy hiring of a former member of the Indiana Regulatory Boards Chief Counsel Scott Storms.  Mr. Storms had been the boards top administrative law judge and it was found after further investigations that he had discussed employment with Duke while he was a judge over its hearings regarding the company’s request before the board.  Former Governor Mitch Daniels removed the boards then Chairman David Hardy after he admitted during the investigation that he knew about ethical conflict, however, refused to do anything about it or remove Mr. Storms from over the hearing. The completed investigation found no evidence Mr. Storms “exerted undue influence” on the panel’s decision. However, the committee who investigated did recommend the case should be reopened and reviewed again.  When the ethics violation came out, the Indiana Office of Utility Consumer Counselor who is an advocate for utility consumers had argued Dukes request was excessive and failed to show facts, and was unsupported by evidence to show an emergency needed to raise the costs.

Indiana Business Journal, December 2012

 

So, you've got jokes.

Maria Rodriguez

One of my earliest recollections from orientation, last Fall, is that of a professor expressing her particular distaste for lawyer jokes. Previously, I had not given the matter much thought. However, I have since been presented with my own share of unflattering comments regarding the legal profession.

While some lawyer jokes might be made in good fun without any malice or actual disregard for the profession, they can still be offensive. I believe that such jokes are largely a result of people’s Ignorance about the many, terrific lawyers that there are. People with such jokes might have had a dissatisfying experience with an attorney or with the law in general, or they might have simply bought-in to the negative stereotypes that abound. I believe that such individuals fail to appreciate the complexity and importance of what we do, or the countless hours and tuition dollars spent preparing ourselves to be competent client advocates. Such jokes are in disregard for the selfless, altruistic motives that so many of us have for going into this profession. The fact is that many of us have chosen this field out of a genuine desire help others, and to improve our communities and the world at large as best as we can.

I am sure that we have all had to overcome stereotypes before, whether about our gender, ethnicity, race, height, hometown, etc. In college, I was once asked to write a paper about whether the misogynistic lyrics of gangster rap should be permissible. My response was that it is an expressive art form, protected by free speech, which does not bother me as long as I am comfortable with who I am, and satisfied that such negative portrayal of women does not apply to me. Furthermore, I would wager that almost no profession is safe from unflattering jokes or stereotypes; I encountered a great deal of them in two previous careers. But every such instance that we are faced with a lawyer joke could be viewed as an opportunity to educate people about the good work that we do, and to teach them to treat us in a more dignified manner.

Unfortunately, lawyer jokes are just a part of life that we might as well get used to, because they are probably not going away any time soon. It is practical to have somewhat of a thick skin, to be able to shrug them off. It is impossible to be able to please everyone always, especially since so much of law is about balancing various parties’ and societal interests. In light of that, we should continue to put our best foot forward, and to use our greatest professional judgment always. We all experience ups and downs, and there might be times in our lives when we find that integrity is all that we truly have to count on. It will make or break us in this profession, because credibility with clients, colleagues and judges is so essential to the nature of our work. Although we should strive to always do what is correct and proper simply for the sake of doing so, lawyer jokes are all the more reason why attorneys should be driven to uphold model rules and ethical values, as we are the newest ambassadors of the legal field.

Here we go again...

Megan Hellesen

                Now that we have all finished our first semester of law school and are back to the daily grind of classes, I find myself missing my “finals study mode” determination.  It was an unbelievably stressful two weeks but I feel like I did an extraordinary amount of work and was able to make very speedy progress.  I was zipping through CALI exercises.  I was speed-reading through chapters.  I was wearing out all of my highlighters.  I was forcing myself into sleep deprivation and, in a weird way, I kind of loved it.  I was tremendously productive.  There is no way that I can sustain a healthy life like that.  However, now that my unfortunate procrastination prone urges are making arguments in my head again, I feel the need to find a fire.

                I made all of these plans, as I’m sure my peers did also, for how I was going to do things differently this semester.  I am determined not to have to put the amount of pressure on myself as I did for the fall semester finals.  Having never experienced law school, I didn’t know how to prepare last semester.  I didn’t start making outlines until at least less than a month before finals.  By that point I was trying to outline things I couldn’t remember.  I felt the need to go back and re-read a lot of text.  So my main plan to make this semester less stressful is to outline every chapter as we finish it in class.  This is where my fire is needed.

                Being forced to put that much work into a relatively short amount of time is making spring semester finals seem awfully far away to me.  We are getting to that point in classes where we are finishing up that first chapter topic and moving onto the next one.  Number of outlines I have started?  0.  It is only the second week of classes after all.  Or at least that is what the procrastination tells me.  The logic tells me that I’m going to be thanking my past self when future Megan is starting to study for finals. 

                I’m beginning to see that the fire that will get my plans in action is an interesting mix of ambition, humility, and patience.  I think a law student has to be ambitious enough to be in constant competition with themselves.  Yes, I’m choosing to view this race as a solo competition.  There was so much talk about competing against your classmates for grades before last semester and to a certain extent that is absolutely true.  But that doesn’t have to be a mindset.  You know when you have done good work or not.  You know when you are prepared or not.  You know when you should be doing something more.  Ambition to continue bettering your performances in class, in writings, and in studying will continue to make you a better student.  I think humility is also needed.  Everybody has the possibility for a bad day in class.  It’s happened to me.  I was caught unprepared and it made me feel awful.  Not that I got caught, but that I had slacked to the point of where it catches up to you.  I think a little bit of the fear that that might happen again is also a great motivator to stay on pace.  Patience is a difficult, but necessary, thing to practice when studying law.  If I learned any general rule last semester it would be that you have to take your time.  Take your time reading through the materials and learning the topic.  With patience the information is able to seep into your brain at just the right speed for maximum retention.  If I continue to remember those three virtues, then hopefully I won’t have to pull my hair out come final time.  Here’s hoping.

Chad Baker

Courtroom observation.

            When I entered the Edgar county courthouse in Paris, I was almost 20 min early and walked through the front door with the first few employees. Anxiety rushed from shoulders to knees and as I was directed towards the court room that I would spend the next 4 hours observing criminal court cases. I met fellow law student Alex Barrett outside the courtroom doors, which relieved some of the nervous tension that had been flowing. Alex, whose mother works at the courthouse, showed me around and I quickly became comfortable with my surrounding. We found our seats in the front row, which reminded me of church pews. Alex and I were the first to enter the courtroom, which surprised me since court was only 5 minutes away from being called to session. The assistant states attorney came into the courtroom with a pushcart full of files. I quickly asked Alex if he thought that the court could possibly get through that many files in one session, but after the first hour it was no question. People, mostly kids, slowly trickled into the courtroom waiting patiently for the Judge to call his or her name so they can stand across from the Judge and at a separate podium beside the states attorney. I was surprised on how many of the cases were just hearings that took less than 2 minutes to assess the progress of fine payments. It was maybe an hour into the proceedings before the public defender came into the courtroom to represent his clients and clients he has never met before.

            The judge started to call for cases that the public defender dealt with within ten minutes of the public defender entering the courtroom. I was surprised on how many people started to fill the courtroom. The public defender had a large stack of cases pilled within folders. Each folder had what I assumed to be case history and a yellow pad of paper. Most people had already been assigned to the public defender, but there were plenty of people who after approaching the bench would be asked if they wanted the state to supply a defense attorney. The defense attorney was readily available to start work immediately whenever the judge decided for the defense attorney to represent the individual. He would bring out a new pad of paper and basically start a new file for each person.

            The most surprising thing that I found was how quickly deals were made. The judge would describe the case and the public defender would basically lean over and whisper something into the assistant states attorney’s ear and then he would nod and the deal would be done. The judge would read the deal as understood by the assistant states attorney and they would both nod and verbally agree, then the accused person would sign a guilty statement and agree to not have a trial by judge or jury and it would be done. Previously before this experience I had always imagined both attorneys sitting around a table in a room while they argued and hashed out the details, and now I see that it takes almost a few seconds and a head nod.

            Another shocking thing was how well the attorneys got along after the court session was over. They sat there and talked and exchanged pleasantries. Then it occurred to me that they see each other several times a week, so they would have to know each other fairly well. I’m sure it makes life in the courtroom easier when you know the each other pretty well.

            As the Judge worked through all the cases I realized that he started calling offenses by their number instead of names, which made it much less exciting. I realized how many of the people who were being accused were all so young. Most of them were younger than me, but just a few were older. Some were even accompanied by their mothers.

            After we heard all the cases, the Judged thanked us for being there and asked us to come back any time. Alex and I then rushed up stairs for a much larger case. In the upstairs courtroom it was much more formal of a hearing with actual tables for the two lawyers instead of just a podium. The judge sat way above everyone instead of eye level, which I thought gave the judge more of a scary look. We only caught the tail end of the case and it was very brief. The defendant was granted a continuance and that was the end of the courtroom experience on a larger scale. I hope we can get back in there soon.

            I feel as though I had a good experience. I learned a lot about the procedure and how the lawyers handled themselves in the courtroom. But I also think that I would have been more interested in the pre courtroom experience. Seeing how the lawyers prepared for each case and the time and effort they had to put in for each person who only sat in front of the judge for less than fifteen minutes.

My Law Degree Could Help Me Become A Successful Businesswoman

By: Airika Tyler

I have always been fascinated by the intersection of law and business. At first blush, it may seem counterintuitive to suggest that the acquisition of a law degree could make someone a better businessman or businesswoman—after all, legal skills are supposed to center around statutes, regulations, court judgments, and the like, whereas business skills focus on shifting markets, consumer demand, and the ability to turn a quick profit. Nevertheless, I think that the pursuit of a law degree could make me a better businesswoman if I choose to pursue that path in the future.

Owning oil rights is something that has always been a far-fetched dream of mine. While the ultimate dream is to someday own a series of Taco Bell franchises, I would happily enjoy receiving the business training necessary to bid on oil rights sometime in the future. My basis for this is simple: oil is very interesting, tons of people invest in it, and the oil industry is never going to go away until we run out of resources and by that time there will be an alternative that the oil industry will own as well (that’s just my opinion). Anyway, having a legal background will make it easier for me to pursue my dreams in the oil field.

You may remember that two months ago I did my blog post on the hardships and perseverance of Charlie Munger, the right-hand man of Warren Buffett at Berkshire Hathaway. Well, when Charlie was in his 30's, he met on the golf course with an energy entrepreneur that was seeking to purchase the rights to some oil and natural gas properties that the British firm Royal Dutch Shell was seeking to discard. Well, because Charlie Munger was a lawyer, he knew what was the best way to structure the oil bidding deal so that it would be the most tax efficient while always limiting the downside if the oil purchases failed. So what Munger did was this: he structured the oil assets in an ABC Trust so that he could use bypass tax exemption to take advantage of the look-through profit potential that commodity investing can offer. Here is the best part of the story: Munger only invested $5,000 into the project, and 45 years later, that project generates $2,000-$3,000 in MONTHLY wealth for the Munger family. While I do not expect that a law degree will allow me to reap business successes of that magnitude, I do believe I can learn from Munger in using a law education to further potential business interests after graduation.

A law degree is more versatile than one may initially assume. The best part of my 1L experience so far has been learning and modifying my critical thinking skills so that I can attack a fresh problem from many different angles, and through robust analysis and research, reach a proper conclusion. While that skill set has generally been applied to Torts, Contracts, Property, etc. so far, I do believe that the legal education that I am receiving at SIU Carbondale will provide me with the skill set necessary to be a successful businesswoman in the future if I choose to pursue that path. 

Bruce Springsteen Was Almost A Lawyer

By: Timothy Michael David McAleenan, Jr.

Here’s a fun fact that many of you may not know: Bruce Springsteen, the famous rocker who has brought us classic hits such as Born To Run, Born in the USA, Hungry Heart, Dancing in the Dark, Backstreets, Jungleland, The River, Thunder Road, and three hundred others that are equally worth naming, was actually pressured by his dad to be a lawyer growing up. “The Boss” has always been my idol, and when I was perusing the latest biography about him (titled, concisely enough, “Bruce”), I came across the story about the pressures that Springsteen faced growing up as his father attempted to discourage him from being a rocker.

When Bruce Springsteen was sixteen years old, Mr. Boss (as in, Springsteen’s dad) asked Bruce who he thought were the most respected members of the Freehold community in which he grew up. Bruce named the head priest of his parish, a local newspaper writer, and a prominent lawyer. At that point, Springsteen’s dad asked Bruce if he wanted to be a priest. Bruce, perhaps thinking thoughts about his girlfriend Denise at the time, cited the priestly requirement of celibacy as the reason why that would never work. Then, Springsteen’s dad asked Bruce if he wanted to become a newspaper writer. Although even then as a young Bruce Springsteen he loved to write, he cited the low pay of workers in the newspaper industry as the reason why he didn’t want to pursue that occupation. And then, lastly, Bruce’s dad asked him if he wanted to a lawyer. Bruce said, “Yeah, I could do that.” When his father pressed him to explain why, The Boss replied, “Because all of them are smart, and the good ones help people.”

Of course, as we know from history, Bruce Springsteen decided to bless us with dozens of albums of the best music the 20^th century had ever seen (in fact, Rolling Stone magazine put Springsteen in exclusive company with Van Morrison and Bob Dylan with the description that they were the only songwriters that “wrote lyrics as if their life depended on it). But it is an interesting counterfactual: What if Bruce Springsteen had become a lawyer? He demonstrated all the typical prerequisites that would make someone an awesome public interest attorney. First of all, Bruce Springsteen could flat out write. Seriously, listen to the lyrics from the Born To Run album or The River album and tell me that The Boss is not a master craftsman. Just imagine if he had channeled that energy towards writing pleadings and trial briefs! Think about the passion he brings to his trade by cranking out 3-4 hour shows. Is that really the kind of person you’d want to compete against in the courtroom?

Springsteen has said that he’s read dozens of John Grisham novels and that he sometimes wonders what his life would have been like had he followed the legal path (although, considering that he has a net worth of $500 million and has millions of fans spanning worldwide, I think it’s fair to say that he did all right for himself). Personally, I think it’s interesting to know that had Springsteen’s mom not bought a young Boss that Hammond guitar when he was a teenager, the world may have had one more lawyer in its ranks: a Mr. Bruce Springsteen, Esquire. 

Changing Application and Open Job Numbers

The Drop In Law School Applications

by

Shane Stewart

While listening to the daily podcast version of The New York Times my curiosity was assaulted when the words “law” and “school” found their way into the same sentence. The article from the morning of January 31^st, 2012, was about the declining nature of law school applications, and some of the prevailing theories on why law schools are receiving lower numbers of applicants than in the recent past. Much of the dialog that I have heard from SIU faculty and staff was repeated in the article.

The general consensus across the country seems to be that law schools are feeling the impact of the economic recession much in the same way that undergraduate institutions are. The high cost of attendance, in conjunction with the lessening availability of jobs for young lawyers is hacking away at the application numbers for law schools all over the country. SIU's cost-shifting measures have made our small school and exception to the poor showings of applicants that have defined the last few application years. The route cause of the lack of jobs for law school graduates was mentioned in the Times article as well. The author suggested that the improvements to the legal research process in the last decade have made larger staffs in law firms mostly unnecessary. The digital age is finally hitting the legal world and as a result lots of tiring, time consuming research is now significantly less time consuming and tiring. In addition, the proliferation of the pre-made legal form has decreased the need for lawyers in the routine legal actions of ever day life. The lack of job availability, the economic recession, and the especially high cost of attending (most) law schools is making what used to be an iconic method for climbing the social and economic ladders—becoming an attorney—more of a gamble than it's been in the recent past. According to American Bar Association in 2011 only around 55% of law school graduates found jobs that required passage of the bar exam.

The Times article suggested that within the next few years at least 10 law schools will be closing altogether, and most will see cut-backs and staff downsizing. It's a scary process for law school professors and administration, and presents a rather scary possibility for students as well. If the law school we graduate from ceases to exist, the job market is likely to only turn more hostile towards us. It'll be difficult to compete if SIU law isn't a name that carries any weight in the legal field. Thankfully, according to SIU staff and administration, our school hasn't felt the drop in applicants as profoundly as other schools have, probably because of the competitive tuition and public interest opportunities.

On one hand, I'm rather happy that the competition for my dream jobs may be thinning, but it's difficult to enjoy the silver lining on this proverbial rain cloud. Broadly speaking, SIU's standards and opportunities have given me the chance to attend law school and improve on myself when the national climate might not have allowed it anywhere else. I'm burdened with the same debts as many of my peers, and unfortunately will be entering into a less-than-ideal job market. I can only hope that the decrease in applicants somehow roughly equates to the decrease in jobs so that I can have just as fair a shot at my dreams as students in the past had. A fair shot is all most of us really want.

Brett Cronson

During my time spent in the courthouse over winter break, I got to see something glorious.  As I was sitting through a court call of misdemeanors consisting mostly of driving under the influence charges, an older gentleman came into the courtroom dressed fairly casually, sat down next to me, and took out a legal pad and began writing down notes as the proceedings progressed.  I wondered to myself if he was also doing some sort of observation assignment, and was just about to ask him if that was the case when suddenly his name was called.  The man stood up and loudly declared that he would be representing himself in this matter, and requested to approach the bench (after already being told to do so).  At this point, while I don't generally make a habit of forming snap judgments on someone, I got the feeling that I was about to see something out of the ordinary take place.  The man approached the bench and began loudly making his case to the judge.  "Your honor, it has been established that when I made a right turn, it was established that I was well within any legal rights to do so because I was within the clear, ah, clear guidelines for doing so, legally, and it has been established through clear evidence that the jury could not have found the way that they did and I should be cleared of these charges."  It was after that mess of a pretend legalese sentence that I realized what we had here was a man who wanted to play at being a lawyer without all that troublesome legal education.  As the man continued pleading his case, the fact pattern and procedural posture of the case revealed themselves to me, and what I discovered was that this man was arguing an already decided jury verdict over an improper right turn that took place in 2008!  This case has been in the system for 4 years now, at least, and all because this is how this man apparently kills time.  The judge had to repeatedly and patiently explain to the man that “Sir, nothing has been established except that a panel of jurors has found against you based on the evidence presented.  You cannot now attempt to introduce new evidence; I am simply asking you if you have any questions regarding the decision.”  God bless the judge for asking, because every time he offered the man a chance to speak, the man would keep explaining to the judge why a jury simply couldn’t have found the way they did, and here’s all the reasons why.  As I looked around the courtroom while the man did his best lawyer impression, I could see that just about every attorney in the room was shooting an “are you seeing this?” look to a fellow attorney in earshot.  After what must have been 15 minutes of the judge exhibiting some of the best patience I’d ever personally seen, the man was finally out of ideas for how to proceed and seemed resigned to his fate – a modest fine.  The whole incident, while providing some great entertainment value, also reminded me of how important a legal education is.  Without one, you wind up dragging out improper right turn tickets through a jury trial and take up 5 years of the court’s time in what is essentially a punchline for anyone observing.

The Third Baseman from Hell

Tyler Opel

I consider myself a ‘sports guy’, much like any other 24-year-old male claims to be. I think I speak for all of us when I say “I am sick and tired of hearing the word ‘illegal substance’ on ESPN recently.” The last few weeks have been a non-stop steroid fiasco in the news. It started with Lance Armstrong admitting to cheating during his 7 Tour de France victories. It continued onto the recent allegations of Ray Lewis using a banned deer antler spray to recover from a torn tricep injury. There was also the unrelated Manti Te’o faux girlfriend story that left everyone dumbfounded, but I digress. Somewhere in the middle of this fiasco, a major story broke out of Miami, FL. This week, records were taken from a company called Biogenesis that linked some of the biggest stars in professional baseball with steroids and other banned substances.

Biogenesis was an alleged an ‘anti-aging clinic’ tucked into a two-story office building just a hard line drive's distance from the University of Miami Campus. Biogenesis used a fake business model to anonymously connect professional athletes and other customers with performance enhancing drugs (PEDs). The biggest star on the list was the much-maligned third baseman for the New York Yankees, Alex Rodriguez. This isn’t the first time that A-Rod has been linked to PEDs. In fact, he openly admitted to using them earlier in his career when he played for the Texas Rangers in 2001 to 2003. The New York Yankee front office is not so happy about the news, and there are about 114 million reasons why. Alex Rodriguez has 5 years and $114 million left on his current contract. That is an insane amount of money to be paying a 37 year-old with drastically declining numbers at the plate. Add all of that up and include a recent hip surgery that will keep him injured for most of the 2013 season, and you have a giant black hole of devastation at third base. The rift between A-Rod and New York is real and it is about to get very interesting.

So, if you are in the front office for the most storied (and richest) baseball franchise in history…what do you do? Well, You can lie back and take the hit to your wallet or you can try to get out of that albatross of a contract. The Yankees are trying to do the latter by exploring multiple avenues in an attempt to void the star third baseman's contract. This is where it gets interesting. There is no precedent that has been established to successfully void a contract due to PEDs.  The Yankees are looking at whether A-Rod breached the contract by taking medical treatment from an outside doctor without the team's authorization, and the possibility that he might have broken the law by purchasing controlled substances from a Miami "Anti-aging clinic".

  This case seems to be very weak. According to two baseball sources, even if it is proved that A-Rod received PEDs, the Yankees would not be able to impose a punishment greater than the mandatory 50-game suspension stipulated for a drug offender by baseball's collectively bargained Joint Drug Prevention and Treatment Program. Section 7, paragraph M of the agreement states, "All authority to discipline Players for violations of the Program shall repose with the Commissioner's Office. No Club may take any disciplinary or adverse action against a Player (including, but not limited to, a fine, suspension, or any adverse action pursuant to a Uniform Player's Contract) because of a Player's violation of the Program." So basically a team cannot use a steroid conviction against him to get out of a contract. The story is still developing here, so it will be interesting to see what comes next.

http://espn.go.com/new-york/mlb/story/_/id/8894904/new-york-yankees-attempting-voide-alex-rodriguez-contract-according-sources

Alternative Dispute Resolution

Martin Parsons

     The use of Alternative Dispute Resolution (ADR) has increased in popularity in recent years due to several factors. An increased case load in the court system has prompted parties interested in a more expedited resolution to their legal dilemma, to look for other ways to come to a mutually beneficial outcome. At one time, ADR was a cheaper alternative to traditional litigation, but as the use of ADR has increased so have the costs. Although, on average the cost of ADR is still less expensive than traditional litigation.

     In addition, parties who are interested in confidentiality may prefer to use ADR. The proceedings are easier than public litigation to keep confidential. The parties can include confidentiality agreements as part of their ADR proceedings. The ADR process is also much less complex than traditional litigation. With less complexity also comes swifter resolution. Allowing the parties to come to an agreement more rapidly than would be possible otherwise.

     Alternative Dispute Resolution (ADR) is typically broken down into four categories. They are negotiation, mediation, arbitration, and collaborative law. Negotiation is the form of ADR that we are all probably most familiar with. It is also the largest mode of dispute resolution. Even when disputes are proceeding through the traditional court system, negotiation is often used in order to come to a resolution before having to take a case to trial. If the parties cannot head off litigation it can still be used to come to an agreement on a lesser offense or punishment. Almost all cases involve some form of negotiation.

     Mediation is the use of a third party to assist in facilitating the process, but does not impose a resolution on the parties. This is often conducted in a neutral location, but could take place in either party's business location. A mediator is often used who has special training in negotiation or who has special knowledge of the matters be discussed. The mediator is an unbiased third party.

     Arbitration is a step up from mediation. It is more like a trial, with evidence presented and simplified discovery. It can be presented to a single individual, the "judge", or a panel. After each side presents their case, the "judge" deliberates and issues a decision. Each side agrees before the proceedings that they will bound by the decision of the arbitrator. The opinions are not a matter of public record.

     Collaborative law is often used in family law situations. Couples in divorce proceedings will work together with their attorneys in order to draft a settlement that best meets their needs, rather than relying on the uncertainty of the court.

     Alternative Dispute Resolution is used extensively in the Government and has been used in labor relations, construction, and securities regulation. Title 9 of the U.S. Code is the federal law that supports arbitration. In 1956, The Uniform Arbitration Act was enacted and adopted by 49 states. The act was revised in 2000, but this update was only adopted by twelve states. An arbitration award is enforceable under both state and Federal law.

Sources:

http://en.wikipedia.org/wiki/Alternative_dispute_resolution

http://www.law.cornell.edu/wex/alternative_dispute_resolution

http://www.hg.org/adr.html