lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

KUHT: In Search of (Legal) Answers for Veterans

KUHF: In Search of Answers for Veterans

The Houston Bar Association has stepped up its outreach to the veteran population. The effort includes several regular legal clinics including a weekly one at the DeBakey VA Medical Center. Capella Tucker reports.

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Hearsay Exceptions, Set to Music, with graphic Lego Animations (NSFLS)

Someone has entirely too much time on their hands.

Video: Push Ups or Ticket?

This is hilarious and probably not such a bad job of police work either.

Portraits in Hubris: You Can Lead a Lawyer to Ethics, Can You Make Them Drink?

Jim Chen at MoneyLaw and Scott Greenfield at Simple Justice each posted on the meaning of the separate but oddly serendipitous indictments of Illinois governor Rod Blagojevich, investment mogul Bernard Madoff and New York lawyer Marc Dreier. Each of the three had some brush with law school and would presumably have been admonished, at some point, of the unique power and responsibility placed on lawyers in our society. They seem to have missed the memo.

I took the obligatory course in Professional Responsibility last spring, an experience I can only describe as an exercise in competitive piety. I remember Greenfield once aptly describing the hypothetical ethics game we play in law school as screw the lawyer. I have posted here previously on what it takes to pass the MPRE and it doesn’t involve much of a moral compass.

In middle school, one of my social studies teachers, Kevin Sipe, devised an adaptation of the ethical coercion experiments of Milgram and Zimbardo. I forget exactly how it was implemented, but I’ve never forgotten the lesson – my own moral fortitude is never to be entirely trusted and must be continually tested. Ethics classes, by their very reason for being, are too often allowed to be celebrations of a cheaply-bought ethical infallibility that doesn’t exist. My instinct is that being overly convinced of our own morality is the surest way to lose it.

Consider the rapid descent of each of these men. Were they plucked out of obscurity by these scandals? Of course not, each was celebrated in his own right before being unmasked. A mountain of justifications paved the path they walked and each was reassured by their own sense of success and the reflection of it in those around them. The road to moral bankruptcy is lined with well-wishers. Standing on principle, as Jan Kemp’s story illustrates, is a very lonely act.

We are not learning how to behave ethically in law school, we are learning how to describe it. One takes a semester and the other takes a lifetime. We would do well not to confuse the two.

A Sentence You Don’t Want to Hear in Oral Argument, Unless You’re on the Other Side

UHLC has an appellate advocacy class taught by Randy Roach who advocates a “Court-Centered Approach” to appellate advocacy. Under this paradigm, the task of the advocate is not so much to hammer home your point, but to help the court. A court-centered advocate is still persuasive, but the difference is one of being a means by which the court reaches a decision rather than an obstacle. In oral argument this means being honest about the weaknesses in your case and candid when asked to concede a negative point in order to preserve your credibility and your ability to persuade.

A writing professor once told me that the best way to learn is to see someone do it well, and then to see others do it badly. Case in point:

JUSTICE SOUTER: …wouldn’t it have been mitigating evidence to learn that other people, at times relatively close to the events in question, without being coached by the defendant, had concluded that he was a drug user? Wouldn’t that have been mitigating evidence?

MS. SMITH: I don’t think that it would have been material to –

JUSTICE SOUTER: We are not asking about materiality at this point. We are asking about the mitigating character of the evidence. Would it have been favorable to the defendant? Would that have been its tendency?

MS. SMITH: I think it added no more than –than what was already before the jury.

JUSTICE SOUTER: That was not my question. Was it favorable evidence? Did it have a tendency to favor the defendant?

MS. SMITH: No, not under his theory, and the reason is –

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

Ouch.

From Cone v. Bell, No. 07-1114, Transcript (.pdf) at 37-38.

For more on a court-centered approach, see Randy Roach, Texas Supreme Court Oral Argument: A Court-Centered Approach (.pdf). If you’re a student at UHLC, I highly recommend the course.

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