Barrister by day, Bacardi by night

Crime doesn't pay

I recently received my first criminal docket at the Court of Appeals.  The defendant appeals his conviction, which would put him in jail for a very long time.  Unfortunately, he's not likely to go anywhere.  Everyone gets a shot at the appellate level, but rarely does our court reverse the trial court's decision.  Maybe five percent of the cases get remanded.  But that's probably an arbitrary number that just popped into my head.  I have yet to see a reversible error come across my desk.

Criminal appeals tend to raise points of error based on ineffective counsel, legal insufficiency, factual insufficiency, or some procedural mistake (such as improper jury instructions).  I'm not familiar with the standard of review for ineffective counsel because I haven't had to look into.  However, when someone argues legal or factual insufficiency, the appellate court looks to see if there was any basis for the jury to reach its conclusion.  If the someone says violet and the answer was purple ... that's close enough. 

No one ever knows what really happened, and if he did, he would be witness.  Rather, the jury is afforded a degree of leniency to infer the truth.  Who's to say an appellate judge and a cadre of staff attorneys are better suited to weigh the credibility of testimonies and evidence than a panel of tried-and-true jurors.  After all, there's only so much the appellate court can do.  Otherwise, why not just ask for a new trial.  Oh wait, they probably didn't ask for one.

Victory is Mine

Eight months ago, I swore that before graduation I would ensure that Shannon Kruger would succumb to the taste of alcohol.  Originally, I crafted a devious plan to form an 8-member elite team with the singular purpose of spiking Shannon's water bottle.  The endeavor was code named Jack and SEVEN.  The trick was separating Shannon from her water bottle, which she guarded like a hawk.  It would've been easier to walk into the New York Federal Reserve and have security guards help you load truckloads of gold.  Plus, Shannon had counter-intelligence operatives that would have foiled most amateurs.  Who would've known that all I needed to do was call Oprah and ask her to recommend drinking a glass a wine everyday.

Alright, so I really didn't have a hand in any of this.  But a couple of the law students headed out to Fox & Hound in downtown Fort Worth to watch the NBA finals.  Many of my classmates are taking summer classes in the evenings and a few are working as legal assistants at small general practice firms.  They draft more motions than they write memorandums.  They don't do much research but they are learning a lot about procedure.

Free Jacko

The verdict is out.  It's not Michael Jackson.

Having just finished my first year and being a future lawyer and all ... people have come to rely on my expert legal opinions.  Not really, but people do ask me was I surprised?  Hell no.  It wasn't as if the prosecution presented any resemblance of a cohesive case.  The testimonies contradicted each other.  The witnesses barely seemed credible. 

Is there something wrong with Jacko?  Maybe, but it certainly wasn't proved today.  As the Jon Stewart Daily Show reports, "if you want to commit a crime, do it in California, where the prosecution is incompetent and the juries aren't willing to convict."

Grades are trickling in

This semester has once again proved that you can slack off and still make it into the top 15 percentile.  Granted, I slaved my ass off the last three weeks before finals but I didn't allow school to consume my life entirely.  I didn't go to all my classes this semester.  I didn't read my entire casebook cover-to-cover.  I didn't brief for every single case.  However, I did pull a hare out of my ass everytime I was called on.  So I can still manage to be the same cocky S.O.B. with half the academic effort.

I'm sitting at nearly a solid B+ (pending the final grade from legal writing and research ... Father, Son, & Holy Ghost).  It does frighten me that Short gave out five A+'s this spring semester.  But since there's no spreadsheet available this semester ... we'll have to wait until Judgment Day.

Update:  I finished my semester with 3.297 cumulative GPA.

Pro se? Say no.

It's widely known that a lawyer who represents himself has a fool for a client.  Nothing is more truthful when it comes to a pro se litigant, who is often an indigent plaintiff that decides to represent himself.  I'll concede that it's quite unfortunate that legal representation is often beyond the grasp of the economically-disenfranchised masses.  When it comes to civil suits, indigent plaintiffs rely on the limited resources available at Legal Aid, law school clinics, pro bono attorneys.

Nonetheless, there's a reason why people go to law school.  We learn how lawyers "really" communicate in a courtroom.  The common laity believes that attorneys and judges speak in the mystic tongue of legalese.  What they don't know is that such colorful colloquialisms like "hitherto", "aforementioned", or "said property" has long ceased to exist in everyday lawyer talk.  If anything, the old ways (e.g. "Now comes Plaintiff A") permeate in today's pleadings for no better reason than someone not changing the word-processing templates.

Of course, it's one beast to litigate your own case at the trial level, but it's entirely another Cerberus-Britney Spears hybrid monster when you seek an appeal.  A plea to the judge's heart simply doesn't cut it.  A case on appeal faces many procedural obstacles.  Not only must an appellant have preserved an error properly (e.g. making an objection), but he must raise the issue on appeal in a manner that makes his case reversible.  As Justice Morris told me, "first the trial court must have made an error, then the error has to be so important that we must reverse the case back to the trial court.

So what makes pro se appellants so irritating?  They have no idea what they're talking about.  I spent three days wading through a sea of crap.  The court reporter's record was bound in 5 volumes totaling over 2000 pages.  Then there were the 10 volumes of court transcripts and the parties' briefs and responses at the appellate level.  Fortunately, one side had good attorneys to tell the court what was going on.  Because trust me, there are enough bad attorneys that makes you wonder if an appellant was better off pro se.  Not a day went by during those three grueling 9-5 office hours that I wasn't pounding my head, cursing at the S.O.B. who was wasting my time.  Yes, I know you feel wrong.  No, you don't need to write about it again.  Yes, you've mentioned this for the umpteenth time.  No, the facts didn't change between page 568 and 876.  No, you still haven't cited any legal authority supporting your case.  No, that rule against goes against the basis of your case.  So at the end of the day, my sanity is reduced to a pile of rumble.  If only he would tell me 1) where to court records support his claims, and 2) what cases supports his arguement, my life would be a lot easier.

My friend called me a month after finals.  He tells me, "you realize now that we're done with our first year, it's possible that somone will give us real lawyering assignments."

Yeah, I've been doing that for a while.

No one expects Soverign Immunity

No matter where I run, there seems to be no escape from the Texas Torts Claim Act ("Act").  Tex. Civ. R. & P. § 101.001 (Vernon 2005).  Every case that comes across my desk somehow relates to soverign immunity.  And the reason is simple, the Texas legislature only waives government immunity from lawsuits in a very limited number of cases.  A company that wishes to sue a government entity (i.e. state university, agency, or local municipality) must first petition Austin for permission to sue.  Alternatively, for tort actions, the plaintiff's claim must fall within the exceptions provided by the Act.  Otherwise, the government can't be sued and courts won't have jurisdiction over the case.

Often what we see in the Court of Appeals are Plea to the Jursidiction challenges, where someone from the trial court level disagrees about whether the government can be sued.  Who'd actually expect that my first year brief would actually become so practical?  My friend Eric and I have decided that once we finish law school, we should open a specialized practice that sues the government.

Currently, I'm working on a case with two other summer clerks that deals with none other than ... that's right ... sovereign immunity.  It's a well established area of law except when there's a novel claim that attempts to slip within the boundaries of the Act.  We've already heard the oral arguments, but the attorneys in this case provided little assistance.  Unfortuantely, their briefs are no better in helping us resolve this case.  The justices have made a tenative decision but the court lacks the case law to support their decision.  So my team of summer clerks have been asked to scour the vast ocean of Texas law to find cases analagous to the case at hand.  There are none on point.

What makes this assignment unique is that it's almost like a case of first impression.  There's only one other case in the United States that comes close to resembling this specific fact pattern.  However, that case resolved itself on worker's compensation question rather than the question we've been presented.  In essence, we've been asked to recommend what the new case law should be.