Week Thirteen, Part 1 - Torts: Naked Before The World

With the exam in Legal Writing fast approaching, I’ve cut back on my preparation in the substantive classes. There’s not enough time to read and brief every case. Apparently, I’m not the only one.

In Torts, we’re stuck on the third element of negligence: causation. Our issue for today is “intervening cause.” I write in my notes: “an independent act which contributes/causes P’s injury.”

Professor Charles Rice calls on student Tom Longo to discuss Kelly v. Gwinnell, a 1984 case from the New Jersey Supreme Court.

Longo doesn’t bother to stand up. Instead he calls out from the back, “Sorry, sir. I didn’t get to it.”

Yikes! It’s the first time all year a prof has caught a 1L coming to class "naked," that is, with no prep.

Since Rice doesn't use a seating chart, he looks about for the source of the disembodied voice. No luck. “Mr. Longo, show yourself!”

No one ever jumps up in Torts, but Longo sets a new record for sluggishness. The chair slides out and his legs straighten. Then he tilts his torso upward like a senior citizen with arthritis.

We all turn to look. Since Longo’s in the back center of the lecture hall, the people in front and middle have to twist in their seats. Those of us on the wings crane our necks.

Longo has on jeans and a striped polo. He wears his hair longer than most, kind of Euro. It doesn’t touch his shoulders, but the strands in front are long enough to lie down when combed straight back. I’ve talked to Tom a few times, and know he’s a Long Island native and undergrad Domer.

“Mr. Longo,” Rice says. “Not having any idea about a case is no impediment to discussing it!”

We laugh and Longo blushes, red as a flashing beacon on the Jersey shore.

Rice recites the facts. The plaintiff, Marie Kelly, was injured by a drunken driver in a head-on collision. She sued not only the motorist (Mr. Gwinnell) but also the social hosts (Mr. Zak and his wife) who had served him two or three drinks. The issue is whether the Zaks’ independent act was a proximate cause of Kelly’s injury.

Rice asks, “May a social host be liable?”

“Yes.”

“Mr. Longo, before you blurt out an answer, consider the elements! Does the law impose a duty of care on social hosts not to serve liquor to the point of intoxication.”

“Not sure. There’s a duty for bars not to serve someone who’s already drunk.”

“Good. Commercial sellers have such a duty,” Rice says. “But what about social hosts?”

Longo doesn’t know.

In this case, the New Jersey court imposed a duty. It wrote, “In a society where thousands of deaths are caused each year by drunken drivers, where the damage caused by such deaths is regarded increasingly as intolerable, where liquor licensees are prohibited from serving intoxicated adults, and where long-standing criminal sanctions against drunken driving have recently been significantly strengthened to the point where the Governor notes that they are regarded as the toughest in the nation..., the imposition of such a duty by the judiciary seems both fair and fully in accord with the State’s policy.

Rice tells us that social host liability is a minority opinion. Most states don’t agree.

“What about the Domer rule,” Rice asks, “where an underage student may drink in his room as long as no one sees him and there’s a bag around the bottle?”

We laugh. How does Rice know?

“It’s designed to encourage solitary drinkers,” Rice deadpans.

“No liability,” Tom says.

“Don’t give a conclusion! Approach the question like you would on an exam – from the top down. Duty, breach, causation, damages.”

That done, Rice questions Longo on whether bartenders may be held personally liable. He says their main responsibility is not to serve liquor to someone already intoxicated.

“Although the book doesn’t agree,” Rice says, “in some jurisdictions a bar could be liable to the drunk driver himself for injuries suffered.”

A student asks about underage drinking and bartender liability.

“In that situation, it’s ‘Katie, bar the door,’” Rice says.

Longo’s been standing for so long he’s no longer blushing.

Rice lets him sit.

I expecting to hear something like, “Make sure you never appear in New York Municipal Court unprepared.”

Instead Rice says, “Thank you, Mr. Longo. You were magnificent.”

* * *

Week Twelve, Part 8 - ‘A’ Wish

On Saturday it snows hard, and the wind picks up. Out the back window, I can see branches of our blue spruce swaying back and forth.

The house is quiet though. Terri works in the basement, churning out sale proposals for AT&T. Stephie and Lauren are gone for weekend visitation. There’s not even a football game to distract me, as the Irish have a bye week.

In the morning I brief my cases for Monday, then study Legal Research all afternoon. The final exam – our first – is on Thursday. Notre Dame profs are stingy graders, I've heard, and this news worries me. Since kindergarten, I’ve been on the right edge of the bell curve and want to keep it that way.

I sit on the floor with my back against the leather couch. On the coffee table in front of me, I spread out my notes and the supplemental texts. To the right is a laptop. I review my notes from Dean Roger Jacobs on the six types of secondary sources. Do I need to know that CJS stands for Corpus Juris Secundum or that the Kresge Law Library subscribes to 700 periodicals and indexes? Doubt it, but I tuck the factoids away just in case.

Patti Ogden’s comment on the last day of class rings in my head: “There's no denying that some of you will score higher than others.”

I want A’s. Only A’s. “The golden apples of the sun,” to borrow a line from Yeats.

Like it or not, grades reflect a student’s intellectual ability and academic quality. I’ve always had this belief. It makes me study and fuels my acute dislike for low marks. And, I admit, throughout high school and college, grades were more important to me than what I learned. By far.

I break for supper, then study another two hours.

Suddenly the power goes off and the house darkens. The storm must have toppled some power lines. My laptop, now on battery, glows like a radar screen. An hour later, however, it too is out of juice.

Terri joins me in the living room. The house is getting cold. I move our biggest candle to the coffee table and page through Dworsky’s User’s Guide to the Bluebook. Like a young Abe Lincoln, I study law by the flickering light.

* * *

Week Twelve, Part 7 - Legal Ethics: Mile Wide, Inch Deep

Of all my classes, it seems that Ethics is the least academic. The lectures by Dean David Link lack the depth and nuance of other profs. By now, their shallowness is getting irksome.

On Wednesday, Link starts class with a question. “Is there a ethical perspective that coordinates the theories of utility, rights, and justice?”

We wait. The question is clearly rhetorical.

“I believe there is,” Link says, “and it’s been developed by a fellow named Kultgen. He’s a modern philosopher who does professional ethics, although what I’m about to give you is really Link-on-Kultgen.”

He writes on the board: “A lawyer professional ought to perform that act which on reasonable reflection recognizes all moral rights and responsibilities, and maximizes the net benefits of the moral community, and distributes them fairly."

Link turns back to the podium and steps to his right.

Oh, no. Here it comes.

He swings his leg high. Thump. Link plants a shiny shoe on the desk.

“‘...On reasonable reflection...’ You gotta look at each situation by itself. Don't just come up with solid rules like ‘Never lie.’ Maybe it’s justifiable under several circumstances, such as Atticus Finch protecting Arthur 'Boo' Radley.”

Whoa! Slow down and elaborate. Truth-telling is a major challenge for lawyers. I want to call out, “Dean Link, give us your definition of a lie! If there’s a hierarchy of values which permits lying, flesh it out. Which principle is paramount?”

Instead Link powers ahead. “‘...Recognizes all rights and responsibilities...’ This is a reflection of moral rights theory.”

Next phrase. “‘...Maximizes the net benefits...’ Here is a sophisticated system of utility.”

We move on. “‘...Of the moral community...’ Look at all persons affected by an action, transaction, or ethical dilemma; not just you and the client.”

Link concludes. “‘...Distributes these net benefits fairly...’ Justice theory.”

That’s it on Kultgen. No application to the complex and often ambiguous dilemmas that lawyers face. No perspective on how this coordinated approach might better keep attorneys from breaching the boundary between right and wrong.

I start to think that a better name for the class would be Ethics Light.

* * *

Week Twelve, Part 6 - Follow The Money

Late on Thursday afternoon I interview Andy McLean, NIBCO's manager of the Rocky Mountain region, for my article in Connections. Then I type away for three hours until the story is done.

The Denver airport sounds impressive – bigger in size than all of Manhattan. To build it cost four billion dollars. Most importantly, for my article anyway, the contractors bought over $500,000 worth of NIBCO’s ball and butterfly valves.

The way I figure it, the money flow goes like this: the airport authority pays a half million to NIBCO, of which $75.00 goes to me, all of which I send to the University of Notre Dame. No wonder the Dome is golden.

As I finish up, Terri comes down into my office. I show her what I’ve written.

“Shouldn’t you be studying?” she asks. It’s a gentle scold.

I stutter a bit. “Terri, I’ve wanted to be a lawyer for, what, one year? I’ve dreamed of being a writer since I was old enough to read!”

She sits on my lap and puts her arms around my neck.

“But, you’re right,” I say. “Starting tomorrow I’ll hit the books hard.”

We kiss.

“And who knows,” I say. “Maybe NIBCO will need a law clerk this summer.”

* * *

Week Twelve, Part 5 - Crim: Detecting Lies

In Criminal Law, we look at Schmerber v. California, a 1966 Supreme Court case. The issue is whether involuntary tests to determine the blood-alcohol content of a drunk driver violate the Fifth Amendment’s right against self-incrimination. The Court held in a 5-4 vote that the withdrawal of blood is “non-communicative in nature” and thus is not subject to privilege.

Dutile calls on Anthony Wisniewski, a brash East Coaster from the Catholic University in D.C. He’s wearing a long-sleeve t-shirt and jeans.

The questions progress from simple to complex as Dutile explores the gray area between testimonial and physical evidence. From three rows away, I can see the sweat on Wisniewski's forehead. Finally, after a string of "I dunnos," Dutile asks Mr. Wisniewski to opine on the holding.

“Schmerber is BS!” Wisniewski barks.

The class laughs.

Dutile’s eyes widen. “An unhappy choice of words, but go on.”

“If the involuntary drawing of blood isn't forced self-incrimination, what is? There’s no practical difference between giving self-incriminating testimony and providing self-incriminating evidence," Wisniewski says. "The 5th Amendment should cover both.”

Dutile broadens the topic. In most cases, he says, physical evidence is not protected by the Fifth. A suspect may be ordered to give fingerprints or, like O.J., his hair fibers. The Fifth Amendment only protects the defendant from giving testimonial evidence.

Dutile raises the issue of lie detector tests. Since the defendant is answering questions, the answers are clearly testimonial. But the polygraph is also measuring physiological responses.

“Please note,” Dutile says, “that lie detection depends on what the defendant perceives to be true. Suppose Mr. Wisniewski thinks the sun rises in the West, but says ‘the East.’ His blood pressure will go up and the polygraph will detect a lie. There is no ‘reality database’ attached to the polygraph.”

Dutile says lie detection is more accurate than formerly thought and may be recognized in some courts. For the most part, however, polygraph results are inadmissible. This exclusion includes even the physiological responses that the expert observes: pulse rate, temperature, perspiration.

“At first blush you might say, ‘That's physical stuff.’ But if we accept the notion that testimonial means ‘I am affirming something true or false,’ it’s relatively easy to make the case that polygraph tests come within the Fifth.”

Dutile adds, “Now Mr. Wisniewski, that doesn't mean you ought to let your client sit for one with the prosecutor. Even though the results may not be admissible, the answers he gives might be considered testimony.”

The period ends. I deviate from the truth just a bit and tell Anthony he did great. Analogous to Schmerber, the class was an involuntary test to determine the brain-information content of a stressed 1L. The poor guy deserves some praise.

At home later that evening, I put my casebooks away and walk upstairs to tuck little Lauren into bed. She’s just had a bath. Her hair is wet and shiny, dark against the pink pillow.

We say our prayers.

“You look pretty.” I kiss her on the cheek.

Lauren smiles. "You're handsome.”

“Are you telling the truth?” I ask, fishing for another compliment. “I can give you a lie detector test and find out.”

“Well, except for that bald spot." She puts her hand on my forehead.

“Thanks, Honey. We’ll go with your first statement.”

* * *