Week Fourteen, Part 2 - Cram Session

On Tuesday night, I join a group of thirty students at a study group sponsored by West Bar Review. Each session features a videotaped lecture, about four hours long, covering a substantive area of law. Whereas the Socratic method delivers information in drips and drabs, the West tape gives it straight.

The topic for tonight is Civil Procedure. Harvard’s Arthur Miller, the instructor, introduces the material: “Jurisdiction is the jewel of the course. It deals with big issues. And it provides a way of testing the intellectual character of the student, because the stuff can be deep.”

That’s an understatement, I think. Since Week Two, I’ve been lost in the CivPro sea. During the mock midterm, I didn’t know enough to write a simple answer.

Professor Miller divides CivPro into seven areas: subject matter jurisdiction, personal jurisdiction, notice, service of process, venue, removal, waiver.

He summarizes the major cases, such as Professor Joseph Bauer’s favorite, Pennoyer v. Neff. Miller emphasizes the key points which must be included in every answer. Without them, the student will lose points, “even if you just wrote the greatest paragraph since the preamble to the Constitution.”

When Miller explains “venue,” our current topic in CivPro, I’m frantic to get everything down. Since my Immunity Days stunt last week, Professor Bauer hasn’t called on me. I fantasize that I’ve earned “true immunity,” meaning I’m free from Socratic cross-examination for the rest of the semester. But I know in my bones that it’s the opposite – Bauer will drill me sometime soon, maybe tomorrow.

Miller says there are three elements in any venue situation.

1. Is there venue under the statute?
2. Can and should I transfer venue “in the interest of justice?”
3. If I can't transfer venue, should I “forum non it out?”

He defines forum non conveniens as “this ain't a convenient place.”

We laugh along with the taped audience.

Miller’s example is a case involving Union Carbide and the deadly gas leak at its chemical plant in Bhopal. “The federal court said, ‘Get out of here. Go to India.’"

At 9:00 p.m., the video ends. It’s cold and dark outside, but there’s a lightness in my step as I walk to the car. For the first time, I’ve heard Civil Procedure explained in a way that makes good sense.

* * *

Week Fourteen, Part 1 - Contracts: Psychological Crisis

Due to the Thanksgiving holidays, we only have three days of class, Monday through Wednesday. Rather than ease up, however, the profs go full bore. Final exams are approaching and we all sense the urgency.

Contracts class is the worst. We lag 100 pages behind the other two sections, and there are only four periods remaining.

Professor Cathy Kaveny starts class by telling us, “The one thing harder than taking an exam is drafting it.”

No, I think. Try being a 1L with a rookie prof and new casebook!

We motor through five appellate cases under the broad topic of expectation damages, one of the basic theories of recovery.

In Evergreen Amusement, a 1955 Maryland case, a contractor named Milstead was slow in completing his work. As a result, the theater opened in August instead a June, over six weeks late. Evergreen Amusement sued for lost profits based on the rental value of the theater property plus out-of-pocket costs.

We discuss whether lost profits from a business not yet in operation are too speculative to permit recovery.

Some of us agree with the appellate court. It held that lost profits are “incapable of being ascertained with the requisite degree of certainty.”

The elevated language amuses me. I imagine myself using it when my wife Terri asks, “What time will you be home from the library?”

Professor Kaveny says, “The clash here goes to the heart of contract law. As a general rule, calculating expectation damages is an exercise in speculation. You’re always guessing to some degree when you figure how to put the non-breaching back where he or she would've been. But in Evergreen, the basic point is that you can't get damages because it's too speculative. We call this the New Business Rule.”

She asks for a volunteer to make the case for Evergreen Amusement Corp.

Silence.

“John Cerone,” Kaveny says. She looks his direction. He’s a student from New York, undergrad at Cooper Union, heavy to the point of obesity.

“Well,” he says, “Evergreen wanted to bring in an expert who had opened up similar movie theaters.” John scans his brief. “He had all this cool data about weather patterns and population growth which correlated with likely profits. The expert would have showed a way to figure how much money Evergreen lost. It wasn’t speculative at all!”

John’s making the argument like he’s litigated a dozen of these cases.

“Even though we have a new business?” Kaveny asks.

“Absolutely!” says John. “Not giving expectation damages here undermines everybody’s right to recovery. There will always be variable data. You just deal with it!”

Kaveny smiles.

John adds. “I see this case as contract law hitting the wall. For some reason it’s unable to push on any farther.”

We laugh.

“You’re right, Mr. Cerone. It’s almost a psychological crisis! And if you look at the squib following Evergreen, you see the New Business Rule is in decline. In short, it’s just not fair.”

I’ve never seen a student go “big picture” and make an original argument. Wow! I want to do that. But when? It’s incapable of being ascertained with a requisite degree of certainty. Right now I’m still swimming in the primordial soup, while mutant Cerone has sprouted legs and crawled onto dry land.

* * *

Week Thirteen, Part 5 - Legal Research: Goodbye to the Bluebook

The wind whips around me as I walk from Notre Dame Law School toward DeBartolo Hall. I shudder and zip up the collar on my sweatsuit.

Today is the first of six final exams: Legal Research. Next week comes Legal Writing. Then at semester end, we will be tested in our substantive classes: Contracts, Torts, CivPro, Crim. It’s survival of the fittest!

I study the flashcards in my hand. Each one shows the proper Bluebook form for a different type of citation.

• Federal appellate cases: Valdez v. Black, 446 F.2d 1071 (10th Cir. 1971).
• State statutes: Minn. Stat. sec. 176.301 (1986 & Supp. 1987).
• Encyclopedias: 62 Am. Jur.2d Premises Liability secs. 431-46 (1990 & Supp. 1995).
• Law review articles: Richard A. Posner, Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343 (1986).

A mountain bike whizzes by, inches from hitting me. Negligence, I think. Sue all the bastards.

By 4:00 pm, the 150 or so 1L’s have assembled every other chair in the DeBartolo auditorium. It’s my second time here. Two months ago, I heard Phillip Johnson’s presentation, “Darwin on Trial: You be the Judge.” I wish I’d been created as smart as he: first in his class at U. Chi. Law, clerkship for Chief Justice Earl Warren.

The teachers for Legal Research file in: Dean Roger Jacobs, Patti Ogden, Dwight King. I imagine them as academic predators, looking to snare the weakest and dumbest of the 1L herd. They distribute the tests and we begin.

The exam has 100 questions: 50 true/false, 40 multiple choice, ten legal citations with a mistaken element. We have one hour to finish. Since there’s no fact pattern, the test feels more like undergrad.

About a third of the problems are straight-forward: mandatory v. persuasive holdings, research method options, cite differences between West and Lawyer’s Cooperative Publishing. The rest require some thought.

After 50 minutes I’ve gone through all the questions once. There are ten answers, however, I’m unsure of. I eliminate the obvious distractors and make the best choice from what’s left.

Walking out, it feels great to be done. Goodbye to the Bluebook! I think I’ve earned a B. If I had guessed on fewer questions, then I’d be hopeful for an A.

In sum, I’m proud of what I learned and feel confident in my ability to research a legal issue. For the first time in my life, the subject matter is more important than the grade. Perhaps I’m evolving into a higher-order student.

* * *

Week Thirteen, Part 4 - Crim: Rapist Beats The Rap

Thanks to cop shows and courtroom dramas, there’s one bit of law everyone knows: the police must advise criminal defendants of their basic rights. The Supreme Court case on point is Miranda v. Arizona.

In Criminal Law, Professor Tex Dutile sets out the facts. On March 13, 1963, Ernesto Miranda was arrested and taken in custody to a Phoenix police station. There the complaining witness identified him. Police officers questioned Miranda in an interrogation room at the detective bureau. Two hours later, he signed a written confession. At trial, a jury convicted Miranda of kidnaping and rape. He appealed. Miranda argued that before securing his confession, the police had not fully advised him of his Constitutional rights.

By a slim majority, the Supreme Court agreed, and ruled Miranda’s confession inadmissable.

When I read the opinion, I see Miranda as a loss for the government: a rapist beat the rap. Dutile, however, presents it as a compromise.

“Defense attorneys get warnings for every defendant,” he says. “Prosecutors can use confessions. And since Miranda requires specific safeguards, it makes for fewer Due Process violations, thus helping law enforcement.”

Dutile adds, “The day before Miranda was decided, the Supreme Court considered the voluntariness of a confession on a case by case basis. Was there adequate lighting? Was there AC? Were there magazines?”

We laugh.

“But the Supreme Court is ill-equipped to look at every damned case! So one advantage of Miranda is that it attempted to be a bright-line decision.”

Dutile calls on Jenny Zimmerman, who grew up in nearby Mishawaka, Indiana. “Why is a subject told, ‘You have the right to remain silent’?”

“Because of the Fifth Amendment.”

“Which part?”

“The privilege against self-incrimination. ‘No person shall be compelled to be a witness against himself.’”

“Good. Now, Ms. Zimmerman, what’s the second warning?”

“Anything you say can and will be used against you in a court of law.”

Dutile deadpans: “I like Frank Sinatra.”

The class laughs.

“And what’s the purpose of this warning?” Dutile asks.

“It lets the defendant know why he should keep his mouth shut,” says Zimmerman.

“Okay. And it inspires a feeling that ‘this is serious stuff!’ What’s the third warning?”

“You have the right to talk to a lawyer and have him present during questioning” says Zimmerman.

“Why all this talk about counsel?” Dutile asks.

“Part of the Sixth Amendment.”

“Does it buttress my right to remain silent?”

“Absolutely. When there’s an attorney present, the playing field is more level.” Zimmerman was a scholarship golfer at Michigan, so the sports metaphors come easily.

“And the fourth warning?”

“If you can't afford an attorney, one will be appointed.”

“Does it have to be immediately?”

“I don’t think so,” she says. “That wouldn’t be possible.”

“Correct. It might be three days later.”

A student in the back raises his hand. “Why should it be the responsibility of the police to tell a defendant his rights?”

“Well, in toto, the message of Miranda is not so much that you possess these rights, but that we’ll honor them. The assumption is that there’s intense coerciveness during interrogative custody. Coerciveness operates on my will, not my intellect.”

The student says nothing, so Dutile explains further.

“It’s not so much that the defendant knows his rights, but that he can’t be coerced. Protection against coercion is a Constitutional right. Nothing in the Fifth Amendment guarantees us a bright defendant.”

* * *