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Volume 24, Number 1 (2000) reprinted by permission Legal Studies Forum THE REAL WORLD SCHOOL OF LAW JEREMY GILMAN* Forty three faces stare at him blankly. Dean French continues. "After nine years of an often acrimonious, always uphill struggle to win accreditation from the self-proclaimed gatekeepers of the legal profession, we have finally prevailed, for which I'm both very proud and profoundly relieved. Why, you may ask, were we constrained to fight? Your guess is as good as mine. Perhaps it was economic; maybe the poo-bahs who hold the keys feared that our three-day approach to legal education would ravage the boondoggle long enjoyed by those who took three years to complete the task. Perhaps it was fear; maybe our commitment to the simplicity of law challenges the foundation of those who bill for its complexity. Or perhaps it was our colleagues' institutional inclination to distrust, fear, loathe, or exclude; ours is, after all, an adversarial system, and they were simply being true to form. Whatever it was, we're here, we're accredited, and if you stick with us for the next three days, you'll be eligible to sit for the Bar exam and become lawyers. So, welcome to our law school-please bear with us, and open your notebooks. Does anyone have any questions?" No one does. "Good," the dean says. "Few things annoy me more than pointless questions. Let's proceed. I'll start with the course we call 'What is Law.' It's helpful to know if you're going to practice it. Who knows what the law is? Any takers?" The class fidgets in unison and many pretend to take notes to avoid eye contact with the dean. Finally, a woman in the second row raises her hand. "Yes? Your name?" "Elaine Whittle." "So tell us, Ms. Whittle, what is the law?" "It's a mechanism for enforcing societal expectations. Sort of a distillation of competing, often antagonistic objectives into a common mid-point." "Wrong. Anyone else? Yes, the gentleman in the back. Your name?" "Davis Michael. Law is society's attempt to control itself. It's a product of our mutual recognition that without it, there'd be anarchy." "You mean we'd all steal from each other, have incest, and commit murder at our leisure?" "Yeah . . . sort of." "Wrong. Any other ideas? Yes? Your name? "Lila McHow." "Ms. McHow? Tell us what the law is." "Law is rules." "So if I open a box of Monopoly and there's a little sheet on top called 'Rules,' those rules are the law?" "To a degree, yes, I'd say there are." "So if I violate one of the rules of Monopoly, I can be sued or go to jail?" "No, not exactly, but. . ." "But the Game Police can arrest me?" "Possibly." "Anyone else? No? OK. How about this: By and large, the law is nothing but common sense. It's the rule of the obvious. If a patient goes in for a nose job and the surgeon amputates her arm, he's negligent. If a company refuses to hire someone because he's a wheelchair-bound dark-skinned Jewish Hispanic who's sixty-two years old, it's discriminating. Let's try a tough one. If you paid me twenty dollars to bathe your dog on Saturday and I failed to show up, what did I do? Anybody?" "You decided to hold out for more money because if you don't show up to bathe the dog, it'll stink so bad they'll pay you twice as much to do the work." "You'll make a good lawyer. But more fundamentally, what did I do? What if I signed a forty-million-dollar contract to play baseball for the Minnesota Twins and didn't show up for any of the games? What did I do? The lady in the third row? Your name?" "Margaret Donat. You breached your contract?" "Bingo. Which is common sense. I made a promise, you agreed to do something in return, like pay me, I broke my promise, I breached our contract. Who thinks that's a difficult concept?" No one does. "Since we're on the subject of contracts, why don't we finish it up? Let's go back to the dog-bathing hypothetical. I blew you off. You're mad at me. Fido smells like a landfill. What do you do? Sir? Your name?" "Peter Kow." "Mr. Kow. What do you do?" "Sue?" "That's one option. Any others?" "Threaten to sue?" "Good. Threats of lawsuits are often more effective than lawsuits themselves. Let's hear a possible litigation threat. Mr. Kow, would you like to take a crack at it?" "I'll try." "Go for it." "OK. Given your failure to bathe Fido as and when you promised . . ." "Good. I like the 'as and when' part. Very lawyerly. Go on." ". . . Fido now smells like a latrine . . ." "Excellent. You're setting it up beautifully." ". . . so much so that we've been forced to demolish the house in which we've lived for twenty-six years because it's become a public health danger. . ." "Perfect." ". . . and my aged Aunt Sally was hospitalized for acute nausea." "Careful. If she's too old it may be harder to get damages. Make it a younger person. Go on. Now come in for the kill." "OK. Clearly, none of this would have occurred had you abided by your promise . . ." "By your express, unambiguous promise." "By your express, unambiguous promise to bathe Fido as and when you promised. But given your failure . . ." "Your inexcusable failure." ". . . and refusal to do so, we have sustained damages. . ." "Significant damages. Now list them, and say it's without limitation." ". . . including without limitation damages relating to the loss of our house, loss of use of our house, loss of use of the furniture in our house, loss of. . ." "Enough with the house already." ". . . and damages pertaining to Aunt Sally's medical and psychiatric care and loss of Fido's consortium." "Dean French?" "Yes? Your name?" "Bartholomew Levine. Can you recover for loss of a dog's consortium? Or a cat's, for that matter?" "Probably not, Mr. Levine. But you should ask for it anyway. The other side may not know any better. Go on, Mr. Kow. Finish your demand letter." "Therefore, please pay us. . ." "No, no, no. No pleases. Please is a nice word. A polite word. You're tough. You're mean. Forget etiquette. Go for the jugular. Use the word demand." "Therefore, we hereby demand that you pay us. . ." "Hold on, Mr. Kow. What do you think, class? This is your first litigation situation. How much do you demand from me for breaching my contract to bathe Fido? Anyone? Your name?" "Sal Ricci. A million dollars?" "Why a million?" "Why not?" "Good answer. I'm serious here. Anyone else? Ms. . . ." "Thal. I'd make it a less rounded number. Something like $937,485.62. That way, the other side thinks you've got a very specific measurement of damages and may be more inclined to believe you." "That's clever, Ms. Thal. But what if he asks how you got that number?" "You tell him it's none of his business. Either pay up or I'll sue." "I like that. You're thinking like a lawyer. Anyone else? Mr. Michael?" "I agree with Ms. Thal, but I'd make the amount more than a million dollars. Once you're in the seven figures, you really get their attention." "Indeed." "And I'd also include with the letter a before-and-after picture of Fido. You know, a picture of him all clean and bathed and then another one where he's full of fleas and flies are swarming around him and he's all matted and disgusting, and you can also show a picture of Aunt Sally in the hospital hooked up to an I.V. tube, and maybe a vacant lot where the house used to be. . ." "I'd settle for the before-and-after picture of the dog. So what do we think? A million, plus or minus?" The class nods. "Mr. Kow, anything else?" "Yes. I'd include a claim for pain and suffering and emotional distress and punitive damages, and I'd tell him to pay in five days or else." "Or else what?" "Or else I'll sue his ass off, forgive my French, no pun intended, but I'll sue him till the cows come home. . ." "No pun intended, Mr. Kow?" The class laughs politely now. "Very good, Mr. Kow," the dean continues. "Now, you should be aware that you typically cannot recover pain and suffering, emotional distress, or punitive damages in breach-of-contract cases, but remind me, class, what do we do? Remember Mr. Levine's question about loss of a dog's consortium?" "Ask for it anyway," the class chants. "The other side may not know any better." "Good. So that's contracts. Any questions before we move on to criminal law? In the back. Your name?" "Adam Ortiz. What if the guy shows up on time and bathes the dog like he said he would? What happens then?" "What happens then is simple. Either the dog bather gets paid and everyone goes home, or you, as a clever lawyer, try to figure out if someone screwed up along the way. For example, what if the dog bather slipped on a rattle that was inadvertently left on the walkway near the house? Or the dog bather, while drying the dog, accidentally smashes a crystal vase that had been in your family for three centuries? The dynamics change. We'll get into that tomorrow in torts. Let's take a break now to use the facilities and then move on to criminal law." The students position their pens. "Here we go. We start with crimes. Some acts qualify, others don't. If you think it qualifies, it probably does. Next is guilt or innocence. Either you did it or you didn't. If you did, you're. . ." "Guilty," the class says. "Correct. And if not, you're. . ." "Innocent." "Good. Yes? Your name?" "Esther Candless. But isn't it possible to commit a crime and still not be guilty?" "Good point. Anyone? Ms. Donat?" "If no one catches you, you're not guilty." "Anything else? Your name?" "Harvey Rozenstein. If the prosecutor can't prove you're guilty, then you're not guilty, even if you are." "Excellent. That's exactly right. The prosecutor's got to prove guilt beyond a reasonable doubt. If he doesn't, he loses, even if the defendant is guilty as sin. So remember, if you're a criminal defense lawyer, just keep hammering away on the notion of proof beyond a reasonable doubt . . . proof beyond a reasonable doubt . . . proof beyond a reasonable doubt. Say it with me." "Proof beyond a reasonable doubt . . . proof beyond a reasonable doubt . . . proof beyond a reasonable doubt." "And another thing," Dean French goes on. "If you're representing the defendant in a criminal case, he doesn't have to testify. He doesn't have to prove his innocence. The State has to prove his guilt. So by and large, he or she will want to keep his mouth shut. Now, here's where it gets a bit tricky. The jury is not allowed to infer from his silence that the defendant's trying to hide something. They're not entitled to say, 'Oh, he didn't testify because he knows if he did, he'd get his ass handed to him.' Well, that's all nice and beautiful in theory, but what do you think the practical reality is? Mr. Ortiz?" "If I'm on the jury and the defendant doesn't say a word in his own defense, I say he's got something to hide." "And I'd probably do the same. We're human, after all. We expect people to come to their own defense. So the bottom line is this: if your client did it or you think he did it, or if he's not terribly bright and would likely get tripped up by a slick prosecutor, muzzle him. If not, you might want to take your chances, but if it backfires you'll probably find yourself in deep doo-doo. Make sure you've always got adequate malpractice coverage. And so we have crime versus no crime, guilt versus innocence, and speaking up versus shutting up. Two other things: alibis and punishment. Who knows what an alibi is?" "An excuse?" "Exactly. If you've got one, use it. If not, don't. That leaves punishment. If your client is convicted and the case goes into the sentencing phase, for God sakes, don't be defensive or pissed off at the jury. It'll only make things worse. And don't protest your client's innocence. By that time, it's too late to make a difference. Just take out the violins and play. Tell them what a lousy childhood your client had. Tell them he was a foster child who read the New Testament while his stepfather beat him with a belt. Portray him as a remorseful loser. And keep your fingers crossed. Any questions? Good. Let's move on to real estate law." Dean French takes the lectern. "Good morning, class. I trust you enjoyed your first day at the Real World University College of Law. Today we'll finish the study of law and start the study of lawyering. We'll cover torts, corporations, employment, tax, and divorce law. Ready to start?" No one says no. "Then off we go. Torts. What are they? And don't say cake. Your name?" "Antoinette Ryder. Torts are civil wrongs." "And what are civil wrongs, Ms. Ryder?" "The opposite of civil rights?" "To a degree. Let me give you an example. Let's say that, as I'm lecturing here today, I accidentally spill a can of motor oil on the floor and neglect to clean it up. You're walking to your seat, don't see the motor oil because it's clear, and slip on it, causing you to dislocate your shoulder. Is that a tort? Ms. Ryder, is that a tort?" "No, because the person couldn't see it." "Huh? Hello? Earth to Antoinette? It wasn't a tort because the person couldn't see it? I have no idea what you're talking about and I suspect you don't, either. Let's try another example. A person is driving a car the wrong way down a one-way street. He collides head-on with another car, severely injuring its occupants. Is that a tort?" "What kind of car was he driving?" "Let's try someone else, shall we? Mr. . . ." "Hoch." "Mr. Hoch. A person is driving a car the wrong way down a one-way street. He collides head-on with another car, severely injuring its occupants. Is that a tort?" "Probably so, but the extent of its tortiousness depends, by necessity, on a variety of factors. For one thing, what were road conditions like that night, if indeed the collision occurred at night? Was it foggy out? Pitch black, due to a broken street lamp? Were the streets slick from freshly fallen snow? Was golf-ball- size hail raining from the sky, causing the otherwise careful driver to jerk and swerve while valiantly attempting to dodge the missiles pelting him from above? Was his wife in labor, and was he transporting her to the hospital? Was he epileptic, enduring a seizure? Was he unwittingly misdirected by an erroneous street sign? Could dyslexia have factored into his unfortunate decision-making? Diabetic shock? Had a war been declared and pandemonium erupted? I need more facts to answer the question." "There you have it, class. That's why people love us. Let's try another hypothetical. A manufacturer designs a high-powered nuclear reactor to look like a candy store and a child walks in expecting to buy a Snickers bar. Instead, he melts. Is that a tort? Mr. Kow, is that a tort?" "Yes. There should've been candy in there." "Let's say there was. Would it still be a tort?" "Was it a Snickers?" "I'll change the hypothetical," Dean French decides. "Ms. Whittle, a woman goes into a supermarket and slips on some clear, virtually invisible vegetable oil that had spread in a thin slick across the floor after someone had spilled it a half hour earlier. The store knew that the oil was on the floor but had failed during that time to clean it or to post any sort of warning near the slick such as 'Caution: Slippery Floor' or 'Watch For Spilled Vegetable Oil.' Also, it had failed to block off the area to shoppers. The oil had spilled right near the bacon bits section which is where the woman, who happens to be your client, was shopping when her foot fell out from underneath her because of the oil, causing her to fall, the impact of which caused two hundred jars of bacon bits to topple onto her head. As a result of her fall, she fractured her leg and smelled like smoked meat for a year. Now tell me, Ms. Whittle: Did the supermarket commit a tort?" "Yes." "Good. Now we're getting somewhere. Tell me about it." "It should've cleaned up the mess." "Excellent. Brilliant. That's an outstanding legal analysis. And its failure to promptly do so constitutes-what does it constitute, Ms. Whittle?" "Incredible stupidity?" "What else?" "Poor customer service?" "Keep going." "Unpardonable barbarism?" "You're getting closer. Anyone else? Mr. Levine?" "A felony?" "No. We're talking torts here. Torts. Remember, they're civil wrongs, not crimes. We already covered criminal law. The answer is negligence. It constitutes negligence. Remember that word. Negligence. Neg-li-gence. Say it." "Neg-li-gence." "Negligence." "Negligence." "He was neg-li-gent." "He was neg-li-gent." "And if you're a defense lawyer, you say, 'He was not neg-li-gent.'" He was not neg-li-gent.'" "OK. I want to divide the class into two groups. The right side of the class represents the plaintiff and the left side represents the defendant. I'll give you different hypotheticals and each side will answer as appropriate. Ready? Let's begin. A dentist has just finished a root canal and asks his patient to swish. Accidentally, he pours Clorox into the patient's cup instead of water. Right side of the class." "He was neg-li-gent." "Left side of the class." "He was not neg-li-gent." "Good. Another hypothetical. An eighteen-wheeler tries to squeeze into a parking space outside a Pizza Hut that's marked 'Small Cars Only.' In so doing, the truck pulverizes three cars to its left and four to its right, although the truck driver still manages to get his pizza. Right side of the class." "He was neg-li-gent." "Left side of the class." "He was not neg-li-gent." "Excellent. Now a final one. After an airplane crashes in a soybean field, a young boy on his way home from school frees a woman who was caught in the wreckage. Right side of the class." "He was neg-li-gent." "Left side of the class." "He was not neg-li-gent." "OK, I think you've got the point. Now on to fraud. Fraud means deception. It's a lie that someone else relies on. That's fraud. Any questions? Ms. . . ." "Henry. What if the person who deceived you didn't mean it?" "Right side of the class." "He was neg-li-gent." "Left side of the class." "He was not neg-li-gent." "In other words," Dean French explains, "to constitute fraud, the deceiver has to intend to deceive and someone else has to rely on it. If the deceiver simply made a mistake but didn't intend to lie, he may be negligent, but he didn't commit fraud. So let's get practical. Let's say someone said something to your client that was wrong. What do you do? Mr. Kow?" "Say it was intentional and sue him for fraud?" "Bingo. And Ms. Donat, what do you do if you're representing the defendant?" "You say he didn't mean it." "Exactly." "But what if he did?" "Don't worry about that. It's irrelevant. OK, here's a hypothetical. A woman bangs on her neighbor's door in the middle of the night. The neighbor opens it, and the woman, looking hysterical, screams 'Hurry. You've got to leave immediately. Uranus is about to crash into Earth and everyone will be destroyed except those who move to Singapore.' The neighbor gathers her family, packs her bags, and moves to Singapore, where she's promptly arrested for espionage and imprisoned for the next ten years. Fraud or no fraud? Mr. . . ." "Wolfson. Fraud." "Why?" "Because the neighbor obviously knew that Uranus wasn't about to crash into Earth." "Any other takers? Ms. . . ." "Lipp. Fraud." "Why?" "Because the neighbor must have known that if Uranus crashed into Earth, Singapore would've been destroyed, too." "Others? Mr. Hoch?" "Did the neighbor herself move to Singapore?" "No. Why?" "Just curious." "Anyone else? The answer is no fraud. Why? Because to qualify as fraud, a person must reasonably rely on the deception. Reasonable reliance. Say that." "Reasonable reliance." "Good. Here's a little mnemonic device that might help. Repeat after me: Re Re, Lie Lie. You need to reasonably re-ly on the lie to have fraud. Re Re, Lie Lie. Everyone." "Re re, lie lie." "Very good. Was it reasonable for the neighbor to believe that Uranus was about to crash into Earth and that she'd be safe if she moved to Singapore? Mr. Ortiz?" "No." "Good. Why not?" "Because you're never safe in Singapore." "Fair enough. One more hypothetical and then we're done with fraud. Craig says to Morton, 'If you give me a million dollars, I'll let you talk to Leonardo da Vinci.' Morton gives Craig a million dollars and Craig says, 'Sorry. No Leonardo.' Fraud or no fraud? Ms. . . ." "Hopgood. No fraud." "Why?" "Because Leonardo speaks Italian and Morton only speaks English, so it was unreasonable for Morton to think he could talk to Leonardo. There was no re on the lie." "That's plausible, but what about the fact that da Vinci's been dead for 480 years? Does that factor into the equation?" Silence. "Let's move on to corporations and individual responsibility. But before we do, I'd like to congratulate each of you on completing more than half of your legal education. I know it's been arduous, but could you imagine doing this for three years? Corporations. People incorporate so that they won't have to shoulder personal responsibility for their conduct. It's called 'limited liability.' Corporations are legal fictions, which means they don't exist in nature, you can't see them, touch them, talk to them, or play golf with them. They don't eat, sleep, breathe, feel, or think. They are artificial. The law says 'You pay certain filing fees and taxes and voila, no personal liability.' Breach a contract? No problem. Only the corporation's liable. Someone slips in your store in a puddle of grease and cracks open his head?" "No problem. Only the corporation's liable." "Someone buys a toaster you manufactured and it blows up an entire city block?" "No problem. Only the corporation's liable." "Now, there are a few exceptions. Let's say you become incorporated for the purpose of selling flowers. A woman comes into your store and asks for a bouquet of geraniums and you deck her. Are you in the clear Ms. . . ." "Osborn." "Are you in the clear, Ms. Osborn?" "No problem. Only the corporation's liable." "Well, let's ratchet up the hypothetical. Instead of decking her, the store owner pulls out a bazooka and kills her. Is he in the clear, Ms. Osborn?" "No problem. Only the corporation's liable." "Ms. Hopgood, you have a question?" "Was it reasonable for the woman to think that the florist sold geraniums?" "Are you asking if he was justified in killing her?" "I guess." "Here's the bottom line, class: a corporation will not shield its owners from the consequences of their intentional acts but will shield them from virtually all other liabilities. So the florist would be personally liable. Who knows why that is? Mr. Hoch?" "It's simple, Dean French. It's because the law recognizes the sad fact that if people were immunized from the consequences of their intentional misconduct, they'd beat the living hell out of each other without reservation. This way, we have to think twice before indulging our instincts to beat, steal, and kill." "Exactly. And that's corporations. There are other business forms out there- general partnerships, limited partnerships, limited liability companies-and the selection of one form over the other is usually driven by tax considerations. So if you're in practice and you have any questions about any of them, what do you do, class?" "Ask an accountant." "Right. After the break, we'll finish up the study of law." "Employees at will." "That means you can fire them whenever you want and you don't need a reason. They could've saved your company from the brink of financial ruin, you could still fire them tomorrow. There are a few exceptions, like you can't fire someone because they were out on jury duty or because they filed a worker's compensation claim against you, so the thing to do is wait a little while and fire them later. And don't fire someone because of their race, religion, sex, age, disability, or national origin. If you want to unload them, try to have a better reason for doing so. Catch my drift?" The class nods in unison. "And finally, remember that sexual harassment has become a big deal these days even though no one's really sure what it means. Here are a few rules: if you're a male supervisor, don't ever compliment a female subordinate on her appearance even if she wants you to. Complimenting one will certainly piss off those whom you don't compliment and they'll sue. If you accidentally touch a female subordinate, apologize profusely, attribute it to clumsiness, and vow that it will never happen again. Never allow uninterrupted eye contact with a female subordinate to exceed five seconds because some plaintiff's lawyer will surely claim that longer eye contact creates a hostile work environment, and whatever you do, never, I repeat, never, have a private meeting with a female subordinate behind closed doors. If it is essential to meet with her, do it either by phone or have at least two witnesses present, including one who's female. Nothing of an even remotely sexual nature should ever be said, uttered, or displayed in the office. The workplace must be a sexually sterile environment. True, everyone in the workplace ultimately owes his or her presence there to an intensely sexual environment, but what can you do? Lawyers have seized on this thing. Any questions? No? Tax law. The best thing to know about tax law is as little as possible. As long as you know the basic terms, like income, loss, capital gains, depreciation, and basis, you'll sound intelligent enough to bill your time. Just remember to..." "Ask an accountant." "Right." "Dean French will cover divorce law." "Thank you, Professor Shilk, and you have a nice vacation. I'll see you next year. And now, divorce law. There are four things to know about it. First, it's as pleasant as working in the coroner's office. Second, getting a divorce is as easy as saying 'Adios, amigo.' Third, within six months you'll wish you were a migrant farm worker, and fourth, she gets the Waterford. As far as the rest is concerned, just wing it. Everyone else does. OK. That's it for the law. Before we conclude for the day, does anyone have any questions? Yes. Mr. Ricci." "What about wills and trusts and probate law?" "What about it?" "Aren't we covering it?" "I wasn't planning to. Let's take a vote. Who wants to cover it? Show of hands. I'm sorry, Mr. Ricci. You've been voted down. Anything else? Yes. Ms. McHow." "How do you actually try a lawsuit? What do you do?" "What do you think this is, Ms. McHow, a trade school? There isn't a law school in the country that'll teach you that. My best advice? Tune in to Court TV. That's what I do. And don't worry. When the time comes that you need to try a case, you'll figure it out, I assure you. Anything else? Mr. . . ." "Samuel Peleg. I'm interested in international law." "Glad to hear it. Last question? Ms. Thal?" "Can you tell us something about poverty law?" "Yes. It involves the representation of poor people. OK, class, you're ready for the Bar exam. Tomorrow we'll cover legal ethics and conduct a brief graduation ceremony." "Good morning. Today's lesson will be both the briefest and the most important offered at the law school. Everything you do as a lawyer will have stark ethical implications. Whether and when you return a phone call; how you prep a witness for deposition; what you disclose or conceal in a negotiation; what you tell or don't tell a court; how you bill a client-every decision made or deferred will affect someone else. The first rule of professional ethics, then, is so self-evident that it's too often forgotten: Don't become the kind of person you'd otherwise find despicable. This may seem perfectly obvious, but just wait. "Now for the second rule. Practicing law will provide you with an astonishing opportunity to wield power. You'll be privy to your clients' deepest secrets, custodian of some of their most valuable property, and maker of many of their most wrenching decisions. They'll need you most when they're neediest and trust you unlike any other. That said, the second rule of professional ethics is as pathetically obvious and regrettably ignored as the first: Never do anything that would piss you off if you were the client. "Finally, the third rule. Red with meat, white with fish. Good luck. You can pick up your law diplomas on the way out." "Dean French?" "What is it, Mr. Hoch?" "Will there be a final examination?" "No theological questions-please." * "The Real World School of Law" first appeared in the New England Review, Volume 20 (2), Spring, 1999, and is reprinted here with the permission of the New England Review and the author. |
