Okay, I'm taking the Baby Bar on October 25th, and I'm starting to get a little stressed.
I'm doing 100 MBE's a day, and just hoping for the best...
I'm doing 100 MBE's a day, and just hoping for the best...
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Messages - chaser
This is a very interesting case, because if the plaintiff establishes the "assault," she (or I guess her husband) breaks the "causal nexus" of Respondeat superior; because "illegal" behavior is almost always considered to be "the servant 'frolicking' outside the scope of his duties."
In other words, if the plaintiff establishes assault, she ipso facto must go after the more "shallow pocketed" employee.
One strategy that might modernly be employed is to attack Western Union on a "negligence" theory--on the theory that they were negligent in exposing the public to the employee due to failure to pre-screen his employment for "red flags" like the alcohol or (alleged) sexual assault problems; or that they were negligent in not giving him remedial treatment once he was hired and the problems developed. (If, in fact, such evidence exists.)
An extreme case that would demonstrate my proposed strategy would be Dean v. Oppenheim Davidson, Alameda Superior Court No. 809231-1 (2000); where the defendants hired a convicted felon to do in-home carpet care, and he robbed and stabbed the female customer.
There is more information on this case at:
(Of course, this page is trying to sell employers "employment screening" on the theory that they could potentially save $9.3 million.)
In a purely metaphysical sense, what I think really happened in the principal case is "Interference with a Contractual Relationship." I.e., the lady came in for a "legal purpose" which was to get her clock fixed, and the tortfeasor attempted to "block" the legal contract and turn it into a meritricious, illegal contract for sex. ("Illegal" in the sense that the courts won't enforce the contract.)
Of course, then you are going after the "shallow pocketed" clerk, and also that tort usually goes the other way, e.g., "Western Union v. Boycotters with Signs," or something.
How is advising her to exercise a legal option "intimidating"?
I don't see any facts in the principal statement that lead to that conclusion, e.g., "And he told her if she DIDN'T; she would flunk his class."
If he said something like that, it's a different story.
There is also some "contributory negligence" on behalf of the "future lawyer" (i.e. the female student) in question--unless, of course, the sex was coerced and not totally consensual.
« on: August 14, 2005, 08:27:46 PM »
Lawyers--as licensed officers of the court--are sometimes dealing with life and death issues. A diametrically opposed 6th Amendment duty is to give the client the most aggressive representation ethically and legally possible.
The principal posting seems to contend that it is impossible to balance these two duties. I beg to differ.
It almost goes without saying that lawyers should be held to the highest degree of ethical and professional conduct.
Example: An estate attorney has a fiduciary responsibility to enact the legal wishes of a deceased person, within the confines of public policy. Who is more "vulnerable" than a deceased person?
For that matter, who is more "vulnerable" than a presently incarcerated person?
I think the vast majority of lawyers entered law school originally to effect positive social change. Sure--some entered for pecuniary gain. However, I think it is possible to achieve an ethical and honest living in the profession and still effect positive social change.
In other words, you attain both--and I would argue more efficiently and with less stress--if you listen to your moral compass. (If you don't have one, sadly, you should probably get out of the profession before you succomb to the inevitable temptations and get in deep trouble!)
I am a 1L at Northwestern California University in Sacramento. I take the Baby Bar on October 25th,
Here's another case that might interest you. (The original case is documented in a new book called, "Love on Trial" that is supposed to be pretty good. [As if law school students had time for recreational reading!]):
TOPIC: Alleged fraud in the formation of a marriage contract.
CASE: Leonard Rhinelander v. Alice Rhinelander; 219 A.D. 189; 219 N.Y.S. 548; Supreme Court of New York, Appellate Division, Second Department (1927).
FACTS: Leonard was the scion of a wealthy United States family similar to the Vanderbilt's. Alice was an immigrant from England who, in the parlance of the day, was "of colored blood" and "could pass as white."
New York only allowed divorce upon the finding of adultery--which led to many "creative" marriage annulments. Interracial marriage was illegal (meaning in this case viewed by courts as contrary to public policy) in many U.S. jurisdictions including this one; presumably until Loving et ux. v. Virginia; 388 U.S. 1 (1967).
Leonard alleged in the original trial that Alice had made misrepresentations of her race in the formation stages of the marriage contract.
In this appeal, Leonard contended that the judge had made an erroneous instruction to the jury regarding the weight they should place on Alice's refusal to testify (or "neglect to testify," if you will) on her alleged misrepresentations and Alice's father's (who was obviously black and whom Leonard had known during the contract negotiations) refusal to testify (see: Footnote).
HISTORY: Plaintiff appealed a decision from the Supreme Court of Winchester County, New York that found for the defendant--to wit, that there was no misrepresentation.
ISSUE: Was the judge's instruction (Footnote) regarding the defendant's refusal to rebut the allegations of misrepresentation with personal testimony in error?
RULING: No. The judge's instructions (Footnote) were not in error.
RATIONALE: (Per Curiam) The judge instructed the jury that no presumption arose out of the defendant's refusal to testify. but that they should give this fact any weight that they chose to give it during deliberations.
The plaintiff's counsel made no request for the court to instruct otherwise on the subject in the original trial.
Counsel at trial also refused to make the distinction between the father's refusal to testify and the defendant's.
DISSENT: (Lazansky) The instruction was an error as to presumption.
RULE: Absent the plaintiff's objections to the contrary, the judge in an annulment proceeding may instruct the jury to give whatever weight it wishes to the defendant's refusal to testify (or neglect or failure, if you will) on a given issue.
FOOTNOTE: The trial judge's instruction was:
"While no presumption arises in this respect, you are at liberty and can give it such consideration and draw such inferences as you think are warranted by the proof from the failure to call such witnesses or to call any witness who might shed light upon the case. Except in certain specific instances and then under specific circumstances there is generally no hard and fast rule that applies.
"Neither the defendant nor the plaintiff is bound to call every person as a witness who might give some material evidence in his or her favor, and yet if they do not you are at liberty to deem it of sufficient importance to merit your consideration, and if you do, then give it such consideration as the circumstances and the testimony in the case warrant."
Unfortunately, we only brief appellate cases in law school.
(The Left Wing/Naderesque critique of this, of course, is that with the exception of Criminal cases that interested some "big shot" firm enough to do pro bono work, we only critique cases wherein the parties had the capital to appeal; in the classic Langdell "Case Briefing"-method.)
In this case, the facts in the original trial are of the "truth is stranger than fiction"-realm. In fact, this case was a contender for "Trial of the Century" before California v. Simpson.
Inter alia, there was evidence that the plaintiff had "carnal knowledge" of the defendant before the marriage, which was technically illegal at the time ("Fornication").
The defendant had to appear before the all-male jury nude to the waist.
(I guess black womens' breasts look different? I don't know; I'm a law student--I've forgotten what white womens' breasts look like!)
« on: August 11, 2005, 03:12:19 PM »
This is certainly an interesting topic.
A landmark case that I would think would be at least tangentially relevant to an argument IN FAVOR of letting a convicted felon sit for the bar would be Johnson v. Avery; 393 U.S. 483.
This was the case that struck down a prohibition against so-called "jailhouse lawyers," i.e. prisoners helping other prisoners prepare petitions.
The theory is that it would be unconscionable from an Equal Protection standpoint to disallow an illiterate felon from getting assistance from a literate felon.
In other words, to me, the case is saying that "The smartest guy on Cellblock D"--who is not necessarily a lawyer or ex-lawyer--is better than no counsel at all.
If one were citing this case, a case would have to be made that the ex-felon planned on doing a lot of pro bono and community service work--perhaps planned on becoming a public defender.
A side-note in this case, I believe, was that the judge felt that prisoners doing research and writing petitions was much more constructive than some of the alternative things they COULD be doing.
You could make the tangential argument that lawyering has a rehabilitative quality on the ex-felon, by conjecture. (And not many batteries occur where the weapon of choice is a Black's Law Dictionary.)
In my opinion, since we let convicts become undercover cops--where they can have legal authority to restrain a citizen--we should surely CONSIDER whether they can become lawyers.
(In jurisdictions which allow it; I would think it would be a factor whether the violation was a MALUM PROHIBITUM or a MALUM IN SE. For instance, marijuana was not even illegal in the US until 1931. Lincoln could have smoked marijuana in his law office, and not gotten disbarred. Should felony possession of marijuana be a total block to bar membership? Clearly, that's a MALUM PROHIBITUM.
"Aggravated assault," on the other hand, has been a MALUM IN SE since the inception of common law.)
FOOTNOTE: A famous attorney who was disbarred and then re-instated is obviously Frank Ragano:
(Note: I do not necessarily subscribe to the JFK conspiracy theories on the above page.)
Ragano, of course, is evidence of my "MALUM PROHIBITUM"-theory; to wit, alleged income tax evasion is a "malum prohibitum," since the US did not have income tax--and somehow survived--until the early 20th Century. (That's a century and a half of "Republic" without the "malum prohibitum.")