All posts filed under: Faculty Commentary

Incorrect Math Equation

Learning From Mistakes: An Imperfect Cross-Examination

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“By seeking and blundering we learn” – Goethe “I have not failed. I’ve just found 10,000 ways that won’t work” – Thomas Edison. “A spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.” – News Story, The Telegraph, 2007. The first two quotes above are inspirational and reflect insight; the third, sadly, seems to fit many lawyers who never recognize their errors and thus persist in their bad habits, especially in the courtroom. It is probably not genetic, but the recurrence argues for a model where we study error, diagnose and diagram it, and then take corrective steps. That is the rationale for this and forthcoming “learning from mistakes” columns. Although there are no hard data to back up this assertion, it is undeniable that poorly constructed cross-examinations occur on a daily basis in courtrooms across this nation. And they are conducted by lawyers with years of experience who, sadly, don’t recognize mistakes and learn …

Police lights in car mirror

If The Driver Had Been White…

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As the nation reels after multiple shootings of civilians by police and the subsequent attack on police officers in Dallas, Texas, the words of Minnesota’s Governor that, “Would this have happened if those passengers would have been white? I don’t think it would have,” bear examination. Was he guessing? Condemning a specific police officer? Or simply suggesting that an implicit bias caused the officers to perceive a threat when none was present? The word “bias” needs explication, in particular as “cognitive bias.” “Cognitive bias” does not connote prejudice, an overt and explicit hatred of an individual or group. Instead, it is a psychological term and means that hidden cognitive processes drive what we see and our interpretations of those observations. That racial bias can affect how information is processed cannot be doubted. Study after study has shown that respondents will judge the same scenario differently depending on the name of the suspect; for example, more people were likely to vote for the death penalty when reviewing a case file if the name of the defendant …

Checklist

Do Lawyers Need Checklists to Reduce Error?

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Can checklists reduce lawyer error? As they do for doctors or airline pilots or building engineers? Although the focus on this technique has largely been outside of the realm of the legal system, there is enough known to say that its application to lawyers is both necessary and likely to be beneficial. That lawyers do make errors, and errors of grave consequence, cannot be doubted. While it has been written that “[n]o empirical research exists regarding error rates by lawyers, but it is reasonable to assume they make errors as often as doctors[,]’ McClurg, FIGHT CLUB: DOCTORS VS. LAWYERS – A PEACE PLAN GROUNDED IN SELF-INTEREST, 83 Temp. L. Rev. 309, 349 (2011), there are some estimates if not hard data. The late Justice Scalia, when defending death penalty jurisprudence and practice, famously (or perhaps infamously) quoted a New York Times article that “the error rate [in criminal cases is] .027 percent–or, to put it another way, a success rate of 99.973 percent.” Kansas v. Marsh, 548 U.S. 163, 198 (U.S. 2006). Of course, this …

Flags

Brexit Will Fuel Citizenship Arbitrage

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The unexpected result in the British referendum is hitting the news today like a thunderclap. As the financial markets tumble, few will escape Brexit’s consequences. But none will feel Brexit more than those whose employment and residential security have been contingent on the UK’s continued EU membership. An estimated 3 million citizens of other EU member states live in the UK. Meanwhile, 1.3 million Brits live in other EU member states. For this population, Brexit spells uncertainty, at least. No more will moving across the Channel for work, study, and other purposes be almost as easy as moving across the Hudson River from New York to New Jersey. Getting another nationality will in many cases be the answer. Think citizenship insurance. Free movement rights formerly guaranteed under the EU treaty regime will be up for grabs. Those who are allowed to stay will face visa applications, registration regimes, and other bureaucratic hassles. Others may face expulsion. As EU citizens – a status that comes with citizenship in an EU member state — these individuals have …

The Franklin Institute

Why The Franklin Institute Can No Longer Charge Disabled Guests Twice

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My son, Michael, is a 34-year-old who has cerebral palsy. Despite his disability, he knows how to enjoy life. He’s very active in politics, he loves sports, he loves museums, and he loves going to concerts. But he can’t do any of these things by himself. While he can drive his own power wheelchair, for just about everything else – getting dressed, eating, showering, transferring from bed to wheelchair, shaving, driving in his van, going to the bathroom – he depends on somebody else to help him. He has attendants 24/7. Because of his disability, jobs are hard to come by, and even when he finds one, it’s always part-time. He relies mostly on Supplemental Security Income and food stamps to get by. Accordingly, even more than most, financial considerations limit the number of things he can do. But he also faces an additional obstacle. When he goes to an event, he gets charged twice – once for himself and once for his attendant. Now on the surface, this might seem reasonable. After all, the …

The Supreme Court of the United States

The 2016 Election’s Effect on the Supreme Court

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Insulation from the winds of political change. Protection of minorities from the majority’s tyranny. Such is the jargon describing the United States Supreme Court’s role in government. Once a judge ascends to our highest court, firmly seated to exercise life-long power, the judge is expected to embrace a duty of impartiality, rendering decisions reflecting “neutral” legal principles, not partisan politics. The reality of judging presents something quite different from this pristine vision. Even in uneventful presidential elections, entanglements emerge between the Supreme Court and politics. But the current election season has produced an alchemy that promises the presidential election extraordinary influence on the Court’s membership and decisions. What makes for special circumstances? Answer: a particularly polarized electorate, the presumptive selection of an outsider candidate for the Republican Party, Justice Antonin Scalia’s death, an aging Court, and the Republican Senate’s unusual success in avoiding confirmation hearings to fill the Scalia vacancy. Assuming, as appears most likely, that the general election will present Donald vs. Hillary, let’s consider how these candidates will approach judicial appointments. We should …

Reptile

Reptiles in the Courtroom

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It is remarkable, as one reads cases, to find a series of published ORDERS in which judges tell lawyers to keep the “reptile” theory out of the courtroom. THIS MATTER having come before the Court on Defendant Ruta Obergfell, M.D.’s Motion in Limine #1 to Preclude Impermissible Use of the Reptile Theory, and the Court being fully advised in the premises, IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED. The Plaintiffs and their counsel are hereby barred from arguing or soliciting testimony based on the REPTILE theory including, but not limited to, making arguments or soliciting evidence concerning “community safety or protection,” “public safety or protection,” “safety rules,” “sending a message, “needlessly endangering patients,” or “being guardians of the community.” Hopper v. Ruta, 2013 Colo. Dist. LEXIS 249, *1 (Colo. Dist. Ct. 2013). See also, Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015)(“ Defendants’ motion to prohibit any Golden Rule argument and/or Reptile Theory questions and argument is GRANTED.”). A less successful attempt occurred more recently, …

Moot Court Room Judges Bench

When Judges May Not Judge

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Perhaps it is not a startling position, but “when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case[,]” that judge must recuse himself or herself from judicial or appellate review. That principal is now enshrined not merely as one of professional conduct, but as a guarantee of Due Process. And this came about in a case with some Temple Law connections. The decision came on June 9 in a 5-3 ruling from the United States Supreme Court in a case from Pennsylvania. In Williams v. Pennsylvania, Terry Williams, a death row inmate, had won a last minute reprieve and the right to a new penalty trial when a Philadelphia Judge determined that “the trial prosecutor had suppressed material, exculpatory evidence…and engaged in ‘prosecutorial gamesmanship.’” When the prosecution appealed that ruling the case went to the Pennsylvania Supreme Court, presided over by then-Chief Justice Ronald Castille. There was only one problem – the Chief Justice had been the District Attorney at the time of Williams’ original trial …

The Supreme Court of the United States

Garland deserves a fair hearing, Sen. Toomey

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U.S. Sen. Pat Toomey recently wrote an op-ed to explain why he opposes Chief Judge Merrick Garland’s U.S. Supreme Court nomination. Any senator has the right to oppose judicial nominations, but it is flatly irresponsible for Toomey to deny Garland a hearing or vote until the next president takes office in January 2017, or later. Toomey supports this long wait for the political goal of maintaining a conservative majority on the court, and that is unprecedented. It is bad enough that an eight-justice court cannot resolve the country’s hardest legal problems for a year or longer. However, the long-term impact of Toomey’s position for future nominees could be much more destructive. No Supreme Court nominee in history has been rejected – much less denied a hearing – simply because a Senate majority used its muscle to demand nominees that fit its ideological preference. Toomey’s op-ed described Garland as “a pleasant man with impressive legal training and experience.” “President Obama could have chosen dozens of nominees who would be more politically liberal than Garland, but no …

Witness Impeachment

Impeaching By Omission

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The art of witness impeachment is inextricably bound with the substantive law of evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by the party) and set the procedures for attacking with inconsistencies – the impeaching document need not be shown to the witness, and impeachment must occur with there being some opportunity for the witness to respond and explain. But the rules are silent on at least two critical issues – the why of impeachment, and a definition of what exactly makes a prior statement “inconsistent.” The former question is one answered not in evidence law but in the art and techniques of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars or mistaken and unreliable. We impeach witnesses to tell or support our own story. We impeach witnesses for the drama it brings to the courtroom and the control it places in the hands of the questioner. As to when a prior statement is “inconsistent,” there is little in terms of a definition beyond inconsistency being in the eye of the advocate/beholder, with a judge viewing …