All posts filed under: Faculty Commentary

Stressed Out

Do You Have the Time to Listen to Me Whine?

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Yes. Seriously. About nothing and everything all at once. And it’s not whining. Law students and lawyers tend to put their heads in the sand when thinking about issues in their own lives. As lawyers, we are so busy solving other people’s problems – defending a criminal charge, drafting a contract, bringing a workers’ compensation claim, or working on whatever is put in front of us by a client – that sometimes we forget to check in with our own health and well-being. Perhaps because of our role in society (and, if we are being honest, our egos) we tend to think that we can handle our problems ourselves. This perception is misguided and can lead to serious consequences if the stakes are high. Trying to tackle our own issues of mental health or addiction without professional help can be an uphill battle. Yet, a lack of self-care is particularly pronounced when it comes to these issues. We suffer in silence, letting the repercussions affect our work, personal life, and well-being. If one of us …

Baggage

Taking the Sting Out: Using Direct Examination to Anticipate and Undercut Attacks on Your Witness

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Sadly, it can be the rare witness who does not come with some baggage – a criminal conviction, a potential bias, an inconsistent statement, or some other challenge to her/his credibility. So, the proponent of that witness has to make a choice – bring it out first, or simply wait for the sting of cross-examination. The suggestion of this article is to do the former, a technique supported by law and, as importantly, by the tenets of solid advocacy. As litigators, we are told emphatically that a witness’ credibility may not be bolstered before it is attacked. But this is wrong in two regards – the limitation is actually as to bolstering with character for truthfulness, which may occur only after an averment of the witness having an untruthful character; and it is inapposite when the form of bolstering has the appearance of attacking one’s own witness. Abundant caselaw makes this point. As explained by the First Circuit nearly thirty years ago, “[t]he prosecution, having called a witness, may then ‘take the wind out of …

Empty Jury Box in Nebraska

When There’s Only “Reasonable Doubt”

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Law students are taught that the ‘beyond a reasonable doubt’ standard is the bedrock of the justice system, one that is desirable because, as Blackstone declared, it is “better that ten guilty persons escape than that one innocent suffer.” But does that resonate with jurors? In other words, when a lawyer argues that “the prosecution can’t prove this person guilty beyond a reasonable doubt’ is the message not one of innocence but of a concession of probable or potential guilt? Does it smack of gamesmanship? And is it easy for lay persons, not in the halls of academe but in courts in cities where crime may be prevalent, to apply? These questions were brought to mind when reading a news account of a high profile murder trial with substantial evidence of guilt but also some reasons to doubt. As reported in the news media (not necessarily the source for a verbatim accounting of a courtroom proceeding), the defense lawyer’s opening emphasized that there was no physical evidence linking the accused to the killings, no gun …

Courtroom

The “Personal Knowledge” Rule: An Evidence Principle Worth Considering

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Rare is the case [excepting expert testimony] where a witness is not describing what s/he claims to have seen, heard, smelled, touched or tasted. Without that sensory connection to the item at issue, there would be no relevance; and most lawyers abstain from calling a witness to testify to what was behind a closed door or occurring in a far-away location. So what’s the “personal knowledge” fuss? Perhaps the answer comes, first, from acknowledging that for some reason the drafters of the Federal Rules [and corresponding state codes of evidence] felt the need to include it in addition to the foundational requirement that only relevant evidence be admitted. Indeed, the comment to the personal knowledge rule – Rule 602 – makes clear that it is merely “a specialized application of the provisions of Rule 104(b) on conditional relevancy.” Yet the Rule is there – so it must have some meaning. For the advocate, the reason for the ‘fuss’ derives directly from the existence of the rule – it is now a tool available to a …

Uber

Uber’s Algorithms Could Spot Crimes in Progress. But Do We Want Them To?

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The news out of Kalamazoo, Mich., this past weekend was grim: Authorities say Jason Brian Dalton, an Uber driver, shot and killed at least six people in different locations in the space of a few hours. Chillingly, Dalton apparently took several fares in between his alleged attacks. The case raises difficult questions about Uber’s responsibility toward passengers and the public. For example, could the company have prevented Dalton’s crimes? And if so, how should Uber and regulators respond? More stringent background checks are one option, but they can be discriminatory. They also quickly lead to diminishing returns, since they measure past behavior, and it is incredibly difficult, even based on current behavior, to predict who will become a mass shooter. There is one thing Uber probably could do using its existing technology and the massive amounts of data it already collects about its drivers and passengers: The company could spot crimes in progress by their drivers as they take place. But while that approach might be more effective than implementing more background checks (and more allegedly misleading “safety …

Mindfulness

Why Mindfulness is Increasingly Popular With Lawyers and Law Students

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Mindfulness is the practice of paying attention to what is happening in the present moment without judgment. It includes both a formal, usually seated, meditation practice and a more general approach to life. Mindfulness practitioners seek to bring their full attention to whatever they are doing throughout the day. Mindfulness is a wonderfully simple idea that many of us – particularly high achieving lawyers and law students – find very difficult to implement. Our minds tend to dwell on the past (“Did that interview/exam go well?”) or race to the future (“Will I pass the bar/get a job after graduation?”). Keeping our attention in the present can be a formidable challenge, yet studies show that being mindful increases our health, productivity, and happiness. The documented benefits of mindfulness range from reducing stress and anxiety, to improving focus and concentration, enhancing listening and communications skills, and increasing overall wellbeing. Jon Kabat-Zinn, one of the first people to promote mindfulness in the U.S., and others at the University of Massachusetts Medical School, have shown that mindfulness provides …

The Supreme Court of the United States

Justice Scalia’s Rule of Law Efforts

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Justice Scalia’s passing comes as a shock and is generating tributes across ideological lines. Indeed, whether you agreed with his opinions or not (and I was not a fan of his thinking on cases likeSosa or Bond), Justice Scalia’s opinions deserved to be read. Lines like “never-say-never jurisprudence” and “oh-so-close-to-relevant cases” are some of my personal favorites. Readers should feel free to add their own in the comment section. In the meantime, I wanted to pay tribute to a side of Justice Scalia that has garnered relatively little attention — his dedication to promoting the rule of law. For the last sixteen years, Temple Law has run a rule of law program in Beijing hosted at Tsinghua University’s School of Law. We offer an LLM to classes of 50 Chinese judges, prosecutors and lawyers, in an effort to acquaint them with the U.S. legal system and the rule of law more generally. As part of the program, the Chinese students visit Philadelphia for the summer, which includes a day trip to D.C. And nearly every year the highlight of that D.C. …

Swann Fountain in the Snow

Beware the Ides of February: Feeling Spectacular During the Nadir of Morale for the Year

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Yesterday, I made a spectacle of myself, and I am trying to decide if I need to teach my students to do the same. I didn’t set out to do it, but I was just so down. I always am this time of year, but this year seems worse. It’s been in the 20’s and 30’s the last few days, after a snowstorm blanketed the area a few weeks ago. I come to work in the dark or at daybreak and leaving in the dark. It feels like there is no life. It was time for some self-care. My students are experiencing the same blah feelings now, too. It is not uncommon in the legal and academic world for people to feel low this time of year. The holidays are done, and there is little else exciting on the horizon until graduation day for some and Memorial Day for others. Students and teachers are in a rut, repeating for the next several months the patterns into which they have fallen this year—1L’s know how to …

Passports

Stuck With Two Passports

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As it is wont to every few years, dual citizenship has become a contentious issue in contemporary politics. In the wake of the November 2015 attacks in Paris, French President François Hollande is pressing for a constitutional amendment that would allow convicted terrorists with dual nationality to be stripped of their French citizenship. Political elites on the French left have attacked the proposal as violating principles of equality, as it does not apply to citizens of only France; the move, they argue, would signify that dual nationals are somehow less French and that their French identity is more expendable than those who don’t have another citizenship. In December the U.S. Congress barred dual nationals of Iran, Syria, Iraq and Sudan from visa exemptions that they would otherwise enjoy as citizens of European Union nations and certain other countries. The measure — which a group of senators is now proposing to alter — also restricts the visa-free movement of individuals who have recently traveled to these countries, on the theory that it would prevent potential jihadists from re-entering the …

Microscope

When Must Lawyers Learn Science?

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How should judges evaluate lawyers’ alleged mishandling of forensic science evidence when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this; and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors for judges to weigh. In criminal cases, the importance of science (and understanding the limits of science) cannot be gainsaid. The statistics are clear: in a review of homicide cases in Cleveland, Ohio, the clearance rate was higher [63.1%] for cases with probative results — either matches or exclusions — than in cases without such evidence [56.3%], and the average sentence imposed was higher in the former category. Yet there is a confounding problem – the consumers of forensic evidence have little or no scientific training, either at the college level or ‘on the job.’ Perhaps 5% of lawyers [and judges] studied science, a number presented in research papers and confirmed repeatedly by polling attendees at legal education conferences. And the consequences are severe. The scientific illiteracy of lawyers was highlighted in …