April 2006


One of the hardest things for me to wrap my mind around in the law is how to calculate damages for seemingly unquantifiable harms. The classic example, and the one that makes me squirmiest, is the calculation of the “value” of a human life that has been lost, which often comes up in the context of a wrongful death suit.

But I hadn’t even considered the complexities of the kinds of damages being sought by two Boston-area couples. Apparently, their second-grade children were read a story in school about two princes who fall in love. The parents are suing the school district, claiming invasion of privacy and freedom of religion by the school’s advancing of their gay-friendly “agenda.”

Putting aside the sort of dubious basis for this claim, let’s talk about the issue of damages. What good is a lawsuit without damages? No self-respecting lawsuit doesn’t seek at least a couple million these days, and this case appears to be no exception. The couples are seeking “compensatory and punitive damages.” Okay, the punitive damages thing, if a little silly, is at least easier to figure- whatever the jury feels would be enough to punish the school district- that’s how much they’ll get! But how on God’s green earth (sorry if that last phrase invaded your freedom of religion, by the way) could you possibly calculate the appropriate amount of compensatory damages for something like this? “My kid was forced to confront the diversity of families against my wishes! During story time! While sitting on the rug cross-legged, maybe even eating a snack! He’s been put off graham crackers forever after this! Damage! Trauma! That’s worth at least a million!”

When someone dies, I can see why you need to try to place a value on their life, as uncomfortable as that is, because their family may well need money to be able to carry on, and the thing is irreversable- someone has died. But when your kid gets a message that you don’t like? That’s grounds for a lawsuit seeking many many dollars? I think I must be missing the “litigous” gene. I hope that’s not going to be a problem for me in my future career.

SI.com is running a story under the headline “Curious Development.” What do you think it’s about?

No, it’s not about an ongoing contract saga between an NBA player and a team manager.
Nope, it’s not about a weird pitch that turned into a grand slam at a baseball came.
It’s not about a football player’s recovery from serious knee surgery, either.

No, this story is not actually about sports. Instead, it’s a story about the fact that the woman who has accused the Duke Lacrosse players of rape also filed a rape charge once before. In 1996. Ten years ago. A full decade. So long ago (and when she was a minor!) that it didn’t turn up when defense attorneys asked for records of any prior contacts with the police and so the dilligent reporters at the Associated Press had to go looking for it on their own.

A defense attorney for the players was quick to go on the record about this new development, pointing out that it raises “real issues” about her credibility and has requested a hearing “to determine if the complaining witness is even credible enough to provide reliable testimony” after this news has come to light. Riiiiiight. Because everyone knows you can’t get raped twice! It’s like lightning! So she must be lying! Or she has a long history of making unfounded rape claims! A decade apart! In totally different circumstances! So she must be making it up!

The woman, says the article, has disconnected her phone.

“Curious development.” Jesus. I feel ill.

Overheard between classes:

A 3L enrolled in a class that has been oft-cancelled this quarter and rescheduld for other times because the professor’s mother is dying and thus the professor has had to cancel several classes to be with her while she is, you know, dying:

“I mean, I’m paying for this class, and I have a conflict during the times when she’s rescheduling, and if she can’t get her act together to teach the class during the time it’s scheduled I think I should be getting some money back or something. This is fucking ridiculous. I don’t go to law school to not go to class.”

Nevermind that this treat of a 3L skips class on a semi-regular basis due to hangover. She deserves to have every class as scheduled, dammit! I’m so annoyed with these people right now.

Actual posting from actual email sent by Public Interest Careers Professional to the *students only* email list:

Idaho Legal Aid looking for someone with English and Spanish fluency and several years of legal experience in this area to work 10 hours a week counseling victims of domestic violence. Starting contract $26,000.”

Gee, thanks. I’m sure there are a lot of current students with several years of legal experience in dv work who are dying to move to Idaho to work 10 hours a week for very little money. You’re really meeting the needs of those students, career service office.

Last summer, I worked at a public service law office that specializes in public housing in Chicago. It was a great job, and I loved working on housing issues. (Also, I’m now able to give weirdly informative tours of the many disastrous public housing projects in Chicago, which is not actually something that most tourists are all that into when they come here for a visit. (Shocking, I know.) But hey, if you know anyone who wants the “south side/public housing special” tour, send them my way!) It was also the home of my first true law mentor, a woman in her late 30s who isjust about the coolest lawyer I have ever met who has spent her whole career working in public interest in Chicago and who also has a nice non-lawyer husband and a cool kid who she even manages to see every once in a while. Once I realized that I pretty much wanted to be her, I vowed to try to hear her thoughts as many things as possible, so I took her to lunch one day and asked her how she decided to do civil, not criminal, public service work.

“Well,” she said, “part of it was that I wanted to be involved in impact litigation, to make new law, and I saw a real opportunity to do that here.” I nodded. That made sense, this organization was known for its prominent role in the Chicago housing community.

“But mostly,” she said, “it was the photos. I took a criminal procedure class as a 2L and during one session the professor passed around a batch of really greusome crime scene photos and I had to excuse myself and leave the room. I couldn’t look at them. And I knew right then that I was destined for civil work. I guess I’m lucky, because that one class made the civil/criminal decision a really easy one for me. I think you can pretty much make the decision whether or not you can do criminal work when you see your first batch of awful crime scene photos.”

Well, yesterday, I saw my first batch of truly awful crime scene photos. I have been staffed on a new case at the clinic, in which we represent a female client (“Clienette”) who is charged with first degree murder in a brutal stabbing of another young woman. Both victim and Clienette were 17 at the time of the incident. We’ve had the case for 4 years, so my first job as the new kid on the case is to make my way through the files, trying to get up to speed on what’s happened so far.

There, while I was sorting through the many many duplicate copies of illegible police reports and dozens of not very helpful witness interview sheets and several error-riddled timelines, was a stack of photos, packaged in a cardboard envelope like the ones you’d get if you took your own snapshots for one hour development at Walgreens. And inside this normal-looking envelope were about 70 photos of the crime scene, including all the blood smears and droplets and the signs of strugle and shot after shot of this girl’s naked, slashed body, all in glossy 4×6. I don’t know what I was expecting, exactly- gritty black and white 8 X 10s, perhaps?- but I certainly wasn’t expecting an innocuous little envelope like you’d get at MotoFoto to yield such graphic images.

The good news, (I guess,) is that I didn’t have to excuse myself and leave the room. So I guess I know that I can do criminal work if that’s what I want to do. But man, it was hard to get those images of this young woman’s mutilated body out of my head as I tried to fall asleep last night.

This has been an embarassing week. More precisely, Thursday and Friday were mortifying.

I’m pretty used to feeling embarassed about just about everything I’ve done in the past (ages 11-16 are a pretty much a blur of remembered agony.) Plus, I suffer from drinker’s remorse in the worst way, (“did I really say that?” “was I tilting my head funny at the bar? Oh god, I was! I’m a weird head tilter!” “The cabbie totally knew I was drunk and was making fun of me in head head”), so I’m accustomed to trying to talk myself down from the ledge, usually with reminders that everyone else there was drunk, too, and thus unlikely to remember my relatively tame drunken antics. But this week, there was no alcohol involved, which is making the cringe-worthiness all the worse.

It all started with the damned local school council elections. Mayor Daley sent out a heartfelt plea, asking concerned Chicagoans to get involved in local schools, to step up and do their civic duty, and since I’m a sucker for civic duty speeches, and since I would be pretty much content to hang out at schools and hang out with kids for free anyway because it’s one of my favorite things except hanging out at schools without a purpose is bound to get you arrested for general sketchiness, I decided to run.

I dutifully filled out my candidate nomination forms and turned them in the day before they were due, and the nice lady at the school office told me I was the first person to turn in any forms and I felt all warm and fuzzy and gratified that I had answered the call to service. I would be a local school council member! I would guide a troubled high school (29% graduation rate; 74% chronic truancy rate, average ACT score a dismal 14) into less-troubled waters! I would Serve My Community!

You can guess how this turned out. I went to a candidate forum two weeks before the election and learned that there were TEN CANDIDATES for the two community representative positions, several of whom noted pointedly in thier candidate speeches that the black community would be better served by black local school council reps. (This high school is officially designated racially isolated African American, with less than 1% of the student body non-black). Things were not looking good for the Pseudostoops in ’06 campaign.

Three votes. That’s how many votes a do-gooder white girl law student gets in a local school council election. Three. And they PUBLISH these results on a BIG BULLETIN BOARD with the number of votes that everyone got written in RED INK. That’s me! Pseudostoops! Recipient of three votes! One from me and two that were probably a mistake, as my name was right below that of the winner! Haha!

Embarassing, right? Yeah, that’s a fricking walk in the park compared to what happened on Thursday at school, where I spent half an hour making fun of a perfectly nice 1L to a friend of mine, mocking her fakey-nice attitude and her seeming eagerness to identify the “coolest” person in any room and try to become friends with them, and there may have even been a snide comment about her “town bicycle” reputation (note to self: stop being a bad feminist.) Of course I learned, four hours later, that the friend to whom I was talking about this perfectly nice 1L is DATING HER. Of course he is! Haha! I’ll just set about extricating my foot from my mouth now!

And then Oscar, who we are puppysitting again, ate a bunch of daffodils and puked them up on my friend Beignet in the car on the way home.

I might never be able to show my face in public again.

So, if you were a psychologist hired by the state to determine whether a fourteen year old with a history of special ed and emotional disturbance had the capacity to waive his Miranda rights before he made a self-incriminating ststement, which of the following sources of information would you consider in making your evaluation:

a) the results of cognitive ability tests that you conducted yourself
b) the results of cognitive ability tests given by a licensed professional during the context of an IEP meeting one year ago
c) interviews with the child during which you ask open-ended questions about the night of the questioning to see what the child understood
d) an interview with the same detective who took the statement, who thinks that “yeah, the kid knew what he was doing when he waived Miranda.”

If you answered “d,” congratulations! You’ve been hired by the county juvenile clinic!

I’m sorry, but isn’t this a little redundant? Doesn’t the detective who conducted the interview have to, by definition, believe that the kid could waive Miranda? Because it would be supremely odd if he’d continued the interview if he didn’t think the kid had the capacity to waive Miranda. But hey, if he’s the easiest guy to get on the phone, and it means you don’t have to do any tests for yourself- go for it!

Today I’ve spent five hours (five!) watching videotaped statements given by Client’s Codefendent in our murder case. Codefendent didn’t know he was being videotaped (side note: does someone with more legal knowledge than me want to explain how this is okay?), but he was, and there are five long hours of footage of him in a room, maybe nine by ten, sitting in a cheap plastic chair at a cheap pastic table alternately being questioned by Interviewer and being left alone in the room to think about what got him here in the first place. There are long stretches where he is sitting in the interview room with his Guardian and they’re talking, the way you’d talk with your mom at the dining room table after she picked you up from a party where kids got caught drinking, a mix of scolding and soothing and fatigue, and things are said, incriminating things, and the kid still doesn’t know he’s on videotape and Guardian seems to believe that if he just gets it out of his system and tells the truth he’ll be going home tonight except that he’s been incarcerated since this statement was taken, which is now eight months and counting.

After about four hours in the freezing interview room, where Codefendent and Guardian are sitting bundled in yellow plastic blankets that Interviewer gave them that look like something you’d use on a mountainside during a medical emergency, Codefendent dozes off because he’s been sitting there for four hours and it’s been eight hours since he ate anything or used the bathroom and it’s two in the morning, and at this point Interviewer comes in and asks Guardian if she’d prefer to sit in the hall where it is warmer, and so she does. 10 minutes later Codefendent wakes up and Guardian is gone and he’s alone in the room and it’s freezing and they’ve taken his shoelaces and his belt and his sweatshirt and he’s sitting there in his undershirt and it’s two in the morning and all of a sudden it’s too much for him and he starts to cry, quietly at first and then huge, racking sobs, anguished sobs, and he cries for fifteen minutes still not knowing he’s on videotape, until he starts to quiet down again and then at that moment Interviewer, who’s been watching the whole time, who purposely invited Guardian into the hallway when Codefendent was asleep, walks in and asks:

“So, you finally ready to stop lying and tell me the truth?”

So, today I became the mean old lady who wanders around the park, scaring children.

This afternoon, John and I went to the park near our building to play tennis. The park has two very decrepit tennis courts featuring large cracks and crevices, including one caused by the root of a huge oak tree, running through the courts. The lines are faded and barely discernible. There is a third court, but for as long as we’ve been going there, it’s been missing what tennis experts refer to as “the net.” In short, this park is the perfect spot for two crappy tennis players to go on a lovely Saturday afternoon.

One of the courts at this park has a wall about 10 feet behind the baseline where one could practice groundstrokes if one so chose. When we got to the park, a couple (who appeared to be even worse at tennis than we are, if that’s possible,) was playing on that court, so we took the other one. About 20 minutes later, two little girls, maybe eight or nine years old, wandered over to the courts. They briefly considered playing on the court with no net, but then decided instead that they’d rather practice hitting against the wall, and they nonchalantly went over and installed themselves approximately 18 inches behind the poor woman playing on that side of the court and started hitting against the wall.

Let me say, gently, that these little girls were novice tennis players. Their shots kept missing and they had to run onto the court (where the other couple was still gamely trying to continue their match) to retrieve their balls. The couple playing on that court started shooting the girls nasty looks and speaking loudly to each other about “manners” and “being rude.”

The girls either didn’t get it or didn’t listen, and after about 10 minutes, the couple gave up and decided to pack it in. Before they were even off the court, the girls had moved in and started playing on the court. The couple walked away muttering and shaking their heads.

I thought this was unfair. It was unfair that the adult couple had to contend with little girls with no manners on their court, sure, but what seemed even more unfair was that this couple just got all annoyed, made snide comments, and left. The way I saw it, these girls needed to be told, kindly, that they were doing something rude. You can’t expect kids to know all the ins and outs of adult ettiquite without being told, right? So the next time one of our balls went over their way, I decided to talk to them.

Pseudo: Hey ladies. I just wanted to let you know that it can be a little hard to play on the court when someone is hitting against the wall, because it gets crowded. I think it got a little hard for thos other people to continue their match once you started hitting against the wall. It’s not a big deal this time, because those people had been playing for a while and I think they were almost done anyway, but next time, it would be polite to ask if they mind if you hit against the wall before you start.
Little girl: (terrified) o-okay.
Pseudo: Have fun!
Little girl: (turns and runs away.)

The little girls had a conference at the net for several minutes after this little intervention, casting furtive glances in my direction. When, several minutes later, one of their balls rolled over towards us, they conferred for a full 4 minutes before one of them worked up the courage to come over and retrieve it. In short, I scared them to death.

I also embarassed the living crap out of John. He couldn’t believe that I would “discipline someone else’s children.” This is interesting to me. Had he not said anything, it would not have even occured to me that some might object to what I did. These girls did something rude, I assumed they didn’t realize their mistake, and I told them in a very nice way that they should probably do it differently in the future. (Side note: there were no adults accompanying them, so I wasn’t stepping on Mom’s toes or anything here.) This kind of thing happened to me all the time when I was growing up- I still remember some of those times when my friends and I did something we were pretty sure was not okay, but we wanted to test it and, sure enough, an adult would tell us that it wasn’t okay and we would stop. This is how children learn, right? They push a boundary and an adult gently but firmly reminds them just where the boundary is? Or has teaching just ruined me forever by making me think that I can extend the concept of “teachable moments” to the children of strangers?

I stand by my decision to intervene, but it had a totally unexpected consequence: it kind of sucks to be the scary old lady. As a teacher, you’re expected to give little lessons like this, but you have repeated contact with the kid, and you can make it up to them by showing a little respect and teaching lessons that don’t suck. These girls from the park, though, will probably turn and run in the opposite direction the next time they see me coming. Scary old lady. Sheesh. Next thing you know, I’ll own half a dozen cats. And wear a lot of purple.

Okay, the posting, it is out of control today, and I can accept that, but this is so fucking funny I had to share it. Unless you are Jack and have never done yoga, in which case this will probably make no sense.

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