Summary judgment is the main topic in Civil Procedure this week, and we're talking about why requests for summary judgment usually come after discovery. Why is that, anyway?
Backing up for a second, a request for summary judgment is essentially a request for the judge to issue a judgment in your favor without a trial. It's appropriate when there are no issues of fact, and where the law is unambiguous. If the other party hasn't proved an essential element of their claim, and there are no facts about the matter for a jury to decide, a summary judgment is appropriate. Since the judge is the legal expert, they can make the call.
Parties usually don't request summary judgment until discovery is over because discovery is about discovering things. After discovery, the facts are established, and it's easier to know if there are issues of material fact that need to be sorted out at trial. If a motion for summary judgment is made prematurely, the other party can claim that there is a genuine factual issue, and that they haven't yet gotten around to deposing the proper witnesses. Maybe they're traveling, or there are other scheduling conflicts, but when they say what they have to say, you'll see that there are issues of fact that have to be decided. So a summary judgment isn't appropriate, because those witnesses have not been deposed.
What made it into my notes when we covered this in class?
Not "witnesses have been deposed," but "witnesses have not been disposed of."
Thursday, September 29, 2011
Wednesday, September 28, 2011
Art and Life
The back and forth dialogue between works of art and the art of life is something that I treasure. It's fascinating, unpredictable, and occasionally awe-inspiring. Here's how it played it out the weekend before last (and yes, this will be a little more serious in tone than my last few posts).
After a crazy extended late-night conversation about life, love, and sexuality, where I found myself getting much more honest and vulnerable than I have been in a while, a song came to mind the next morning. It was "England," by the National. After looping it on my iPod and in my head for a few hours, I was inspired to do two things.
First, I checked their tour schedule. They're coming here in December. I'll be there. Yes, the show's during the first week of finals week, but after the first exam, a night lost in reverie could be the very thing that keeps me going through the three remaining tests.
Second, the lines about angels led me to think about Wim Wenders' film Wings of Desire. I had known about the Nic Cage vehicle it inspired (City of Angels) for quite some time, but I didn't know about Wings until last summer, when I read Jeffrey Overstreet's Through A Screen Darkly as part of my preparation for a course on film that I had been asked to teach. After reading the text, I had to find the DVD, which arrived just in time (literally, the day before I got on the plane to go). Once I saw it, I knew that I would be working it into the course, as a devotional before a session on image, sound, and the use of color. When I was reminded of it last week, I knew that I would be working a viewing into the weekend ahead.
It's a beautiful film, very much a meditative piece on life, love, relationships, being human, and the city of Berlin, circa 1987. The angels in this film aren't your typical cinematic angels, adorned in haloes and white wings. Clad in dark overcoats, Bruno Ganz and Otto Sander move through Berlin, watching, listening, and hearing the hearts of the people of the city. As they hear the voices of the Ganz' Damiel in particular longs to engage in a way that his current role does not permit, and the director allows us to observe the observer as he begins to consider what would happen if he entered the picture.
Worthy of my time and yours.
After a crazy extended late-night conversation about life, love, and sexuality, where I found myself getting much more honest and vulnerable than I have been in a while, a song came to mind the next morning. It was "England," by the National. After looping it on my iPod and in my head for a few hours, I was inspired to do two things.
First, I checked their tour schedule. They're coming here in December. I'll be there. Yes, the show's during the first week of finals week, but after the first exam, a night lost in reverie could be the very thing that keeps me going through the three remaining tests.
Second, the lines about angels led me to think about Wim Wenders' film Wings of Desire. I had known about the Nic Cage vehicle it inspired (City of Angels) for quite some time, but I didn't know about Wings until last summer, when I read Jeffrey Overstreet's Through A Screen Darkly as part of my preparation for a course on film that I had been asked to teach. After reading the text, I had to find the DVD, which arrived just in time (literally, the day before I got on the plane to go). Once I saw it, I knew that I would be working it into the course, as a devotional before a session on image, sound, and the use of color. When I was reminded of it last week, I knew that I would be working a viewing into the weekend ahead.
It's a beautiful film, very much a meditative piece on life, love, relationships, being human, and the city of Berlin, circa 1987. The angels in this film aren't your typical cinematic angels, adorned in haloes and white wings. Clad in dark overcoats, Bruno Ganz and Otto Sander move through Berlin, watching, listening, and hearing the hearts of the people of the city. As they hear the voices of the Ganz' Damiel in particular longs to engage in a way that his current role does not permit, and the director allows us to observe the observer as he begins to consider what would happen if he entered the picture.
The film invites dialogue with Christian theology, everyday life, and with our conceptions of life on earth and the afterlife. Rather than assuming that life in the heavens is to be preferred, and that the spiritual is different from, and preferable to, the physical, Wenders turns those ideas on their heads. What if the angels actually envied us? What is it about being human that is so fascinating? Why not treasure, rather than shy away from, sensory experience? What is it about life on this earth that can't wait for heaven? And what would it be like to be like a child again? To recognize specific colors, taste your own blood, and hold a hot cup of coffee in your hands, all for the first time. Those are some of the enduring images that I take from the film, matched by the look of joy on the face of someone for whom all these things are new. The biblical texts that lingered in my mind are Psalm 8 and Hebrews 2, which place humans a little lower than the angels, yet crown them with glory and honor. The film brought those texts to life for me, and it reminded me that this life is one to be treasured.
Tuesday, September 27, 2011
When Helicopters Collide
Criminal liability is a tricky concept, especially when you get into consequences of criminal activity that defendants swear they did not foresee, and that nobody in their situation could have foreseen. In People v. Acosta 232 Cal. App. 3d 1375 (1991), the defendant led police on a 48-mile high speed chase through Orange County. When police helicopters got involved, two of them collided in midair, and three people died. Acosta was charged with, and convicted of, three counts of second-degree murder, in part because the chase was both the actual (if not for it, the accident wouldn't have happened) and proximate (it was a substantial factor) cause of the helicopter crash.
Acosta's appeal centered on the issue of whether a mid-air helicopter crash was something that he could have foreseen when the day began. Injuries to pedestrians or other automobile drivers? Yes. Injuries to helicopter pilots? No. The court disagreed with him, and held that while this sort of thing had never happened before, it wasn't a "highly extraordinary" result. His appeal was denied.
Why am I telling you all this? Well, I don't remember seeing this on the evening news, but it sure reminds me of the movies. Might've been in the background of this scene or this one.
I think that I may have just found a way to enjoy Michael Bay and Jerry Bruckheimer's movies again. My idea of a practice exam for Crim and/or Torts: watch The Rock, Con Air, or Gone in Sixty Seconds, and note every act with possible criminal and civil liability.
Acosta's appeal centered on the issue of whether a mid-air helicopter crash was something that he could have foreseen when the day began. Injuries to pedestrians or other automobile drivers? Yes. Injuries to helicopter pilots? No. The court disagreed with him, and held that while this sort of thing had never happened before, it wasn't a "highly extraordinary" result. His appeal was denied.
Why am I telling you all this? Well, I don't remember seeing this on the evening news, but it sure reminds me of the movies. Might've been in the background of this scene or this one.
I think that I may have just found a way to enjoy Michael Bay and Jerry Bruckheimer's movies again. My idea of a practice exam for Crim and/or Torts: watch The Rock, Con Air, or Gone in Sixty Seconds, and note every act with possible criminal and civil liability.
Monday, September 26, 2011
Danger: Falling Barrels
Coming up in Torts this week: the doctrine of res ipsa loquitur. That latin term means "the thing speaks for itself," and it has to do with the use of circumstantial evidence to prove negligence.
The classic formulation of the doctrine comes from Byrne v. Boadle, a 19th century British case (150 Eng. Rep. 299). The plaintiff was walking down a public street when a barrel of flour fell from a window, hit him, and injured him. How much does he have to prove, and how much evidence does he need to provide that the owner of the flour shop is responsible for this?
According to the judge, this is one of those cases where the thing does speak for itself. In the words of the Chief Baron, "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous."
So in a case like this, the defendant has to prove that the barrel fell for reasons other than negligence. The thing speaks for itself, at least unless compelling evidence is introduced to suggest otherwise. And it's the defendant's job to produce that evidence and provide an alternate cause.
What would qualify as an alternate cause? Well, it is possible that a group of performance artists took over the side of the building and decided to bring Donkey Kong to life. In the middle of the game, an errant barrel came down and struck the plaintiff as he passed by. What would proving this require? Well, I imagine that you'd start with testimony establishing that someone dressed like a giant ape was perched atop the building, and that a mustachioed plumber was seen hopping from fire escape to fire escape at the time in question.
While this probably wouldn't have happened back in the 1860s, it's at least conceivable today.
The classic formulation of the doctrine comes from Byrne v. Boadle, a 19th century British case (150 Eng. Rep. 299). The plaintiff was walking down a public street when a barrel of flour fell from a window, hit him, and injured him. How much does he have to prove, and how much evidence does he need to provide that the owner of the flour shop is responsible for this?
According to the judge, this is one of those cases where the thing does speak for itself. In the words of the Chief Baron, "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous."
So in a case like this, the defendant has to prove that the barrel fell for reasons other than negligence. The thing speaks for itself, at least unless compelling evidence is introduced to suggest otherwise. And it's the defendant's job to produce that evidence and provide an alternate cause.
What would qualify as an alternate cause? Well, it is possible that a group of performance artists took over the side of the building and decided to bring Donkey Kong to life. In the middle of the game, an errant barrel came down and struck the plaintiff as he passed by. What would proving this require? Well, I imagine that you'd start with testimony establishing that someone dressed like a giant ape was perched atop the building, and that a mustachioed plumber was seen hopping from fire escape to fire escape at the time in question.
While this probably wouldn't have happened back in the 1860s, it's at least conceivable today.
Saturday, September 24, 2011
What's Attempted Murder, Anyway?
A little bit more on attempted crimes, yesterday's crim law topic.
Our readings included State v. Smallwood, where the question at issue was whether someone who engaged in unprotected sex while knowingly HIV positive could be charged with attempted murder. In its analysis of circumstantial evidence, the court cited State v. Raines (326 Md. 582), where they reasoned that "under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body." Putting a gun through the window of a tractor-trailer and shooting: attempted murder.
What isn't attempted murder, then? Well, shooting someone in the fleshy part of the thigh isn't. In fact, it might even help them sell more records.
What else isn't? The charge on Omar Little's record (04:58 onwards, language NSFW). While evidence of intent is tricky, it's clear to Omar that he didn't intend to kill Mike-Mike. He shot him in the hind parts, not in a vital organ. It's worth noting that this is the only one of the charges against him that he objects to. Omar knows that that charge isn't legit (and that's before we even start to talk about intent - his aim was to take drugs, not to take life).
Our readings included State v. Smallwood, where the question at issue was whether someone who engaged in unprotected sex while knowingly HIV positive could be charged with attempted murder. In its analysis of circumstantial evidence, the court cited State v. Raines (326 Md. 582), where they reasoned that "under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body." Putting a gun through the window of a tractor-trailer and shooting: attempted murder.
What isn't attempted murder, then? Well, shooting someone in the fleshy part of the thigh isn't. In fact, it might even help them sell more records.
What else isn't? The charge on Omar Little's record (04:58 onwards, language NSFW). While evidence of intent is tricky, it's clear to Omar that he didn't intend to kill Mike-Mike. He shot him in the hind parts, not in a vital organ. It's worth noting that this is the only one of the charges against him that he objects to. Omar knows that that charge isn't legit (and that's before we even start to talk about intent - his aim was to take drugs, not to take life).
Repenting After The Fact
In Crim this week, we talked about what constitutes an attempted crime. What if someone goes to great lengths to plan a criminal act, has a change of heart, and doesn't go through with the deed? There are a few competing theories about this, and the question of what constitutes movement beyond preparation can spark classroom discussion.
What's the law? The model penal code recognizes the possibility of renunciation (5.03), although not all courts do. Where renunciation is allowed, it has to be voluntary and complete, that is, not compelled by the appearance of law enforcement officers on the scene, forcing you to postpone the attempt until a later date.
Well, what if you suspect that your wife is cheating on you with your boss, and your plan for revenge involves breaking into the company vault and stealing a large sum of cash? What if you go so far as to carry out that plan, only to learn that your suspicions were mistaken, and that the worst thing that your boss has done is simply having bad taste in statues? What do you do?
If you answered, "break in again, return the money, and hope that somehow the security tape showing your face will get erased," you've got an ending to your movie, but you don't have freedom from criminal liability. The abandonment defense doesn't apply to completed crimes. So as I understand it, breaking back in to return the money would expose you to another count of B&E. You'd be better off turning yourself in and hoping for leniency, or setting your feet on fire (some NSFW language).
What's the law? The model penal code recognizes the possibility of renunciation (5.03), although not all courts do. Where renunciation is allowed, it has to be voluntary and complete, that is, not compelled by the appearance of law enforcement officers on the scene, forcing you to postpone the attempt until a later date.
Well, what if you suspect that your wife is cheating on you with your boss, and your plan for revenge involves breaking into the company vault and stealing a large sum of cash? What if you go so far as to carry out that plan, only to learn that your suspicions were mistaken, and that the worst thing that your boss has done is simply having bad taste in statues? What do you do?
If you answered, "break in again, return the money, and hope that somehow the security tape showing your face will get erased," you've got an ending to your movie, but you don't have freedom from criminal liability. The abandonment defense doesn't apply to completed crimes. So as I understand it, breaking back in to return the money would expose you to another count of B&E. You'd be better off turning yourself in and hoping for leniency, or setting your feet on fire (some NSFW language).
Friday, September 23, 2011
Call Me Abed
Hi there,
When I discovered Community, it quickly became my favorite TV show. There are a number of reasons, but the biggest of them can be summed up in one word. Abed.
In a show so heavy with reference humor that it dedicated an entire episode to spoofing nearly every action movie imaginable, Abed is the undisputed king. The aspiring director connects the events of his life and the study group to television, the movies, and popular culture, his filter for viewing reality. For Abed, getting real with someone is staging a "My Dinner With Andre" birthday dinner so that he can engage in deep conversation without name-checking pop culture.
Why do I love Abed so much? Well, I guess that it's because in a sense, he's me.
From an early age, I've tended to think metaphorically and analogically, making conceptual leaps between the world on screen and the flesh-and-blood world that's also in front of me. Some people love it, others get exasperated by it, but this is how my mind works. It's the way I make connections between the multiple real worlds out there. That ranges from my firsthand experiences to things I've experienced vicariously through music, movies, TV, sports, and sports entertainment. It's why I'll skim Joe Posnanski's CNNSI columns but read every word of Bill Simmons' ESPN pieces (with the exception of his most-read column to date). It's why I can reference Game of Thrones and the Khmer Rouge in the same sermon, without feeling like either one is a flippant throw-away.
So far, it's worked out pretty well for me. Better than being clever, in fact. I made it through my twenties with a life story that I'm proud to be a part of, and a next chapter that intrigued me enough to sign on for three years of it: law school. I moved to Chicago about a month ago, and began 1L shortly after arriving.
At the outset, I was excited about the sort of work that I could do with a law degree, the opportunities that being here presented, and the idea of being in a learning environment, training my mind and developing new skills. There's something about developing my analytical skills and using them to sort through complex issues that really energizes me. However, I'll admit that I was worried that law school would choke the imagination out of me. I'm willing to make the sacrifices that come with the process of learning, but when it comes to the stuff that makes me me, I'm skeptical about the value of those sorts of trade-offs. It's not gaining the world but losing your soul, but it's somewhere on that spectrum.
So I've learned to stop worrying and love the pop culture junkie in me. A few weeks into classes, I've found that it's helped me stay interested in the required classes that I wouldn't have freely chosen. It even seems to be helping me make sense of contracts, torts, and criminal law. I make some connections between what we're talking about, my own experiences, and the general experiences that people growing up in the United States would have, but the vast majority of my processing of course material is filtered through popular culture.
So much so that the margin notes in my casebooks are something like "Distinguish from State v. O. Little, Wire S2 (hind parts not vital part of body)." [Note to self: remember to include a disclaimer about that when you sell those books at the end of the year]
Or I see a phrase like "wanton disregard for human life" and instantly remember the call from when LeBron dunked over KG. Last time I was in school, YouTube was just getting going. I've openly wondered how my student experience would have been different with it at full-speed. This blog is an experiment in that very topic.
As I make these connections, the prospect of writing these things up brings a huge smile to my face, and I hope that it'll do the same for everyone out there reading this.
As time goes on, I'll be filling this space with anecdotes about law school life, the mental images the case readings bring up in my mind, links to visual illustrations, and my musings about the whole "truth is stranger than fiction" maxim. In my opinion, the two are a whole lot closer than we like to give them credit for.
Thanks for reading, and welcome to my headspace.
When I discovered Community, it quickly became my favorite TV show. There are a number of reasons, but the biggest of them can be summed up in one word. Abed.
In a show so heavy with reference humor that it dedicated an entire episode to spoofing nearly every action movie imaginable, Abed is the undisputed king. The aspiring director connects the events of his life and the study group to television, the movies, and popular culture, his filter for viewing reality. For Abed, getting real with someone is staging a "My Dinner With Andre" birthday dinner so that he can engage in deep conversation without name-checking pop culture.
Why do I love Abed so much? Well, I guess that it's because in a sense, he's me.
From an early age, I've tended to think metaphorically and analogically, making conceptual leaps between the world on screen and the flesh-and-blood world that's also in front of me. Some people love it, others get exasperated by it, but this is how my mind works. It's the way I make connections between the multiple real worlds out there. That ranges from my firsthand experiences to things I've experienced vicariously through music, movies, TV, sports, and sports entertainment. It's why I'll skim Joe Posnanski's CNNSI columns but read every word of Bill Simmons' ESPN pieces (with the exception of his most-read column to date). It's why I can reference Game of Thrones and the Khmer Rouge in the same sermon, without feeling like either one is a flippant throw-away.
So far, it's worked out pretty well for me. Better than being clever, in fact. I made it through my twenties with a life story that I'm proud to be a part of, and a next chapter that intrigued me enough to sign on for three years of it: law school. I moved to Chicago about a month ago, and began 1L shortly after arriving.
At the outset, I was excited about the sort of work that I could do with a law degree, the opportunities that being here presented, and the idea of being in a learning environment, training my mind and developing new skills. There's something about developing my analytical skills and using them to sort through complex issues that really energizes me. However, I'll admit that I was worried that law school would choke the imagination out of me. I'm willing to make the sacrifices that come with the process of learning, but when it comes to the stuff that makes me me, I'm skeptical about the value of those sorts of trade-offs. It's not gaining the world but losing your soul, but it's somewhere on that spectrum.
So I've learned to stop worrying and love the pop culture junkie in me. A few weeks into classes, I've found that it's helped me stay interested in the required classes that I wouldn't have freely chosen. It even seems to be helping me make sense of contracts, torts, and criminal law. I make some connections between what we're talking about, my own experiences, and the general experiences that people growing up in the United States would have, but the vast majority of my processing of course material is filtered through popular culture.
So much so that the margin notes in my casebooks are something like "Distinguish from State v. O. Little, Wire S2 (hind parts not vital part of body)." [Note to self: remember to include a disclaimer about that when you sell those books at the end of the year]
Or I see a phrase like "wanton disregard for human life" and instantly remember the call from when LeBron dunked over KG. Last time I was in school, YouTube was just getting going. I've openly wondered how my student experience would have been different with it at full-speed. This blog is an experiment in that very topic.
As I make these connections, the prospect of writing these things up brings a huge smile to my face, and I hope that it'll do the same for everyone out there reading this.
As time goes on, I'll be filling this space with anecdotes about law school life, the mental images the case readings bring up in my mind, links to visual illustrations, and my musings about the whole "truth is stranger than fiction" maxim. In my opinion, the two are a whole lot closer than we like to give them credit for.
Thanks for reading, and welcome to my headspace.
Subscribe to:
Posts (Atom)