LAWYER RESPONSIBILITY

From Cyberlaw

The Verdict

Closing Argument

• With the rules designed to create message within a larger rhetorical message space, it makes sense to focus on the closing argument.
• It is the point in the trial in which the larger turns responsibility for the case over to the jury. Up to that point, the narrative has been in the lawyer's hands. At the end, there should be a pass, a feeling of transmission of responsibility for the client's argument
• Jerry Spence – was someone who could take over a courtroom by his presence. An outrageous character. Came to class on the day he had lost the Miss Wyoming case. Was talking to the class about examining expert witnesses. Some people just take them strait on, and some people get em from the rear. Aren't you depressed about losing a 22 million dollar verdict? Eh, I got a partner who's a poker player. I'm the one that scares em, he's the one that settles. I'm his ace in the hole. Do you want to go to trial with Jerry Spence? That's how I make my money.
  • Had a stock closing argument. Indian boy and wise old Indian. One day the kid comes to the old man with his hands clasped and says, old man, I've got a bird in my hand – is it alive, or is it dead? The man realized that if he said it was dead, the kid would set the bird free into his face, and if he said it was alive, the kid would crush the bird. So Spence would say to the jury, ladies and gentlemen of the jury, what the wise man said to the boy, I say to you, the bird is in your hands.

The Verdict (movie)

• P was throwing up during the operation and swallowed it so that she choked. She's up against the big Catholic hospital. P atty has found the admitting nurse. If the patient has taken nourishment within one hour before the operation, then she's in deep trouble. Doctor testified that she hadn't eaten. The nurse said that she was forced to change the admitting sheet, and made a copy to protect herself. That was stricken, as was her testimony (rebuttal witness with no foundation).
• The original document rule. The idea of Best Evidence describes an idea, but not a rule. It's part of the responsibility of the lawyer to choose what evidence to offer towards your point. If you don’t want to offer what someone else considers the best evidence, no problem, as long as it's relevant. There's no reason for excluding it. On the other hand, where it comes to documents which are considered to have a powerful kind of persuasive value, above mere testimony. When we looked at past recollection recorded, remember that W had to read it rather than submitting the document.
• Imagine you're having a closing and you send out six copies to other parties, and leave the original on your desk. If you then execute those six copies, what's the original? Each one of the six copies, because those were the docs intended by the parties as the reduction of the contract, the executed document. If you then make copies of the one you singed, those are then duplicates.
• 1004: not trying to create a huge obstacle with this rule. Gives lots of situations in which you can use a copy
• Is this objection in the verdict well taken, that when she produces the copy, is it admissible?
  • The original of the record is the one that she writes the one on. She has altered that original by putting the nine on it. The hospital record now with the 9 on it, is the original of the altered hospital record. And she has a copy which is a duplicate of the original unaltered record. Therefore, no original document problem.
• Now we have the closing argument.
• "you are the law. Not some book, not some lawyers, not some marble statute… those are just symbols of our desire to be just. They are a prayer for justice… I believe there is justice in our hearts."
• Look at that as a rhetorical object. He starts down, hasn't the strength to raise his eyes. First thing he does is crumble his notes and throw them away. First he gathers them in, expressing doubt about truth, the relationship of truth to our feelings of strength and weakness, and then comes with his message. He wants action. 'Today, you are the law.' He closes by saying in effect, i believe in you.
• So that's the meta story of the closing argument. The ideal is to someway resonate with what you've opened with. A closing can be a time when you can articulate what your ambitions were, as stated at the outset, and offering some gathering together of the different threads that you started at the outset into something that feels coherent.
• In this class, we focused on context rather than object. This was in a context of what you do all day. So the class itself has a design of space and meta-space ; evidence and the context in which it operates, with the hope that as the message spins out in different threads, it can be brought back together again at the conclusion in a way that allows you to take a step along the path of connoisseurship, coming to see something you're interested in a context with others, and then seeing the whole in a way that lets you come back to the feeling at the outset. It's an objective that says, we not only want to learn evidence, but we understand that learning what evidence means is about learning what a trial is about. If you understand the story line, wont have any problem knowing what relevance is, or understanding when you want to object.

Reflection

• New means of constructing, aggregating and integrating comment are in our hands. The wiki, the question tool, etc. These expand the boundaries of classrooms and the fluidity of communication.
• When there's a dispute about the authenticity of two documents, which one is the right one, then you don’t want the judge resolving that dispute.
• Juries understand manipulation of the evidence at a point where the abuse becomes clear, and they will punish a party for it.
• What are the consequences to the trial process when it fails to produce an acceptable verdict?
  • The intention was to look at how we create and understand messages both as individuals and institutionally
  • When the audience watching the case knows much more than the jurors, and knows a lot about who the jurors are, then the verdict loses credibility
  • The system's credibility is constantly in issue. And the more the system loses credibility, the less powerful the law becomes.
• The flow of the class: evidence, truth, internet. Communication is getting so much easier that the idea of creating an acceptable verdict with a body that knows more than anyone else is getting increasingly difficult.
• But as we see the challenges building up, it make sense to look at the potential of the system.
• One problem is this huge money verdicts. What to do with punitive damages? Now that evidence is digitized, it would make sense to use that money to tell the story of the trial in a way that's much more effective than the way it's previously been told. That digital package is just waiting to be introduced to a document that could be required to be witnessed by every member of the corporation, so you have a chance of changing corporate behavior based on the message of the law that's embodied in the verdict. Using the instruments of the space to project the message of the law in a much more effective way to the people to whom it needs to be projected.
• Moving this ancient trial structure into a new environment is going to require changes.
• Isn't understanding a process of selection? In digital discovery, it becomes harder to select out what's important from background noise.
  • N: the one constant that runs through trials of history is that it's a story telling business. You might have a huge amount of stuff, but you are charged with pulling it together into a story line. The fact that there's a lot of it isn't necessarily the problem.