Trish: korean perspective

Trish Jun

When I chose “Trials in Second Life” as one of two seminars last semester, I wasn’t sure what to expect. I knew why I was interested in the course – I’ve always been interested in courtroom trials, and this seemed like a fascinating way to approach trial advocacy. Also, I was wondering if Second Life lacked a much-needed judicial system that Professor Nesson somehow wanted to implement from the ground up. At the first class, I found – and came to totally agree – that this last hope was beyond the scope of the class. But as I listened to Professor Nesson’s own reasons for using Second Life in his Evidence class, I was hooked.

Looking back, I’m very glad I took the class. I learned a lot about current issues, including Burning Man, and other issues affecting the internet (net neutrality), and even a little bit about poker. But most of all, I really enjoyed being in a small, laid-back seminar setting with Professor Nesson, whose perpetual smiles and gentle guidance were a relief from the otherwise overwhelmingly hectic second semester of law school. And as much as this starts to sound a little bit too much like unnecessary flattery, I have to say that it’s impossible to avoid, because my entire experience was colored by the fact that Professor Nesson led our sessions, in his unobtrusive yet incredibly significant way.

Not that the seminar was perfect, because it wasn’t. Part of it was the downside to Professor Nesson’s laidback attitude. Law students, like most students, are not very good at setting their own deadlines and forcing themselves to actually accomplish something unless someone else is driving them. In the end, we did hold several trials, and each of them was a learning experience, in preparation, in improvisation, in evidentiary rules, in persuasion. And a little bit about how hard it is to break the mold of thinking about anything. For instance, the jury verdict in our Burning Man trial greatly frustrated me, partly because I felt like it was the result of people who were confused as to what “the court of public opinion” meant, and people who felt constrained by existing ideas about what a jury is supposed to do.

It wasn’t just the confusion of the Burning Man jury that frustrated me throughout the class. Part of it was the deeply-ingrained American prejudice against anything related to the internet. Of course the internet is a necessary and beneficial part of our lives now, but it still has a definite taint of “nerdiness” connected to it. And I complain because I am fully a nerd. I grew up in Korea, where the size of the country allowed a much more rapid spread of the internet, and a much quicker acceptance of the internet as a social tool: not just in maintaining friendships, but in creating new ones. This was facilitated by the fact that online meetings could easily move offline, so that prejudice against online friendships was necessarily much lower. Starcraft is obviously more than just a nerdy preoccupation in Korea, unlike the U.S. where video games still seem to be relegated to that realm. As for Second Life – well, even someone who tries very hard to believe that video games and online socializing and even online dating are not and should not be stigmatized, well… I couldn’t help feeling just a little bit of embarrassment at even creating a Second Life character.

Why is that? Well, in the U.S. it’s not really cool to do all of these things. Yes, people play online video games and Second Life is catching on, but not among “normal” people, they say. It’s only the social outcasts, the nerds, those who cannot get their entertainment “in real life.” And I think that’s a pity, because while I think that social interaction offline is of course important and fulfilling, there is also a special appeal in meeting people purely on the basis of interests (in Korea, a lot of forums sprang up when I was a middle schooler, and some of the friends I met at these online social clubs remain my friends – some offline, and a few online only), and broadening the base of people we can meet and befriend is not something that should be looked down upon as a desperate resort of the less graceful. But it still is. Maybe it has to do with being busy – everyone is always so busy here, and maybe anyone that has time to do these things is “clearly” neglecting their other social callings.

So I would propose a bit of a change in the format. Hopefully this doesn’t come across as presumptuous; it’s just the combination of a few thoughts I had as the seminar came to a close. Perhaps a couple of trials could be held in the first month or two that require less preparation and more impromptu thinking, such as one of the trials we held last semester. Perhaps one could be on an issue touching on the prominence of the internet, but some of the stigma attached to it. For instance, I was really taken by the idea of doing either the Second Life rape or the Second Life divorce case, and although a few of us met a couple of times, nothing concrete came out of it, and I think that’s a pity, although of course partially my fault as well.

Then I think two trials could be held with more time between to allow students to prepare. With four to five trials, virtually everyone would have the chance to be counsel for plaintiff/defense in at least one case, hopefully, and I think that’s a good experience. I would also like to see perhaps a trial of a different nature. I think the idea of the court of public opinion tries to draw the emphasis away from black letter law to the conscience of the jury, and I really enjoyed that part of the trials, although I always felt like it never quite worked, because nobody who was on the jury (partly because a lot of the jury was composed of students from OUR class) could quite put away their belief in the need to uphold “the law” as opposed to rule on the relative righteousness of an obviously lawless cause. But I would like to see this idea go further. I’d like to see a trial held, but with a completely different format. This is Second Life, this is obviously pretty far from the conservative courtroom, and while I recognize the merit of sticking to the American court system and how doing so adds to the legitimacy of our project, I wanted to see us try to change the actual structure of what was going on. How? Well, maybe I’m being too ambitious without enough actual thinking. Maybe a defendant should be allowed to give his own narrative without the constricting and controlling hand of the attorney. Maybe jurors should be allowed to question witnesses personally. Maybe there should be reenactments of incidents right there, in the courtroom. Maybe we could talk about the pros and cons of the American court system and how we might design a system if we were starting in a new country. Or online, in Second Life. And how there would be enforcement in such a system. But maybe this would not actually be good for the course in terms of PR. Maybe the course, because it is already so radical by nature, needs to stick to more conservative themes and conservative lessons about the benefits of holding trials online as part of education.

And perhaps the stricter deadlines that I proposed go against the entire spirit and charm of what a class with Charlie Nesson is about. Too much structure, too many heavy-handed deadlines… but these are things I thought might be considered for next time. I do think Professor Nesson also wanted to hold more trials, but I think it’s important to remember just how driven by deadlines we students are, procrastinating as we do. When there is no set deadline, there is no impetus to work on anything, and it just won’t get done, even by the students with the best of intentions.

I think, however, that some of the more unstructured elements of the class made it more endearing, as well as interesting and informative. For instance, the day we devoted to discussing music sharing was a great day for me, because it’s just one of those topics that people obviously have strong feelings on, and even in a little classroom full of ten people, there were some amazingly different ideas about right and wrong and ownership. I remember a few years ago when I was reading a forum in Korea where people were commenting on pirating computer video games. The utterly casual attitude of a poster who claimed that he was too poor to buy the game, and therefore entitled to pirate it, amazed me at the time. To be honest, I am not actually too poor to buy CDs or software or video games, and I have quite frequently pirated such items, sometimes justifying the pirating by saying I would not have bought them otherwise anyways, or could not due to supply issues (Korean music here) or that I was going to test the music and then buy the CDs (which I sometimes did, and sometimes didn’t), and sometimes not even justifying my actions. And I appreciate and love how easy it is for people to share such files. It’s like having a library, except I don’t have to go to a physical one to check out a book, nor do I have to wait when a book is already checked out. It’s near instantaneous, completely gratifying, and it’s terrible to think that I’d have to give that sort of power up. Listening to my classmates’ thoughts on the issue, ranging from complete support of online file sharing to complete disgust, was quite interesting, but I especially liked hearing Professor Nesson’s response to the telling question, why shouldn’t a university or a teacher encourage the upholding of property laws and lawful behavior? I really appreciated the insight into his position that ownership of such property is changing now, and that it is his position as an educator to not want to constrain his students or to dictate old and outdated law. How long will it take for the changes in copyright to actually be accepted, legally? I couldn’t say, but it will be interesting to see how artists and corporations will adapt. The existing unconstrained pirating of music and software do kind of hurt me, in a hypocritical way, as I merrily pirate away. And maybe, so long as things are so, it would be hard to establish a really effective and acceptable manner of paying for such items. I know iTunes is fairly successful, but I don’t use it, perhaps mainly because I need other outlets to find the songs I usually listen to (Korean songs), and therefore when I infrequently require an English song, I don’t immediately think of iTunes. Another pitfall of paying for e-items is my fear that such items are easily lost. Computer hard drives are quickly destroyed and storing any such items is still quite a bit of a pain, in my experience. Perhaps if such items were sold with a guarantee that one could download that item over and over from the central server as many times as needed would help, so that the server itself could serve as a sort of bank or storage device? Still, it all comes back to the fact that it is still so very easy to get things for free on the internet, and there isn’t much of a solution to that problem yet, despite the numerous closings of P2P programs such as Napster.

A class that makes me think about relevant issues now, and to connect things we talked about in Con Law and Property – well, I guess that’s why we take small seminars. But, I also came away with some other thoughts about small seminars. I’d forgotten how difficult it sometimes can be to participate in unstructured discussion. I even wondered at times if it is a cultural or gender thing. For me, it’s hard to jump into a conversation that is full of already-aggressively arguing people. I have a hard time cutting into other people’s words, and when I finally get a gap, other people certainly didn’t share the same compunctions. And of course, sometimes the subjects of our conversations were just so beyond my understanding (for instance, net neutrality… although the conversation was very informative!) that I couldn’t participate. In some ways, my experience almost made me think that I shouldn’t be taking seminars at all, at least not the ones that require discussion, because I felt like I wasn’t contributing the way I should have. I talked about this with other girls from my section, and interestingly enough a lot of them felt the same way about small seminar classes. Too much pressure to participate, and participating in anything remotely like public speaking, even small group discussions, apparently, can be intimidating for a lot of us.

I remember when we were about to do First Year Ames, and some of the people in my section said they were utterly terrified of the oral arguments. I was excited and thought it would be the best part of the process, and I wasn’t wrong. It was the best part of the process, and it was terrifying. But I came off exhilarated at the praise, and thought I’d even do 2L Ames to get that same sort of high. Eventually I did do 2L Ames, and it was one of the most educational, and ultimately disappointing experiences of law school for me. We worked hard and wrote some great briefs, and we practiced our orals. I remember the first time I stood in front of the friends I’d worked so hard with, and how nervous I was. Later they commented that I had been visibly trembling. That’s how poorly I performed that day. But each day I went, even on days when no one else wanted to go, just because I knew that for someone like me, practice was more important than anything. And by the time our actual oral arguments rolled around, I was confident and poised and comfortable with my role, and my performance showed that.

Interestingly enough, I fell flat on my face during the first day of Trial Advocacy Workshop. I’d love to blame it on my present cold, and blame my blanking out (several times!) in the middle of an oral argument on the cold medications I had drugged myself up with, but to be honest, I simply got overly nervous and couldn’t go through with it on my first try. It was embarrassing and disheartening, especially because I had hoped that I’d gotten something out of my experience with Ames last year. Unfortunately, it seems that any experience in public speaking is going to be an uphill battle with a lot of practicing, and in any case, a career requiring frequent public speaking just may be out of the question. Hopefully it’s too early for that sort of conclusion, however.

So what does it all mean? What is the value of taking a class on “Trials in Second Life”? For me, it was an exciting way to approach the topic of trial advocacy. I was actually drawn to the fact that I could speak through typing, instead of having to stand up in front of a crowd, and I do think that was a good thing for my fear of public speaking, although my current experience in TAW is also helpful in a different way. But going back to the theme of internet stigmatization, I have to say that even my own friends didn’t take my seminar seriously when they heard the title. I thought it was sad, because I’d been immediately excited when I read the description, and I think it was a good class to take. It wasn’t a conventional law class, and perhaps we didn’t accomplish as much as we might have hoped, but we held trials in a totally alien medium that had some built-in features that were very conducive to trials (automatic transcripts) and some fun additions like flying and dressing up. We had to practice improvising as witnesses, and conducting direct and cross examinations, and giving opening statements. It’s not quite as intense as the Trial Advocacy Workshop is proving to be, but it’s the same idea in a much less intimidating setting, and one that has a lot of promise. Second Life, and other online communities like it, really is a wonderful way to connect and interact with people who may not be in the same geographic area. Unfortunately, due to the prejudice against it (and the great fun poked at the name “Second Life”), there’s a lot for Professor Nesson to surmount, still. Even in our class, I remember the week after we installed, when one of our students talked about how they walked around Second Life, and could not understand why in the world they would spend time there, why they would go to bars in Second Life when they could be going to ones in real life, or working to earn Second Life $$ when they could be working to earn real life dollars. A lot of me agreed with that person, but at the same time I found it sad as just another part of the attitude towards anything online. It’s still not mainstream. It’ll take a good long while for it to become mainstream. But hopefully it’s not more mainstream in Korea simply because Korea is a land of nerds. Hopefully it’s more mainstream because that is where the future is headed, where communication tools as handy as Second Life are not just relegated to the realm of social freaks and weirdos.

But surmounting that prejudice seems like a tough job. One that I can already feel is difficult for Professor Nesson as he described some of the pressure from the administration to toughen up his course. Perhaps a different title would help. Simulated Trials? Whatever happens with the course, I hope it’ll keep some of the flavor it had. It was different, but in a good way. It was the type of class I envision happening in a different sort of law school. Perhaps Yale? I say that tongue-in-cheek, but it’s that sort of sitting around, discussing important issues, feeling comfortable taking a slower pace while learning different things through discussion that I appreciated.

thank you trish