The Art of Lawyering

[Ganymede]

@Auspice said in The Art of Lawyering:

I think my initial take on it is I feel weird about her doing so before she's finished school / passed the bar. She's doing this show to free innocent people with an incomplete understanding of the law, so isn't there the risk of her doing more harm than good for these people?

Lots of people in the Innocence Project are volunteers without the ability to practice law. That does not mean they are not valuable. Kim isn't dumb, despite her persona, so I don't think she will do anything that might jeopardize her ability to practice law in the future.

[saosmash]

Yeah I don't care that much about what Kardashians do or don't do but if it contributes towards helping with innocent people incarcerated I'm down for whatever.

[Auspice]

Please don't think I'm opposed to helping the wrongly incarcerated.

It was more a question as to whether she could potentially do harm by making a spectacle (TV show) of it without a complete education.

[Derp]

@Auspice

My thoughts -- yes and no.

You would be amazed at what law school doesn't teach you, so 'incomplete education' is really like -- everyone with a J.D. when it comes time to actually practice / pass the bar, and law students will let you know it. Readily.

It could lead to public perceptions shifting a bit negative, but her actual knowledge of matters, depth-wise, isn't really that much of a factor when you look at the reality of how it works. Imposter syndrome is really high in the legal field for a reason. The law is huge, and poorly codified, which is why West and its competitors make money hand over fist charging for what is essentially a low-grade google of legal texts.

But more attention on actual facts can do a world of good, even if she's doing it selfishly.

[Ganymede]

@Auspice said in The Art of Lawyering:

Please don't think I'm opposed to helping the wrongly incarcerated.

It was more a question as to whether she could potentially do harm by making a spectacle (TV show) of it without a complete education.

I never thought you were making light of innocents.

She could do a lot of harm, yes. But she could also do a lot of good. She has the resources and connections to make a huge difference, if done correctly. She didn’t need a law degree to do this, but if it means that she can represent these folks in court so be it.

Think about what she could do representing an innocent person in court. And having it televised.

[Jeshin]

I looked up Lawyers got this, so necro thread.

Soda company poisons the water table somewhere.

Bob the water manager was "in charge" of this aspect of the company.

Can Bob be sued for damages? or is this a case of doing my job, I didn't know and knock it up to the company level?

Is Soda company sued for damages just because they have bigger pockets?

[Ganymede]

@Jeshin said in The Art of Lawyering:

Can Bob be sued for damages? or is this a case of doing my job, I didn't know and knock it up to the company level?

Yes. There is no Nuremberg defense here.

Is Soda company sued for damages just because they have bigger pockets?

Yes. The Company may be held liable under the doctrine of respondeat superior, also known as vicarious liability.

[Jeshin]

@Ganymede

Thanks I wasn't sure if individuals could be held responsible in civil suits of that nature and they just never got targeted because company had more $$$.

The debate was related to qualified immunity seems weird! and I'm like it is weird! but then I tried to liken the Bob example to sometimes you go after the dept/city and not the individual so etc etc. Laymen people mangling law.

[Derp]

@Jeshin said in The Art of Lawyering:

I looked up Lawyers got this, so necro thread.

Soda company poisons the water table somewhere.

Bob the water manager was "in charge" of this aspect of the company.

Can Bob be sued for damages? or is this a case of doing my job, I didn't know and knock it up to the company level?

Is Soda company sued for damages just because they have bigger pockets?

I mean, based on that, I would agree with @Ganymede for the most part, but I would also add (and IANAL, remember, I just work for them and do the research):

"It depends" is pretty much always the answer to these questions. Were water manager's actions intentional, or at least reckless? Did the company present him with sufficient information in order to ensure the safety of the water? Were all items properly marked as to show their contents?

Those types of cases are always really dependent on nitty gritty facts, so you need the nitty gritty facts in order to make a proper determination (or at least, projection). Without knowing all the contours of how it went down and who knew about about it and when, it's hard to say, because there are defenses that can be made based on a whole slew of information.

They can both be sued, but whether you're successful or not is an entirely different story.

[Ganymede]

@Jeshin said in The Art of Lawyering:

The debate was related to qualified immunity seems weird! and I'm like it is weird! but then I tried to liken the Bob example to sometimes you go after the dept/city and not the individual so etc etc. Laymen people mangling law.

"Qualified immunity" is a whole other beast. Your analogy doesn't fit into it very neatly for innumerable reasons, not the least of which being that qualified immunity for the deprivation of civil rights by law enforcement follows a different set of elements than qualified immunity for just about every other tort out there. And that's part of the problem with qualified immunity for excessive force complaints.

I can probably spend the entire night explaining why proposals from requiring police officers to get malpractice insurance to statutorily removing qualified immunity won't do shit, but if the short discussion on capitalism else-thread is any indication no one wants to listen to folks with some expertise on the subject. (My law firm handles excessive force complaints.)

[Jeshin]

@Ganymede

If you want to send me the cliff notes in DMs I mean. It's a discussion I'm having with someone as an intellectual exercise where we assume we don't know wtf we're talking about but discussion and research is how you learn!

[Ganymede]

Here's a quick run-down.

"Qualified immunity" for excessive force complaints requires a plaintiff to prove two things: (1) that their constitutional rights were violated; and (2) that the defendant officer clearly violated established law. Element 2 is the difficult thing to prove because criminal law is evolving so fast that it even the best practitioners couldn't say with reasonable certainty that any act "clearly violates" established law.

"Qualified immunity" for other sort of torts requires a plaintiff to demonstrate that the defendant acted: (1) with hatred or ill-will; or (2) reckless disregard for the plaintiff's rights which had a great probability of causing substantial harm. This is the "malice" standard used for many torts.

So, what's the difference? Well, the first variety of qualified immunity doesn't inquire into an officer's intent, but it does require a plaintiff to make an argument based on existing law. In practice, a plaintiff's attorney has to allege facts to establish a "clear violation of established law," which is a lot more difficult that you'd expect. This is especially true if you are alleging a new set of facts that has never been seen by a court. After all, how can you violated "established law" if you have a scenario that is a matter of first impression? The second variety seems to be a lot harder because you have to establish the officer's mindset at the time of the illegal act. In practice, it is actually easier because a court can infer from allegations what a mindset might be.

Suppose we look at the Floyd situation, and we discover that there has been no cases before Washington courts where an officer knelt on the neck of an accused before. How can there be a clear violation of establish law? You'd have to find an analogous situation in Washington that somehow made it to a judgment. Given that many police departments settle this cases prior to judgment, it's unlikely that you'll find any such case. See the problem?

But take that same situation, state the known facts, and then argue that the officer acted "with reckless disregard for Floyd's life" by kneeling on his neck, "which has a great probability of doing substantial harm." There's almost no way to argue that this would not be the case, presuming the allegations to be true. The plaintiff would survive the motion to dismiss, which practically cuts out the immunity defense.

[Jeshin]

@Ganymede

One question, I promise.

In a transcript of a podcast: https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf

It states that a judge can waive qualified immunity to let a case proceed to trial, but that the defense can still invoke it as something the prosecution has to overcome?

Is this why so many cases that reach jury trial regarding police (or government law enforcement) end up with a not-guilty verdict? Because qualified immunity is brought up during the trial and the jury ends up going well legally speaking we guess this is 'reasonable'?

[Ganymede]

@Jeshin said in The Art of Lawyering:

It states that a judge can waive qualified immunity to let a case proceed to trial, but that the defense can still invoke it as something the prosecution has to overcome?

In a civil case, the court does not "waive" qualified immunity. That's not an accurate statement. If the defense raises qualified immunity in a motion to dismiss, a court may decide that there are sufficient facts to warrant overruling the motion. A defense can raise it again after discovery in a summary judgment motion, arguing that there are no issues of material fact related to the defense. and that the defense is entitled to judgment as a matter of law. And at trial, at the close of a plaintiff's case, the defense can again raise the defense and argue that the plaintiff failed to present evidence sufficient to overcome it. The point is a defense never goes away, and is always available.

Is this why so many cases that reach jury trial regarding police (or government law enforcement) end up with a not-guilty verdict? Because qualified immunity is brought up during the trial and the jury ends up going well legally speaking we guess this is 'reasonable'?

Second, in a civil context, defendants are liable, not "guilty." Most of these cases were decided without going to trial, as far as I can tell. To answer your question, though, in cases where there is a trial, my inkling is that such cases involved facts which were borderline, so juries leaned towards favoring law enforcement. In my experience, excessive force cases rarely make it to juries, and are usually decided by motion or through settlement.

[Groth]

@Ganymede said in The Art of Lawyering:

Second, in a civil context, defendants are liable, not "guilty." Most of these cases were decided without going to trial, as far as I can tell. To answer your question, though, in cases where there is a trial, my inkling is that such cases involved facts which were borderline, so juries leaned towards favoring law enforcement. In my experience, excessive force cases rarely make it to juries, and are usually decided by motion or through settlement.

Can a borderline case even make it to a jury? The way that qualified immunity seems to work in practice is that law enforcement can only be held liable if there exists a previous court case where under almost the exact same circumstances law enforcement was held liable.

It's my understanding that if the circumstances are novel, like say the police officer deciding to remove your eye with a spoon, then even though the use of force is objectively crazy, many US courts would rule that QI applies because there's no settled case law on police removing your organs with a spoon.

For instance take Mullenix v Luna where the supreme court ruled that shooting a motorist to death didn't have an established precedent. Scalia even argued it wasn't deadly force.

What makes Mullenix particularly annoying to me is that even if he had hit the engine instead of the driver, it probably wouldn't have worked:
https://www.youtube.com/watch?v=TcUO4y9d1dg

The engine is the single most durable thing in a car.

[Ganymede]

@Groth said in The Art of Lawyering:

Can a borderline case even make it to a jury?

Yes.

Suppose there is a clear precedent that requires three operative facts. Suppose there is sufficient evidence to establish all three, but there is evidence to the contrary. This is what a jury shall decide: what the facts are.

And if they fit the mold, the case is made.

[Derp]

@Ganymede said in The Art of Lawyering:

Suppose there is a clear precedent that requires three operative facts. Suppose there is sufficient evidence to establish all three, but there is evidence to the contrary. This is what a jury shall decide: what the facts are.
And if they fit the mold, the case is made.

At which point it will winds its way up through the various courts of appeals until it gets to the Supreme Court, who will probably overturn it. Despite paying lip service to the idea that a set of facts doesn't need to match exactly a prior set in a decision, they will overturn decisions for petty differences, and do. All the time.

So it can make it to a jury but fat lot of good that will do you in the end, really.