Civil Procedure Thoughts

So I've been here for a little while now, and I've stuck my fingers into the pies of Legal Methods, Civil Procedure, Contracts, and of course Torts (hah!). I'll limit my comments in this post to preliminary thoughts on Civil Procedure, but I'll discuss other classes as larger issues arise in them.

Civil Procedure raises interesting moral questions, however. A lawyer has a clear responsibility to advocate for his client to the best of his ability, but he also has a moral responsibility for the truth to be known and for issues to be decided on their merits.

If you are trying a case and you have the opportunity to make a procedural argument to win the case, without letting the facts be heard, what is your responsibility? It's clear that the adversarial system of law requires action on that front. However, the principles of justice and fairness require that cases be decided on the facts.

I guess it leads to the question of what procedure represents. Is procedure a morally binding set of laws? Does Rule 11 hold the same moral weight as Murder 1? Or are they, rather, a set of rules intended to help facilitate the process of law?

I'll take the former position. Law's moral weight comes from its ability to impose an orderly and functioning society, which has an intrinsic moral value. It follows that anything that makes the law work takes some of that moral certitude with it. The upshot of this is that a lawyer has both a legal and a moral responsbility to act in accordance with the rules and procedures set forth in whatever system of law he's practicing in. Part of the facts that apply to the principles of justice and fairness are the ability of the attorneys to subscribe to, and use, the rules.

This doesn't mean that lawyers should circumvent the rules in the interests of clients, or bend, break, or ignore the spirit of those rules, but simply that part of being a good advocate is knowing the rules by which you are to argue. If the best argument wins, that should include the concept of the argument most within the scope of the rules.

As in all of these issues, there is a question of justice. Should you punish someone because their advocate is not as skilled at following the rules? Doesn't that disadvantage people who can't afford expensive lawyers, or teams of lawyers? There is always an argument that exceptions must be made in the interests of justice, even if those exceptions fly in the face of the written rules.

Comments, as always, appreciated!

Thoughts from the first week

The first week of Law School is winding down, and I'm headed to the courthouse in a few minutes to be sworn in. I'd say my first impression probably goes something like 'Whoa.'.

That aside, I'd prefer to use this forum to talk about the things I'm learning that are of interest to me, both from a lay and legal perspective.

We worked on a chain of cases called DeWeerth V. Baldinger, a 2nd Circuit Federal Court case focusing around the property rights to a Monet Painting. The real center of the decision was grouped around the interpretation of the New York statute of limitations for a replevin action (Which would be a suit to get back what's yours). The issue before the court was whether the statute had implicit in it a plaintiff's duty of due diligence to attempt to find the chattel.

The ultimate ruling of the case was that the plaintiff does in fact have such a duty, at least as it relates to art, and keeping in mind the plaintiffs ability to make the search and the type of property. The 2nd Circuit Appellate Court ruled that DeWeerth did in fact have such a duty and had failed to exercise it, so the action to recover the painting was not timely, and the statute of limitations (3 years from demand and refusal) did not apply.

That's all well and good, but it raised for me two predominant questions, one of which is more of a lay question and the other more legal.

The first is a general question about whether the rights of a good faith purchaser should be protected, or rather the rights of a true owner. As an example: Alec owns a widget worth $20,000. Bob steals the widget from Alec and sells it to Carl 'for value' of $20,000. Alec sues Carl demanding the widget be returned. Should Carl have to give it back? Is he just out his 20 grand, does he have a responsibility to determine before purchasing if the widget was stolen?

From a legal perspective, the perspective seems to be that the 'true owner' (Alec) has the vast majority of the rights to the chattel. The 'good faith purchaser' (Carl) is pretty much without rights; unless he can finagle some kind of legal solution, he's pretty much out of luck. Upon consideration, I'd have to say I agree with the typical perspective of the courts. There's tons of room for argument, though. I'd welcome comments!

The other thing I noticed was that when the 2nd Circuit Court got the case, they seemed to decide it a little cavalierly. For one thing, they never certified the question to the New York Court (asking the Supreme Court of New York what they would do), but more surprising than that is the fact that the judge in that case did not remand the case to trial.

It would seem to me pretty clear that the question 'did the plaintiff exercise due diligence in pursuing their stolen property' is a matter of fact, not of law, and outside the scope of decision that a judge can make. I assume I'll learn in the next year or so what the ramifications of that are. Just some thoughts to start out, I'd appreciate any comments.

P.S. The Mets have a less than .1 % chance of making the playoffs, according to coolstandings.com . =[

Financial Aid

A brief thought for those of you who read this blog (a small but hopefully growing number.) Our financial aid advisor, Brent Bailey, has experienced a relapse of the cancer that kept him out of commission this summer. I'd just like to ask that he stays in people's thoughts and prayers, if praying is your thing.

1st day of law school

Well, law school has begun, and it seems to me that in this day and age, it is prudent to have a vibrant web presence. I'm not sure if it's nessecary to have a blog in order to be known, get a job, and be successful, but I'm confident it can't hurt. I'm also certain that it will be a valuable forum in which to explore ideas and look back upon my growth.

If you begin to follow this blog, what you will find is a running tally of what I'm up to. Personal commentary will be more or less kept to a minimum, although it's possible periodic thoughts about politics or the Mets will slip in.

This blog is also for my family; it will give them a way to keep up on what's latest with me in the law school world.