The book that we are reading this summer has deep personal meaning for me. South Africa, Nelson Mandela, and the book’s author, Professor Ken Broun, all played crucial roles in my development as a lawyer.
In the summer of 1996, there was no more interesting place on Earth for an aspiring lawyer interested in constitutional law than South Africa, where new President Nelson Mandela was leading his nation toward a new, post-apartheid constitution. I had just finished my 1L year at Carolina law, and had decided to spend my summer in Cape Town, South Africa, studying international law and international business transactions at the University of the Western Cape.
My interest in South Africa had been sparked by world events, but the intellectual fire was stoked into a blaze by my exposure to Professor Broun, with whom I was going to work as a Research Assistant during my 2L year. That summer I studied law, but I also had amazing experiences.
Read More... (Studying Constitutional Law in South Africa: My Personal Experience)
| Posted by Richard E. Myers II on Mon. July 7, 2014 10:00 AM
Categories: Book Club
As I promised in my last post, I want to get back to the conflict of myths that underlies our roles as lawyers in both civil and criminal cases. The reality of trial practice in America is that very few cases actually proceed to trial. Most criminal cases are resolved by plea, and most civil cases settle. As I said earlier, for judges, trials and wide-ranging searches for the truth about some big issue tend to be antithetical. Pretrial devices such as interrogatories and requests for admission are supposed to make sure the trial is only about the issues that are disputed. “A Civil Action” provides us with an opportunity to consider how evidentiary systems and civil pleading rules are designed to narrow, not broaden, the focus of the finder of fact.
In the book, the author reminds us that as a Harvard Law School professor, Charles Nesson had spent many years pondering the nature of judicial proof — proof in the courtroom — and its relationship to the truth. His very famous blue bus example demonstrates the difficulty posed by statistical probability cases. In the example, an individual is injured in an accident caused by a bus, and the company that operates 80 percent of the buses on the route is the Blue Bus company. As a matter of statistics, it is more likely than not — the burden of proof in civil cases — that the injuries were caused by a driver for that company. But as the book notes, Nesson was certain that “[a] verdict based simply on the odds, … even very good odds, has no legal or moral force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.” By the time Nesson gets to court with the case as an attorney, however, he believes that half a billion dollars should or could change hands as a result of punitive damages, awarded on statistical likelihoods of cancer causation.
Read More... ("A Civil Action" - A Peek at the Rules of Evidence)
| Posted by Richard E. Myers II on Wed. July 31, 2013 10:00 AM
Categories: Book Club
My Jamaican grandfather used to say, “There are three sides to every argument; your side, my side and the truth.” And my mother used to ask my brothers and me, “What is this argument really about, because it’s not about this…” (whatever this happened to be, a slice of pizza, who got to sit closer to the television, etc.).
I’m happy to join this conversation about “A Civil Action.” In the book, there are multiple people with multiple visions of what the story was really about. There are people who were drinking contaminated well water. Many of them were made ill by something. There are the lawyers, who have very different visions of what that something was, and of the relative roles of plaintiff’s lawyers and defense lawyers, and of the import of the larger narrative. There are the competing government narratives – the engineer who certified the water safe, the mayor who was trying to avoid drought conditions and make water affordable, the EPA regulators who were trying to find out what happened, while avoiding being sucked into an acrimonious lawsuit. There are scientists and doctors trying very hard to account for water flow underground, and the timing of the leach of chemicals into wells, and the relative concentration of particular chemicals, and the carcinogenic effects of those chemicals. Some of them may have been acting in bad faith, others in good faith but misguided, others still may have been absolutely right. And there is our invisible narrator, who needs a hero for his story, and he has chosen plaintiff’s lawyer Jan Schlichtmann despite, or maybe because of, his flaws. Their varying roles were crucial lenses through which they viewed the facts of the case.
Read More... ("A Civil Action" and Multiple Truths)
| Posted by Richard E. Myers II on Thu. July 25, 2013 11:44 AM
Categories: Book Club