Today I clutched my backpack with my laptop to my chest and clumsily tried to cover us both with my sad tan umbrella, two broken prongs flopping in the wind. I was reminded of The Yellow Umbrella. My shoes were dark with the wet and my corduroys clung to my skin near my ankles. The back of my sweater was wet enough that when I retrieved it from locker after several hours of studies a damp odor greeted me. Some people have big umbrellas that cover their body and their precious laptop bags, others walk to class in sweatshirts, darkened from the rain. It seems that people are either prepared or don’t care. I found myself out of place, wanting to be dry, but without the proper equipment. I want a big rain poncho that will cover my backpack and myself and an umbrella that somehow protects me down to my feet. It’s not the getting wet that bothers me so much as the wetness staying with me throughout the way as a dampness to my very bones. Maybe I should keep a change of clothes and shoes at the law school. I already feel like Mr. Rogers as I change from my outdoor sweater to my indoor sweater each day.
Protection of my precious laptops worries me too. What if the rain becomes torrential and the wetness drips into my electronic note keeper? My reliance on my electronic friend should motivate me to back it up more often than I do. Last week, a fellow law student, through an unusual sequence of events had her laptop destroyed in the first few minutes of torts class. The person seated next to the law student had piping hot coffee that was inadvertently pushed upon her laptop by a third person rushing by to get to his seat. She rushed from the room, taking her laptop immediately to some sort of computer emergency repair place. They reported that it would cost less to get a new laptop then to try and repair the latte loving laptop. Thankfully, she, smarter than me, had just recently backed up all her files. Now I warily eye anybody that has an open drink near my laptop. I inch my computer away, and have been working on the etiquette of asking them to place their drink on the floor, where it will pose no risk.
10.31.2005
10.30.2005
The Time Change
Last night I had to do something I have not had to do in fourteen years. It was wonderful that it was this weekend, because Mike and I got an extra hour together. I think. Actually I still get confused about how the whole daylight saving time works. But what do you expect? I’ve been living in Indiana for fourteen years. Check this site out for some far reaching effects of daylight saving time. (it is saving . . . not savings).
Four weeks of classes + one week of thanksgiving = finals
Four weeks of classes + one week of thanksgiving = finals
10.24.2005
The competition
Today was fabulicious. Thanks to a bazillion hours reading this weekend, today I had my work done by 7:30pm instead of the normal 10:30pm. I was able to work out, do the dishes, and I am still going to bed before 10:00pm. Life is good.
We get our first midterm (contracts) back tomorrow. The grades were posted last Friday. I am such a hypocrite. All those years of downplaying grades, and there I stood with my numbered slip of paper, not only checking my grade but counting how many people did better than me and how close I was to the top. Shameful. I was even part of the chorus in the hallways, chanting “Who got the 97?” Law school tests are graded on a strict curve, which seems to mean 10% do very well, 10% are debating whether they made the right choice in coming to law school, and 80% feel average. John posted that actual stats in his blog It is a very competitive process. Over the last 3 weeks, four first year law students have dropped out. That’s 4 out of 152. You do the math. Theoretically, I am not competitive. But apparently, and quite shamefully, law school is bringing this out in me. I hereby pledge to not participate in the same shameful grade comparison behavior when I get my torts exam back.
P.S. this pledge is in no way influenced by my belief that I did worse in torts. :)
We get our first midterm (contracts) back tomorrow. The grades were posted last Friday. I am such a hypocrite. All those years of downplaying grades, and there I stood with my numbered slip of paper, not only checking my grade but counting how many people did better than me and how close I was to the top. Shameful. I was even part of the chorus in the hallways, chanting “Who got the 97?” Law school tests are graded on a strict curve, which seems to mean 10% do very well, 10% are debating whether they made the right choice in coming to law school, and 80% feel average. John posted that actual stats in his blog It is a very competitive process. Over the last 3 weeks, four first year law students have dropped out. That’s 4 out of 152. You do the math. Theoretically, I am not competitive. But apparently, and quite shamefully, law school is bringing this out in me. I hereby pledge to not participate in the same shameful grade comparison behavior when I get my torts exam back.
P.S. this pledge is in no way influenced by my belief that I did worse in torts. :)
10.23.2005
The Coons
Molly lifts her right leg and her tail stand points straight behind her. Her body trembles. Her eyes are fixated. Enough time passes that I wonder if she is tired of holding her leg up. And then it happens. SMACK. She slams into the glass door, full force. The raccoon outside gives a little laugh and gives her the finger. I am not kidding, that guy doesn’t even flinch anymore. He knows Molly can’t get to him. He stands within 12 inches of the door and just keeps on eating. My parents pretend to be distressed by the return of the coons, but I ask them why they have a buffet of bird and squirrel food set out for them. Every time I see the coons, I am reminded of Where the Red Fern Grows which was one of the last read alouds I did as a teacher. It is one of my all times favorites. I wonder if Molly could have been a coon dog and what tricks my little buffet eating coons would pull to get away from her. They sure have shown themselves to be smart enough to know that the big pane of glass will keep Molly from coming after them. I’m just waiting for them to knock on the door when the food supply is low or leave requests for different food varieties.
10.22.2005
Circles
Judge Henry Friendly: “Our principal task, in this diversity of citizenship case, is to determine what the New York courts would think the California courts would think on an issue about which neither has thought.”
In Civil Procedure, we are learning about what laws get applied in what circumstances. A case can be brought in federal court only under very specific instances. The biggest one we have focused on has been diversity. Basically no plaintiff and no defendant can be from the same place and the amount in controversy has to be more than $75,000. Seems simple, eh? But of course it is not. You have to jump through fifty hoops to figure out where plaintiffs and defendants are from and then you have to apply all this wacky stuff to figure out whether the amount in controversy can actually be more than $75,000 (Can you add plaintiff’s claims together? What if there is a liquidated damages clause, limiting the damages, etc). Well, if you finally figure out that the case belongs in federal diversity court, the question of choice of law comes up.
Basically laws are different from state to state, and federal laws are different from all of them. Basically, laws can arise from the US constitution (federal law), federal statutes (federal law) or federal court decisions (again, you guessed it. . . federal law). Or laws can arise from state constitutions, (state laws), state statutes (state laws), or state court decisions (yes, Virginia, those are, in fact state laws as well). So, and hold on because you might find this fascinating. Different states may have laws that conflict with one and other and different state laws may conflict with federal laws. Now, there are some complex rules about which laws trump other laws within states, and a few about that pesky US constitution trumping all. But, there are times, when the contradiction between the applicable laws is very real and courts have to be very clear about whose laws they are applying. “Choice of law” is a bit of a misnomer, because it really isn’t a choice most of the time.
We now return to our diversity claim. So we have a case that is being heard in federal court, but it got there because everybody is from different places and there is a LOT of money at stake, not because the claim has anything to do with federal law. So whose law applies? Federal or state? Well of course they’ve spent just about forever trying to figure that out, and the supreme court seems to weigh in fairly regularly with various opinions, which at times actually conflict with what they said several years ago on the same decision. This change is probably due in part to the changing judges on the Supreme Court. (This is the oh shit not Harriet Miers moment of the blog).
All right, so let’s suppose in this particular instance, the federal court must implement state law. So they have to interpret how that state would implement that state law. However, there are some strange instances where one state actually has to implement another state’s law. Let’s suppose now that that gets removed to federal court. Now the federal court has to interpret how the first state would interpret the law of the second state. And if neither state has ruled on the issue. . . well, that brings us full circle to the quote at the beginning of this blog. Which made me laugh out loud. Which made me decide to share. Which made me realize that you might not laugh out loud without all the pertinent boiled down background I have just provided. Which means that if you go back and read it now you might laugh out loud. Or you might not have a good sense of humor. Either way, isn’t your head hurting now?
In Civil Procedure, we are learning about what laws get applied in what circumstances. A case can be brought in federal court only under very specific instances. The biggest one we have focused on has been diversity. Basically no plaintiff and no defendant can be from the same place and the amount in controversy has to be more than $75,000. Seems simple, eh? But of course it is not. You have to jump through fifty hoops to figure out where plaintiffs and defendants are from and then you have to apply all this wacky stuff to figure out whether the amount in controversy can actually be more than $75,000 (Can you add plaintiff’s claims together? What if there is a liquidated damages clause, limiting the damages, etc). Well, if you finally figure out that the case belongs in federal diversity court, the question of choice of law comes up.
Basically laws are different from state to state, and federal laws are different from all of them. Basically, laws can arise from the US constitution (federal law), federal statutes (federal law) or federal court decisions (again, you guessed it. . . federal law). Or laws can arise from state constitutions, (state laws), state statutes (state laws), or state court decisions (yes, Virginia, those are, in fact state laws as well). So, and hold on because you might find this fascinating. Different states may have laws that conflict with one and other and different state laws may conflict with federal laws. Now, there are some complex rules about which laws trump other laws within states, and a few about that pesky US constitution trumping all. But, there are times, when the contradiction between the applicable laws is very real and courts have to be very clear about whose laws they are applying. “Choice of law” is a bit of a misnomer, because it really isn’t a choice most of the time.
We now return to our diversity claim. So we have a case that is being heard in federal court, but it got there because everybody is from different places and there is a LOT of money at stake, not because the claim has anything to do with federal law. So whose law applies? Federal or state? Well of course they’ve spent just about forever trying to figure that out, and the supreme court seems to weigh in fairly regularly with various opinions, which at times actually conflict with what they said several years ago on the same decision. This change is probably due in part to the changing judges on the Supreme Court. (This is the oh shit not Harriet Miers moment of the blog).
All right, so let’s suppose in this particular instance, the federal court must implement state law. So they have to interpret how that state would implement that state law. However, there are some strange instances where one state actually has to implement another state’s law. Let’s suppose now that that gets removed to federal court. Now the federal court has to interpret how the first state would interpret the law of the second state. And if neither state has ruled on the issue. . . well, that brings us full circle to the quote at the beginning of this blog. Which made me laugh out loud. Which made me decide to share. Which made me realize that you might not laugh out loud without all the pertinent boiled down background I have just provided. Which means that if you go back and read it now you might laugh out loud. Or you might not have a good sense of humor. Either way, isn’t your head hurting now?
10.21.2005
Window into Law Class
Well, midterms are done and I have shirked my week long attitude funk. It is Friday in the pm and I will shortly be joining other law students at the bowling alley. Did I say bowling alley? Yes I did. The last time I went bowling was with FRD when he was about four years old. Oh well.
I feel like I have a moment for a breath for the first time in a month. I have time to breathe and even managed to work out last night. It has been pressing in the back of my mind, how to begin blogging after such a long vacation, but I decided to just jump right back in. Anything to help me reconnect.
So, law school has become more nuanced. I found myself taking notes for 25 minutes on the details of res ipsa loquitur negligence. Res ipsa loquitur means that the things speaks for itself. Which makes me wonder why we had to speak of it for several days.
So here is a window into 25 minutes of my torts class. These are my true unadulterated notes, so take them as you will, and just imagine hours of this each day:
10/20/2005, 9:12 AM Hypo: car ran into ditch, hitting telephone pole.
Could you give the instruction?
No you can not give this instruction, because there was no evidence of excessive speed.
Second, the automobile left the street and ran into the ditch
And third, from the facts in evidence and the reasonable inferences there from, you find such occurrence was the direct result of defendant's negligence and
Fourth, as a direct result of such negligence plaintiff sustained damage. (include paragraph on negligence instruction)
Yes. It is the fact of the accident that creates the inference of the negligence. This is the missouri instruction for res ipsa loquitur. The same paragraph on negligence would be there.
Suppose we have testimony that a car was going really fast and then in ran into a ditch. Could we submit jury instruction number 1? Do we have enough evidence to warrant that instruction? We have direct evidence of excessive rate of speed. If the jury believes that witness, then they can believe all the elements. If they don't believe the witness then they decide in favor of the defendant. It would be rare for a court to say that direct testimony of a witness isn't enough to go to jury. If you wanted to, could you just give the second instruction? Plaintiff calls the witness, who testifies that the car was speeding. Can plaintiff then submit the res ipsa instruction? When do you use the regular negligence instruction and when do use the res ipsa instruction. Res ipsa is not a separate tort, it is just a way of proving the standard negligence action by circumstantial evidence. How do you decide when to submit it as a res ipsa case? In the other negligence cases, you fill in the blank with the untaken precaution. The evidence explains how this accident happened. So the plaintiff fills in the specific precaution that the defendant failed to take. Then the jury decides if it's true, and if true was it negligent, and if negligent were the injuries the direct result.
IN res ipsa, we don’t know what the defendant did. We just know that they must have made some sort of mistake, or else the accident wouldn't have happened. Why did the car leave the road and run into the ditch. Is it because of speed, failure to keep control, failure to look. Without a witness we don't know. The res ipsa case is essentially proof of negligence by circumstantial evidence. But it is proof of general negligence by circumstantial evidence. The specific negligence case is when we do know what the defendant did.
If you have specific evidence of excessive speed, you could have direct evidence or you could have circumstantial evidence of speed. Testimony or length of skid marks, damage to the vehicle. But whether you have direct or circumstantial evidence you could still submit that specific instruction.
10/20/2005, 9:28 AM hypo: What if the plaintiff has a witness saying the car was going 60 mph and the defendant has a witness saying he was only going 30 mph. Could the plaintiff submit the res ipsa jury instruction if they wanted to? Why would you want to? Because then even if the jury believed the defendant's evidence, they could find for negligence. Plaintiff may think it was because of speeding, but if they bring the res ipsa case, they will not lose on the basis of the different witness. Regardless of whether he was speeding, he was still negligence. Res Ipsa Loquitur, the accident speaks for itself.
If it's undisputed, you have to submit under specific jury instruction. In a case where the evidence is inconclusive, the plaintiff has a good argument that she should get to the jury under the res ipsa instruction. Courts are split on that question. Majority say if you have specific evidence of negligence, you have to submit that. Majority says that if you have specific evidence, but notwithstanding that, you still have a negligence case under res ipsa, you could submit that jury instruction. This is really about principles of evidence. Really boils down to relevance. DO I have relevant evidence that someone was negligent? How can you evaluate circumstantial evidence?
In the banana peel cases we are trying to determine if the banana peel was there long enough for someone to have the responsibility of cleaning it. Some cases said yes, some said no. This is circumstantial evidence. We were really talking about evidence. IN res ipsa, it is different than those cases, because those are cases where you are proving specific negligence by circumstantial evidence. Res ipsa loquitur is different. It is proof of general negligence by circumstantial evidence. Something must have gone wrong and that something is negligent.
Some jurisdictions, insist that you bring only specific instruction when you have specific evidence. Some jurisdictions let you elect between specific instruction and res ipsa instruction. Some jurisdictions might let you present both. 10/20/2005, 9:38 AM
I feel like I have a moment for a breath for the first time in a month. I have time to breathe and even managed to work out last night. It has been pressing in the back of my mind, how to begin blogging after such a long vacation, but I decided to just jump right back in. Anything to help me reconnect.
So, law school has become more nuanced. I found myself taking notes for 25 minutes on the details of res ipsa loquitur negligence. Res ipsa loquitur means that the things speaks for itself. Which makes me wonder why we had to speak of it for several days.
So here is a window into 25 minutes of my torts class. These are my true unadulterated notes, so take them as you will, and just imagine hours of this each day:
10/20/2005, 9:12 AM Hypo: car ran into ditch, hitting telephone pole.
Could you give the instruction?
- Your verdict must be for plaintiff if you believe first defendant drove at an excessive speed, second defendant was thereby negligent. Third as a direct result of such negligence plaintiff sustained damage. Negligence or negligent as used in this instruction refers to the failure to use the care that an ordinarily reasonable person would use under the same or similar circumstances.
No you can not give this instruction, because there was no evidence of excessive speed.
- Your verdict must be for plaintiff if you believe:
Second, the automobile left the street and ran into the ditch
And third, from the facts in evidence and the reasonable inferences there from, you find such occurrence was the direct result of defendant's negligence and
Fourth, as a direct result of such negligence plaintiff sustained damage. (include paragraph on negligence instruction)
Yes. It is the fact of the accident that creates the inference of the negligence. This is the missouri instruction for res ipsa loquitur. The same paragraph on negligence would be there.
Suppose we have testimony that a car was going really fast and then in ran into a ditch. Could we submit jury instruction number 1? Do we have enough evidence to warrant that instruction? We have direct evidence of excessive rate of speed. If the jury believes that witness, then they can believe all the elements. If they don't believe the witness then they decide in favor of the defendant. It would be rare for a court to say that direct testimony of a witness isn't enough to go to jury. If you wanted to, could you just give the second instruction? Plaintiff calls the witness, who testifies that the car was speeding. Can plaintiff then submit the res ipsa instruction? When do you use the regular negligence instruction and when do use the res ipsa instruction. Res ipsa is not a separate tort, it is just a way of proving the standard negligence action by circumstantial evidence. How do you decide when to submit it as a res ipsa case? In the other negligence cases, you fill in the blank with the untaken precaution. The evidence explains how this accident happened. So the plaintiff fills in the specific precaution that the defendant failed to take. Then the jury decides if it's true, and if true was it negligent, and if negligent were the injuries the direct result.
IN res ipsa, we don’t know what the defendant did. We just know that they must have made some sort of mistake, or else the accident wouldn't have happened. Why did the car leave the road and run into the ditch. Is it because of speed, failure to keep control, failure to look. Without a witness we don't know. The res ipsa case is essentially proof of negligence by circumstantial evidence. But it is proof of general negligence by circumstantial evidence. The specific negligence case is when we do know what the defendant did.
If you have specific evidence of excessive speed, you could have direct evidence or you could have circumstantial evidence of speed. Testimony or length of skid marks, damage to the vehicle. But whether you have direct or circumstantial evidence you could still submit that specific instruction.
10/20/2005, 9:28 AM hypo: What if the plaintiff has a witness saying the car was going 60 mph and the defendant has a witness saying he was only going 30 mph. Could the plaintiff submit the res ipsa jury instruction if they wanted to? Why would you want to? Because then even if the jury believed the defendant's evidence, they could find for negligence. Plaintiff may think it was because of speeding, but if they bring the res ipsa case, they will not lose on the basis of the different witness. Regardless of whether he was speeding, he was still negligence. Res Ipsa Loquitur, the accident speaks for itself.
If it's undisputed, you have to submit under specific jury instruction. In a case where the evidence is inconclusive, the plaintiff has a good argument that she should get to the jury under the res ipsa instruction. Courts are split on that question. Majority say if you have specific evidence of negligence, you have to submit that. Majority says that if you have specific evidence, but notwithstanding that, you still have a negligence case under res ipsa, you could submit that jury instruction. This is really about principles of evidence. Really boils down to relevance. DO I have relevant evidence that someone was negligent? How can you evaluate circumstantial evidence?
In the banana peel cases we are trying to determine if the banana peel was there long enough for someone to have the responsibility of cleaning it. Some cases said yes, some said no. This is circumstantial evidence. We were really talking about evidence. IN res ipsa, it is different than those cases, because those are cases where you are proving specific negligence by circumstantial evidence. Res ipsa loquitur is different. It is proof of general negligence by circumstantial evidence. Something must have gone wrong and that something is negligent.
Some jurisdictions, insist that you bring only specific instruction when you have specific evidence. Some jurisdictions let you elect between specific instruction and res ipsa instruction. Some jurisdictions might let you present both. 10/20/2005, 9:38 AM
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