101 Things I Learned in Law School

101 Things I Learned in Law School

by Vibeke Norgaard Martin with Matthew Frederick

Vibeke Norgaard Martin is a lawyer who has practiced commercial litigation and civil rights law. She has also taught law at U.C. Berkeley. Here are some of her insights on how to think like a lawyer.

“Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known the full truth of a matter. Lawyers must be honest, but they do not have to be truthful… Counsel may not deliberately mislead the court, but has no obligation to tell the defendant’s whole story.”

“Intent can be essential; motive rarely is.  Motive is the reason someone has for committing a crime. It can help the prosecution identify and indict a defendant, but it doesn’t provide direct evidence of guilt. Personal financial difficulty, could suggest an individual had a motive to commit a robbery, but it provides, at best, only circumstantial evidence that he did so. Intent is the resolution to commit a crime. A defendant’s possession of tools for breaking a safe suggests an intent to commit burglary and theft, and may serve as direct evidence of his guilt.”

“In civil law nations, the main source of law is legislation, and courts are bound by statutes.” The civil law system is prevalent in Continental Europe and its former colonies. “Courts in common law nations are also generally bound by statutes, but more significantly they create new law—called common law or case law—through their decisions in specific cases. They also have the power to find a statute unconstitutional.” The common law system is prevalent English-speaking countries. “All U.S. states except Louisiana have a primary heritage in English law.”

“The U.S. legal system, as in most common law nations, is adversarial: two sides, typically represented by expert advocates, argue their positions to the court. A trial judge does not have power to investigate a case directly and usually questions witnesses only when there is a need to clarify confusing testimony. In an inquisitorial system, a judge or group of judges directly investigates a case and questions litigants. Civil law nations typically employ inquisitorial procedures.”

“Federal courts may only hear two types of cases: diversity cases, i.e. in which litigants have a diversity of citizenship (such as residents of different states) and potential damages exceed $75,000; federal question cases, such as those involving international treaties, the U.S. government, the U.S. Constitution, and federal statutes, and disputes between states.”

Have you ever wondered why  federal appeals court regions are called Circuits? “Federal judges once traveled the country on preset paths, or circuits, to hear cases. Abraham Lincoln rode the circuit in Illinois. Circuits later became permanent districts.”

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). In this case, Harry Tomkins was injured while walking beside the railroad tracks. “Pennsylvania law would have deemed Tompkins a trespasser and required that he show Erie had acted toward him with ‘wanton negligence’ in order to hold it liable. But Tompkins sued in federal court in New York, where Erie was incorporated… Tompkins successfully argued it should apply a more general federal standard that required he prove that Erie had acted with only ‘ordinary negligence’ … On its subsequent appeal to the U.S. Supreme Court, the decision was reversed, with the court stating that courts must apply the law of the state in which an incident occurs. The decision greatly limited forum shopping, in which a plaintiff files suit in the venue most favorable to its claims.”

Friendly witnesses are those called to give testimony in support of one’s own case. Hostile witnesses are called by the opposing party. An examining attorney may ask leading questions—those calling for yes/no responses—only of the opposing party’s witnesses. However, if a friendly witness is evasive or uncooperative, the examining attorney may request permission from the judge to treat the witness as hostile. If granted, the attorney may ask leading questions, allowing the attorney much tighter control of the examination.”

“Few judges will rule against a clear precedent. When relevant law favors your position, identify it and return to it again and again.” On a similar note, the author writes, “Let your citations argue for you. The strength of a legal argument lies in its grounding in past legal arguments that have been acknowledged in court rulings as sound. In legal writing, every sentence, other than those containing one’s own thoughts and making no inference from a past case, should be followed by a citation referencing a source.”

“Stop talking when you’ve made your point. Begin and end every argument or talking point with the thing you most want the listener to note or remember.”

The author explains two types of contract misunderstandings. “Unilateral mistake: One party is in error as to a contract’s terms or subject matter. The contract usually will be upheld by the court. Mutual mistake: Both parties are mistaken as to the meaning of a contract term…. Courts usually will find the contract was never formed and therefore will not enforce it.”

In a concrete example of mutual mistake, the author presents the Peerless case, in which Raffles and Wichelhaus signed a contract for the sale of 125 bales of cotton to be delivered via the British ship Peerless. “Unknown to both parties, there were two British ships of this name. Wichelhaus, the receiver expected shipment on the Peerless arriving in October, but it was carried on the other Peerless, which arrived in December. Wichelhaus refused to accept the delivery… As the parties did not agree to the same thing, there was no meeting of the minds, and therefore no binding contract.”

“Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)… Citizens have a duty of care and must refrain from acts that threaten the safety of others, but cannot be held liable for injurious acts if the consequences could not have been reasonably foreseenPalsgraf is often cited—incorrectly—for the role of proximate cause in injury cases… When there is no duty of care, causation does not matter.”

“Rationality is cool; passion is warm. Rationality provides logical justification for a position, while passion provides a human connection to it. Both are needed to advance an argument; an abundance of one will not compensate for a dearth of the other.”

“When the meaning of a statute is disputed, courts look to legislative intent… When the meaning of a contract term is disputed, courts generally look to what the parties intended when they entered into the contract. If a specific word is in dispute, courts usually presume the generally accepted meaning unless one party can prove that a narrower or more specialized meaning is its proper interpretation.”

“Invoking the Fifth Amendment in a criminal trial prevents self-incrimination. Invoking it in a civil trial may induce self-incrimination. Amendment V to the U.S. Constitution grants citizens accused of a crime the right to remain silent to avoid incriminating themselves. Witnesses in a civil trial may invoke this right only if a statement might implicate them in a crime for which prosecution is possible. The court and jury are usually entitled to make an adverse inference against a civil witness who does so.”

“According to the Innocence Project, more than three-fourths of convicts exonerated by DNA testing were found guilty on the basis of eyewitness testimony… Like an unprotected crime scene, one’s memory of a crime is a record that can be irrevocably altered by later events taking place in the same space… “Seven years after his second conviction, new lawyers for Cotton requested DNA review of the evidence. The only DNA sample left was a partial head of a sperm, but it was enough to prove conclusively that Poole, not Cotton, was the rapist. Richard Cotton was freed after serving 10.5 years.”

Based on television dramas, one might assume lawyers spend a lot of time in court. However, the author points out that “90% of both criminal and civil cases are resolved prior to trial by plea bargain or settlement.”

The book provides a good selection of concepts for prospective law students and others interested in how the legal system works. The title not only refers to the number of items presented, but is also a word play (intentional or not) on the introductory course number Law 101.

Martin, Vibeke Norgaard, and Matthew Frederick. 101 Things I Learned in Law School. New York: Grand Central Publishing, 2013. Buy from Amazon.com

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