Drafting a Contract IS Practicing Law

There has been much debate and speculation as to whether a lay-person may draw up a contract to enforce rights between themselves and another party. While using fill-in-the-blank, lawyer approved drafts of wills, trusts, leases, contracts, and other legal instruments is not considered practicing law, drawing a legal document from scratch or modifying an existing one is under the following authorities.

Under California law, the practice of law includes the preparation of contracts and other documents that secure legal rights, whether the matter is pending in court or not. Preparation of stipulations and releases constitutes the practice of law.
(In re Garcia (9th Cir.BAP 2005) 335 B.R. 717, 728.)

As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.
(People v. Merchants Protective Corp. (1922) 189 Cal. 531,535, quoting Eley v. Miller (1893) 7 Ind.App. 529 [citations omitted].)

For much of the history of this country, shambling rogues known as country lawyers became attorneys by “reading law,” with little to no formal training or schooling. There was no bar exam stopping anyone from practicing the law until the 20th century when lawyers figured out they needed to keep the poor out of power. The romantic notion of the country lawyer was a frontiersman, taking any case he could get and sticking up for the little guy. Famous country lawyers throughout history include Andrew Jackson, Abraham Lincoln, Clarence Darrow, and Robert H. Jackson, to name a few. These days, only seven states permit those who’ve read law to take the state bar exam for admission, while all other states require their lawyer-candidates to attend law school first. Getting popped for the unauthorized practice of law is a misdemeanor in California, possible jail time for up to a year.

So put your quill back in its inkwell and put your signet ring back upon your weathered finger. That document may not be enforceable and you’re going off to the pokey.

Via the Los Angeles County D.A. and the ABA.

Mucking up Causation with Identical Twins

Orlando Nembhard was charged with the February 12th shooting death of Sir Xavier Brooks, 19, outside a Phoenix nightclub called Leonardo’s Da Vincci Code. There were eyewitnesses claiming to have seen Orlando pull the gun and they had a description of the shooter which matched Orlando. Then the prosecution’s case went to hell when it was revealed that Orlando Nembhard has an identical twin brother, Brandon Nembhard, who was also at the nightclub the night of the shooting. Now with conflicting stories and suspicious behavior from Brandon, prosecutors are questioning whether they’ve charged the right man.

Barbara Jones, the victim’s grandmother, recently said in an interview, “They need to put them in a room and let them battle it out,” calling to light a pariah in evidence law — probabilistic evidence. Courts have never been comfortable with using statistics to convict defendants, permitting its use only in some employment law cases and tort cases. But with the stakes so high in a criminal murder case, the burden of proof of “beyond a reasonable doubt” cannot be quantified.

When studying the law of torts, students learn the case of Summers v. Tice: two hunters simultaneously shoot and injure a third hunter, though only one bullet causes the man’s injury. Because the guns are identical it is impossible to tell which gun fired the  round. Common law holds that the hunters will be held jointly and severally liable, each of them responsible for the entire amount of the man’s injuries. The idea is that the burden shifts to the negligent parties to prove that they were not the cause of the injury. The problem with the application of this case is 1) this is tort law (civil, not criminal) and 2) there was only one shooter. In the case in Phoenix, only one of the brothers allegedly shot the victim.

Judge Richard Posner has long been a proponent of the use of statistics in legal fact finding. In Posner’s Economic Analysis of Law (2007) he writes:

In the typical civil trial, there is no basis for supposing that Type I errors (false positives, such as convicting an innocent person, or in the civil context, erroneously finding the defendant liable) on average impose higher costs than Type II errors (false negatives, such as an erroneous acquittal or the denial of a meritorious claim). So it is enough in the usual civil case to justify a verdict for the plaintiff that the probability that his claim is meritorious exceeds, however slightly, the probability that it is not.

Why should a tie go to the defendant rather than to the plaintiff? The principle of diminishing marginal utility of income implies that the loss to the deserving plaintiff who loses is probably slightly smaller on average than the loss to the deserving defendant who loses…. In addition an erroneous judgment for the plaintiff imposes a cost that is avoided when the error goes the other way – the cost of collecting the judgment….

Type I errors in criminal cases involve additional cost because the cost of imprisonment is high, that costs is of course avoided when a guilty person is acquitted, though such an acquittal will reduce deterrence by reducing the probability of punishment for the crime. But the asymmetric effect of the cost of imprisonment on convictions and acquittals means that it probably takes several erroneous acquittals to impose a social cost equal to that of an erroneous conviction. This is one economic rationale for requiring proof beyond a reasonable doubt in a criminal as distinct from a civil case and another is the inherent advantage that the prosecution enjoys in a criminal case, compared to a private civil plaintiff…. In an inquisitorial system, where the search is conducted by a presumably disinterested judge, the need for a heavier burden of proof in a criminal than in a civil system is attenuated.

But an economic approach to causation has never been popular as few juries can sit comfortably with the idea that they have knowingly convicted an innocent person for the sake of easing the burden of proof. Because statistical probabilities will inevitably scoop up innocent people, their use in the criminal context is utterly impermissible. Perhaps it’s Posner’s economic theory of law that have kept him off the Supreme Court (or maybe it was that article characterized as Posner’s argument for selling children; why not verify that claim yourself here).

Via the NY Times (thanks Matt!).

TAL Takes on Patent Trolls

Hot on the heels of Lodsys threatening Apple’s app developers (and Apple threatening back), NPR’s All Things Considered Team tackles the latest scourge to take advantage of our outmoded legal system: patent trolls. Required listening for all app developers, IP attorneys, and law students who are thinking of jumping in bed with the devil.

As a bonus, Peter Detkin explains that when he popularized the term he was thinking of the mythical Norse monster, not the hunting term.

Via NPR.

The Rankings Game

A number of law schools hire their own graduates, some in hourly temp jobs that, as it turns out, coincide with the magical date. Last year, for instance, Georgetown Law sent an e-mail to alums who were “still seeking employment.” It announced three newly created jobs in admissions, paying $20 an hour. The jobs just happened to start on Feb. 1 and lasted six weeks.

While this came as a surprise to some (even some academics) it’s happening everywhere. Why? The rankings game. In 1997 U.S. News& World Reports unrolled a rankings system which measures all accredited law schools in the nation based upon a point system taking into account things like average entry GPA and LSAT, cost, number of students to faculty, percentage of class that graduates, and percentage of graduates working nine months after graduation.

For a long while, the rankings game didn’t really matter and no one paid much attention. Sure someone from Stanford is going to have more job opportunities than say some from the University of Toledo, but it only went so far. Now, everyone’s playing the rankings game. What does this mean for prospective law students? Pedigree matters. And it matters more than ever before.

These days, law schools are doing everything they can to buttress their numbers and that includes handing out temporary, part-time research positions to recent graduates in order to boost employment numbers. Perhaps what is more appropriate is to figure out ways to create more jobs or better yet to not play into the rankings game. What do the rankings say about the quality of education? Nothing. But somehow that’s where we’ve ended up.

From the NYTimes.

July 2010 California Bar Exam by the Numbers

Howard B. Miller, 85th President of the California Committee of Bar Examiners

Number of test takers: 8,562 (6,084 first-timers; 2,478 repeaters)

Number of passers: 4,690 (54.8% of all test takers)

Percentage of first-time takers who passed: 68%

Percentage of repeaters who passed: 22%

Mean scaled MBE score in California: 1,453

Mean scaled MBE score nationwide: 1,436

Via CalBar.

Art Immitates Law

In Yann Martel’s novel of magical realism The Life of Pi, the protagonist finds himself lost at sea in a raft. His only companion, a Bengal tiger named Richard Parker.

“Who is Richard Parker?” you ask.

In 1884, a ship sank off the Cape of Good Hope leaving three men and a boy trapped in a life raft. By the end of the two weeks things were looking desperate. The group had no food, save a sea turtle they caught and ate, and they were in imminent peril of death. One thing led to another and the boy was killed by two of the men and eaten by all three of the men. Four days later, they were rescued by a German merchant ship. The men were returned to Britain where they put forth the famous necessity defense, which failed, and sentenced to death. However, the Queen commuted their death sentence and everyone lived happily ever after.

The name of the boy cannibalized by the men — Richard Parker.

Regina v. Dudley and Stephens, 14 Q.B.D 273 (1884).

Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]