Lawyer/magician Ken Trombly shares this story from Government Executive concerning the "value added" that stage magicians and other entertainers can bring to conferences. Reporter Charles Clark notes that a recent NOAA conference had slated a presentation by a motivational speaker (from the description, probably a magician or similar performer), apparently after concerns arose over the propriety of such a presentation. Remember that mind reader at the GSA conference in Vegas? Yet stage magician and presenter Joe M. Turner says just because speakers are entertaining does not make them worthless. "'[T]here are plenty of people who have entertainment experience who also can provide serious, credible information to others. The return on investment is not really captured when you call a speaker a magician.'”
Hmm. Sort of like when you call a lawyer a magician?
Update: David DiSalvo weighs in on the NOAA "magical un-hiring" here for Forbes.
Reached by phone today — and who knew Dracula did interviews? – he told me he did this once 5 or 6 years ago, and it was a big hit, so he has made it a tradition this time of year. He’s argued motions like this, and tells me he once also appeared for a bench trial in the garb. Neither the judge nor defense counsel protested.
Well, who would? He'd bite you in the neck. As it turns out, this Dracula is a hero, helping people fight for their medical benefits. I thought, however, that the Count couldn't come out during the day. I've got it! Some physician has developed a cure! Or some psychiatrist has helped him overcome his tendency to shrink from sunlight.
Wonderful post over at Grasping For the Wind that features lawyers who have become fantasy and sf writers. While one of the questions seems to be "Should law students run---RUN---from law school or a legal career NOW?!" I cannot help thinking that law school and legal practice helped these lawyers become better writers, and/or that their creativity also makes/made them better lawyers. Consider about Scott Turow, who started as a writer who went to law school, and has continued to craft wonderful novels and David E. Kelley, who was an attorney who left practice to create iconic tv shows and characters.
I believe that everything in life becomes grist for your mill. Luck favors the prepared mind. You never know what of you learn might help you in future. Really. Clichéd as these statements seem, I don't think life is a lab experiment. You cannot run two or three of your lives at the same time (although THAT idea might make a great SF novel) and see what happens. I really do believe that people who don't get as much education as they can regret it later. Unless the idea of finishing law school once you have started it (or finishing anything once you've started it) makes you emotionally and/or physically ill, finish it. Walking across that stage (and passing the bar) shows that you can accomplish a goal, that you have transferable skills and training and that you can earn a living while you are planning your career at something else--say, writing that novel or setting up that mushroom museum. Or becoming a Great Magician.
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.
Professor Solan says in part:
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?
Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.
This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.
Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.
Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.
Gerald Uelmen of Santa Clara University Law School writes here about the importance of exhausting federal due process claims at trial by intoning "magic words." He says, "I frequently compare trial lawyers to wizards who must recite precise magical incantations before they wave their magic wands and attempt to make evidence disappear."
Of course, he is talking here about wizards like Merlin and Harry Potter, and I must point out that as far as I know, there are no such beings in the real world. What's also interesting is the assumption, common in popular culture, that these wizards must 1) pronounce magic words and 2) wave magic wands in order to obtain a particular result. I'd be interested to know what might happen if they left out one or the other. In law, we know. Generally speaking, the lawyer must 1) speak the words and 2) perform the act (for example, speak the words in the correct order or at the correct time or in the correct place). See also my prior post on getting exhibits admitted.
Secular magicians, by contrast, make objects disappear, but not permanently. When a lawyer "attempts to make evidence disappear," as in Professor Uelmen's examples, she wants it to disappear completely. If she gets the outcome she wants, it will no longer have any effect (or should have no effect) on the outcome of the trial. Lawyers and judges actually do have great powers, by their agreement, by our agreement, and through use of these magical words.
Chi Mgbako, Fordham University School of Law, has published Witchcraft Legal Aid in Africa as Fordham Law Legal Studies Research Paper No. 1763924 and in the International Legal Tribune, February 2011. Here is the abstract.
Accusations of witchcraft in Africa have gained increasing attention because of the severe impact they can have on the lives of those accused, including imprisonment, deprivation of property, banishment from villages and in some cases physical violence. The human-rights law program I direct recently partnered with an N.G.O. in Malawi to run a mobile legal-aid clinic focusing on witchcraft cases in two rural communities.
Download the paper from SSRN at the link. Also available here.
The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such, evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence.
This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modem cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.
As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence" and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.
Although the comparison between the witchcraft trials of 1692 and modem trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century." Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.
Download the full text of the Article from SSRN at the link.
Professor Moriarty discusses seventeenth century and modern "ways of knowing" and their probative value, suggesting that while they haven't changed since 1692, the assumptions we make about what we observe certainly has. She points out that scientists sometimes term "insights" what they use to fuel hypotheses (and then test by the scientific method). I note that others term these insights something else ("visions" perhaps) and don't test them at all.
Professor Moriarty's piece links up nicely, it seems to me, with what we seem to be learning about magic and neuroscience, and how magicians (and others) deceive us so easily. As Hercule Poirot, a devotee of justice, as opposed to prosecution, and a remarkable though fictional figure-outer of puzzles, it gives one furiously to think. His creator, like other good mystery writers, knew a lot about deception herself. But that's material for another post, about mystery writers and magic.
So, some lawyers are seeking a zen state. It happened at the Mindful Lawyer Conference in Berkeley, held at the UC, Berkeley campus (now, don't go saying "of course"), and I've seen a plethora of writing (well, a lot of posts anyway) about the event. Check here at Contemplative Law, here at idealawg, and here at Greedy Associates (topic: billable hours--well, would you expect anything less?)
Reader Frederick Brodie notes that the Arizona State Bar wants to rid itself of Charna Johnson, the lawyer who says she "channeled" her client's dead wife while representing another client. A disciplinary panel recommended a lesser sanction, suspension and probation instead of disbarment. I blogged this quite remarkable case earlier in the year. Mr. Brodie points out that the statements attributed to the wife raise the hearsay question, which in turn raises another issue. Could the statements be admissible in court? I'm certainly not an expert in the rules of evidence, but I'll give it a whirl (a very tiny whirl). Let's look at the Rules of Evidence, taking as a sample New Hampshire's rules (well, why not?)
What is the definition of "unavailable" for purposes of New Hampshire's rule 804? Being dead seems to qualify, but let's check the rule to be certain.
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant -
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his or her statement; or
(2) persists in refusing to testify concerning the subject matter of his or her statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his or her statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the witness' statement has been unable to procure the witness' attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the witness' attendance or testimony) by process or other reasonable means.
I'd say such a declarant fits under (4): "unable to present or to testify at the hearing because of death".
Would a proponent's statements about what the dead person has communicated after death fit within any of the exceptions? As given to a proponent, could they fit, say, within (5) or (6) below?
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in this position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(5) Statement of a deceased person. In actions, suits or proceedings by or against the representatives of deceased persons, including proceedings for the probate of wills, any statement of the deceased, whether oral or written, shall not be excluded as hearsay provided the Trial Judge shall first find as a fact that the statement was made by decedent, and that it was made in good faith and on decedent's personal knowledge.
(6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Well, maybe. I suppose one could argue that the proponent might say that deceased person might have more information than anyone else concerning the deceased person's will. But the trial judge still has to find that the statement was made by the deceased person. Aye, there's the rub. Under (6), then? Is the statement offered as evidence of a material fact? More probative than other evidence which the proponent can gather? Will justice be served? Again, we are back to the question of whether these spirit communications are trustworthy, and I'm not suggesting here that the proponent is lying about them, but whether a third party, hearing them, can discern whether they represent communications from the deceased or not. The proponent might believe in good faith that they are communications from the deceased. But is that good enough for the court? These communications are made after death and in the presence of no living witness, so that the safeguards that the rules of evidence are set up to create don't work. One could, I suppose, have a notary standing by at a seance in case a spirit came through with important information. One could compare them with statements made by the deceased before death: are they consistent with those statements (see b(1) or b(4), for example)? Or are they consistent with the statements of others on those topics?
Ultimately, I think we get into the determination of whether the statements are actually those of the deceased or those of the proponent, and the question of the probative value of the statements, both of which, it seems to me bear on b(6). "Name and address of the address" would seem to be a problem, though. Is the name of the decedent with the cemetery plot location enough? What if the person was cremated? Or if the person's body was never located? I could go on, but at this point, I yield to the evidence experts out there. I could find no U.S. cases discussing spirit communications as hearsay although I found a fair number of cases discussing the effect of belief in spiritualism on the validity of wills, for example. For more on that topic see Christopher Buccafusco's Spiritualism and Wills in the Age of Contract.