Yes, It's Possible for a Dead Person to Win at Trial by Combat

I'm writing a paper on trial by combat in my spare time because these days, what else is there to do? I've written about the subject before, both on this blog and in an article I coauthored with my former law school classmate, Raj Shah. Why I have such an enduring interest in the subject is unclear. Perhaps after days spent working on various civil litigation matters, reading accounts of cases where people physically battle each other to resolve their disputes makes my job seem calm by comparison.

I found one particularly quirky story of trial by combat in the short article, His Body Shall be Brought to the Lists, by W. Croft Dickinson. Dickinson notes that, in cases of trial by battle that involve "a cause touching life and limb," the party responding to the accusation of the crime (the "defender," or in a more modern sense, the "Respondent"), is obliged to appear for the battle within two weeks. If the Respondent dies within that time, his pledges (people who swore that he would appear) would bring his corpse to the area where the battle was to take place (the "lists.") After all, they had sworn an oath that they would ensure that the Respondent would appear and would make sure that their oath was fulfilled, even if the Respondent had died.

Dickinson then describes what happens when a dead body is brought to the lists. From "The Lawe of Armes Within Listis," Dickinson provides the following quoted account--with very little clarification or explanation:

It mycht fal sa that the appellour deis before the day; his borowis, quilk ar bound wndir gret panis, cummis and enteris his ded cors within the barreris to freith thaim of thair borowgang. The defendour, lik as he fand borowis, is enterit within [the] barreris; he findis the provour ded, and he can nocht sla a slane man; and he him self wnpurgit of the crime quhilk that the provour, that thair is deid, put upoun him. Than has he na recover bot to cast this ded cors our the barreris or the day be gane, or ellis the frendis of the ded man] may allege that the luffand man had tynt his actioun and ask him to be justifeit thairfor. Bot it mycht be allegit that [[an] assise war metast than; or ellis a campione for the appellour that is ded to mak gud it that he tuk apon hand, gif the juge and partii will admytt him.

Bot as to that purpose I haf herd that that samyn impediment com anys to preiff and [lege in] the kynrik of spanye, that quhen the ded man wes laid within barreris he wes sa hevy that the liffand man was nocht of mycht to put this ded cors out of [the] barreris, and al the day wes in hand thairwith quhill the son wes gane doun. And than the frendis of the ded man come before the Juge and askit the law of armes, and allegit that the peremptour day wes passit and thair frend had wonnyn his accioun; for he had nothir said the word ne wes not put out of the feld thocht he wes ded. And sua be the law of armes the ded man wan the quyk, and he demanyt as culpable of that actioun; and this wald the law of armes. And sum sais that as this quyk man wald haf castin the ded man our the barreris he fell bakwart on his bak and the ded man on his brest, and cud nocht avoid him of him quhill the day wes passit. And sua be the law he wes jugit in the crime and justifeit hairfore.

To my knowledge, nobody has taken up the task of translating this account from the old Scottish vernacular that was in vogue at the time (around the 1400s). While I am sure there are people better qualified than me to do this, I have a paper to write and I'm not going to wait around for them to get to this, so here is my attempt at a translation:

It might happen that the appellour ["Appellant" -- the party making the accusation of the crime, and responding to a demand for trial by battle] dies before the day; in which case his pledges, who are bound under great pains, come and enter his corpse within the lists [the area where the fight was held], to free them of their responsibility.  The defendour ["Respondent" -- the party accused of the crime, who demands trial by battle], along with his pledges, enters within [the] lists; he finds the Appellant dead, and he cannot slay a slain main; and he himself is unabsolved of the crime which that the appellant; who is there dead, put upon him.  At this point, he has no remedy but to cast the corpse out of the lists before the day is over [before sunset], or else the friends of the dead [man] may allege that the accused man is guilty of his alleged actions and ask him to be adjudicated guilty as a result.  But it might be alleged that that the respondent has met the challenge, as the Appellant's champion is already dead.

But as to that purpose, I have heard that same impediment came to proof in the country of Spain, and when the dead man was laid within the lists he was so heavy that the living man was not strong enough to put his corpse out of [the] lists, and was there all day until the sun went down.  And then the friends of the dead man came before the judge and requested the law of arms, alleging that the day had passed and their friend had won his action; for he had neither said the word ["recreant," or "craven" -- spoken to surrender the battle] nor was he put out of the field though he was dead.  And so, by the law of arms, the dead man defeated the accused, who was found culpable of his alleged conduct; and this was the law of arms.  And some say that as this accused man attempted to cast this dead man over the barriers, he fell backwards on his back, and the dead man was on his breast, and he could not free himself before the day had ended.  And so, by the law, he was judged in the crime and therefore adjudicated guilty.

Some notes on terminology: the "Appellant," is the party making a private accusation of a crime against another party--typically known as an appeal of felony or appeal of murder (in cases where involving allegations of murder).  This is not to be confused with a situation where a party appeals from some lower action (although in some cases, an appeal of felony or murder could follow after a party had been acquitted or pardoned of a crime). And while the term "trial by battle" may be more in line with language used in historic accounts of the practice, I use "trial by combat," as this is the more commonly used phrase today (thanks, Game of Thrones).

My reading of the text differs from the scenario Dickinson discusses at the start of his article.  Dickinson contemplates a situation where a party accused of a crime (the defender, or--in the terminology I chose, the "Respondent") dies before the trial by combat against the accuser, (aka the "Appellant," "appelour," or "provour") takes place. But the text discusses what happens if the Appellant dies before the battle--and the conundrum faced by the accused who finds himself unable to battle against a dead person.  The solution, apparently, is for the living to "put forth" the dead man from the lists, that is, toss him out of the ring--a seemingly simple task.

Not so for the poor fellow described in the story, who tried to throw his opponent's corpse out of the lists, but instead ended up being pinned under the body.  As he was unable to free himself before sunset, he was adjudicated to have lost, as the dead man had not been thrown out of the lists, nor had the dead man verbally signaled that he had surrendered.

As I am writing this, people all over the world are going through tough times. Many of us are stuck inside, some of us have lost our jobs or suffered reductions in pay, and all of us are stressed over the state of the economy and the health of the nation. Perhaps we can all take comfort in the fact that, at the very least, we haven't been found guilty of a crime because we failed to win at trial by combat against a dead person.

(NOTE: Translating old Scottish texts is not my day job, and I welcome any comments on words or phrases I messed up. The last sentence of the first paragraph was unclear, and my version is largely a guess based on context.  I translated "justifeit" as "adjudicated guilty," based on the context in which the term was used, and based on similar usage of the term in other sources.  I translated "borrowgang" as "responsibility," although it appears that this is a technical term that may be more akin to "suretyship."  I could not find a translation for "luffand," which I translated as "accused," based on the context.  The same is true for "wnpurgit," which received a whopping zero results on Google and which I translated as "unabsolved," based partly on the context and based on the similarity of part of the word to "purged.")

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.

Defendant Victorious After 90-Day Jaywalking Trial

The South China Morning Post reports on the conclusion of a 90-day (!) trial for jaywalking in Hong Kong:

A woman charged with jaywalking has been acquitted at the end of a 21-month-long trial which was slammed by a city judge for bringing Hong Kong’s courts into disrepute.

Kamala Thapa denied one count of negligently endangering her own safety, after she was hit by a taxi while crossing Tai Tam Road outside the American Club in Stanley on April 25, 2016.

Her trial at Eastern Court over a traffic summons, which would have cost her a fine of no more than HK$500 (US$64) if convicted, had sparked three judicial reviews, one civil claim and what appeared to be the city’s first arrest warrant issued to a lawyer by a court.

The reason for the disproportionate length of the trial appears to be the result of "extravagant" proceedings in the jaywalking case before the magistrate, along with multiple instances where these proceedings were reviewed by higher-level judges. Here is an example of one some of those instances:

Her trial was punctuated by a dramatic episode. Presiding deputy special magistrate Ho Lai-ming – in what appeared to be a first for the city’s courts – issued an arrest warrant for Thapa’s lawyer Kelvin Leung after comments he made which she deemed offensive. Leung denied the accusations. 

After subsequently changing her barrister, Thapa’s trial hit another wall when a defence witness she had called decided to withdraw halfway through giving evidence. 

But Ho ordered the defence to fulfil its duty by calling the witness back, a decision that prompted Thapa and her lawyers, including Leung, to lodge a judicial challenge.

The South China Morning Post reports that the arrest warrant for Leung has not yet been executed.

After the protracted trial, Thapa prevailed. Both Thapa and the prosecutor unsurprisingly claim that they have incurred substantial fees, and the South China Morning Post reports that Thapa has filed a civil claim against the magistrate judge "for damages in excess of HK$1.7 million [over US$216,000] for loss of liberty and injured feelings."

How to Get Away With Unethical Lawyering, Season 1, Episode 3

At the time I am writing this post, I have seen all of Seasons One and Two of How to Get Away With Murder. To date, about two minutes of Season One, Episode Three remain my favorite moment of the show, as they contain a perfect storm of outrageous ethical violations resulting not in prosecution, expulsion, or reprimand, but in reward for one of the show's main characters. It's outrageous, egregious, preposterous, and represents the law-ignoring mayhem that makes How to Get Away With Murder such fun for nitpickers like myself.

This is the third in my series of posts detailing the ethical violations in How to Get Away With Murder. My first post from a year and a half ago is here, and my most recent post on Episode Two is here. As always, the Pennsylvania Rules of Professional Conduct are my go-to authority on the characters' ethical violations.

That's it for the background, now on to the condemnation...

How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.

"Arbitration by Combat"

An article on Game of Thrones, trial by combat, and arbitration that I coauthored with Raj Shah is now available on SSRN. You can download the full paper here. Here is the abstract:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. While modern legal systems reject trial by combat as an unjust and barbaric practice, this article examines whether trial by combat may be employed as a means of private dispute resolution in the United States. This article evaluates whether ‘arbitration by combat’ provisions based on Game of Thrones and various historical approaches to trial by combat would be upheld by state laws and protected under the United States’ Federal Arbitration Act (FAA). This article concludes that while Game of Thrones-style arbitration by combat may violate state contract and criminal laws, arbitration by combat that conforms to less-violent historic practices may survive state law challenges and may even fall under the protection of the FAA.

Raj and I wrote this for a special issue of the Media and Arts Law Review dedicated to the subject of "Law and Law Breaking in Game of Thrones." Melissa de Zwart of the University of Adelaide Law School was extremely helpful throughout the editing process, as was an anonymous peer reviewer who provided numerous insightful suggestions and comments. Raj was extremely helpful and patient as a coauthor, as several deadlines in the editing process tended to coincide with me being in trial. Even when my schedule became hectic, Raj managed to provide thoughtful edits for the paper as a whole, making the final article far superior to what I alone could have produced.

Readers should know that I have not read any of the Game of Thrones books and that I have only seen a few episodes of the series. Raj is to thank for the sections of the paper regarding Game of Thrones (although I have seen some clips of the show's trial by combat to understand how violent the practice can be). Raj also primarily wrote the sections pertaining to the Federal Arbitration Act -- my contributions to the paper include the discussion of historic trial by combat and state-level obstacles to arbitration by combat provisions.

Finally, I would like to note the inadvertently timely publication of this article. A New York attorney recently invoked trial by combat in his own litigation proceedings. While that instance of trial by combat is unlikely to take place, I hope that our article can provide some insight into how trial by combat proceedings may find their way into the litigation process.

Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

Arbitration by Combat and Game of Thrones

I am happy to announce that I will be coauthoring an article with my former UCLA Law classmate, Raj Shah, in an upcoming special issue of the Media and Arts Law Review. The issue will contain articles on "Law and Law Breaking in Game of Thrones." Prior posts on the call for papers can be found here and here.

Our article currently has the title, Arbitration by Combat. Here is the article proposal that we submitted:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. The trials of Tyrion Lannister and Sandor Clegane stand as some of the most defining moments of the series. However, as the series vividly illustrates through Oberyn Martell’s duel with Gregor Clegane, trial by combat can pose mortal dangers for combatants not endowed with the protection of the god R’hllor. Furthermore, as Tyrion Lannister’s prosecution by the Iron Throne demonstrates, trial by combat can often lead to unjust results.

Trial by combat was also a common method for resolving disputes in medieval Europe. Trials by combat were subject to numerous procedural rules and were often (but not always) less violent than the disputes in Game of Thrones. But trial by combat has since been rejected as an unjust and barbaric ritual. 

The concerns surrounding trial by combat as a means of dispute resolution raise several interesting questions: can agreements to arbitrate disputes by means of a trial by combat be enforced in the United States? And if these “arbitration by combat” provisions are enforceable, what form of combat would be permitted under existing law? The more restrained historic form of trial by combat or the Game of Thrones variety?

In this article, we seek to answer these questions by examining how arbitration by combat agreements might implicate state and federal laws in the United States. First, we explore whether such agreements would run afoul of state laws barring contracts that are unconscionable or against public policy. We argue that savvy drafters of arbitration by combat provisions should avoid the gory proceedings in the Game of Thrones universe. But arbitration by combat based on historic practices may survive judicial review.

Second, we examine whether state regulation of arbitration by combat provisions would be preempted by the Federal Arbitration Act’s protections for arbitration agreements. In particular, we analyze whether the Act would protect an arbitration by combat agreement against state interference, given the U.S. Supreme Court’s recent expansion of the Act’s reach in AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).

We argue that while Game of Thrones–style arbitration by combat may violate state contract laws, arbitration by combat that conforms to historic practices may find more success. We also conclude that there is a strong argument that an arbitration by combat procedure falls under the protection of the Federal Arbitration Act, provided it satisfies certain “fundamental attributes of arbitration” identified in Concepcion. That is, the combat would have to be informal, speedily resolved, and relatively inexpensive to conduct. Hence, state safety regulations of combat proceedings – while permissible – would be preempted to the extent they interfere with such characteristics.

The topic of this paper should not be too much of a surprise to regular readers of this blog. Trial by combat has always fascinated me, and you can find my previous posts on the subject here and here.

I must confess, however, that I am not well-versed in the Game of Thrones literature. Fortunately, my coauthor, Raj Shah, has extensive expertise in that area (as well as in the area of researching and writing about the Federal Arbitration Act). While Raj, like myself, has not published on the subject of Game of Thrones before, he has published a critical race perspective on U.S. standing doctrine in the UCLA Law Review, which you can find here.

As is the case with any post or paper I have announced on this blog, comments and criticism from readers are welcome. Our deadline for completing the full paper is December 19.

Impeachment by Blog Post

From Walter Olson's Overlawyered, I learned about this post by Jim Dedman who writes at the blog, Abnormal Use. Dedman tells a cautionary tail about another lawyer's attempt to respond to Dedman's argument in court with a contradictory prior statement from the Abnormal Use blog.

Sometimes I wonder whether anybody will attempt to contradict an argument I make in court or in a paper by appealing to this blog. It hasn't happened yet, but I continue to hope that the blog will become popular enough that people begin making these impeachment attempts.

If that does end up happening, I suppose that a reasonable reply would be to point out that my thinking sometimes evolves. I welcome criticism and commentary on every post I write, and if I hear a compelling reply to an argument I make, I may well end up changing my view.

On the other hand, a craftier response would be to deny authorship and claim that the post was written by a different Michael Smith. While my common name may occasionally create embarrassing confusion (even with the middle initial listed!), in an impeachment situation, my generic name can be effective form of camouflage.

One might think that the inclusion of a picture in the blog would spell defeat for this ploy. But I don't think that's necessarily the case. I had the fortune of getting my blog's picture from a friend who has an extremely nice camera. In real life, I appear far less artfully focused -- so much so that I should be able to create enough doubt to thwart any impeachment attempts.

Leeson on Trial by Combat and the Coase Theorem

I have been researching trial by combat for a project I hope to undertake in the near future. In the process I read Peter Leeson's article, Trial by Battle (3 J. Legal Analysis 341 (2011)). It is one of the most fascinating things I have read in some time, and the first three paragraphs of the introduction give a good summary of Leeson's argument:

Modern legal battles are antagonistic and acrimonious. But they aren't literally battles. Disputants don't resolve conflicts with quarterstaffs. Their lawyers don't fight to the death. This wasn't always so. For over a century England's judicial system decided land disputes by ordering disputants' legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle.

To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it "monstrous." The institution's barbarity seems equaled only by its senselessness. As Richard Posner put it, "trial by battle" is one of those "legal practices that no one defends any more."

Almost no one. This paper defends trial by battle. It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179. I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efficiently. (citations omitted).

I previously blogged about trial by combat here. Leeson's article recounts the practice in detail and his approach to the practice from an economic perspective makes Trial by Battle the most interesting article I have read since R.S. Radford's, Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel (62 S. Cal. L. Rev. 615 (1989)).

In case you were wondering, Radford's article is also related to my current project. I will hopefully have more on that later.

Pronouncing "Daubert": An Important Lesson You May Not Learn in Evidence Class

Last week I wrote a post on expert evidence. In doing so, I cited Daubert v. Merrell Dow Pharmaceuticals, which is the case establishing the most widely-used test for admitting experts' conclusions and opinions.

While I am fairly familiar with the legal test that Daubert establishes, I realized after writing that post that I was not sure how to pronounce "Daubert." I've heard the case pronounced in a variety of ways. For intance, here the case is pronounced so it sounds like "Daw-burt" and here it's pronounced "Dow-burt. In this video the speaker notes that while he pronounces it "Daw-burt," there are those who prefer "Daw-bear." He says that he hears this pronunciation from those below the Mason-Dixon line, which surprised me -- since I thought he was referring to people from Chicago. I've also heard a "Dough-burt" variation, though I could not find any Youtube examples.

I remember a lot of what I learned in evidence class, but I unfortunately do not recall whether I was taught which of these varying pronunciations is correct. It is very possible that even if this was covered, it slipped my mind at the time, since the pronunciation of "Daubert" was not a top priority when it came to preparing for the exam. I decided that I would look into this issue in the event that I ever need to pronounce the name of this case in court or in conversation.

Fortunately, I was able to find an authoritative source on the subject. Michael Gottesman, the attorney for the plaintiffs in the Daubert case, wrote a 1994 article in the Emory Law Journal entitled, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor. (43 Emory L.J. 867). At the beginning of that article, he confronts the pronunciation of "Daubert" head on:

Among the handful I've been fortunate to represent in this new capacity have been the families of Jason Daubert and Eric Schuller, the petitioners in the case that has mistakenly come to be called the “Dough-bear” case. My principal contribution to this Symposium is to report that the folks who brought this case to the Supreme Court pronounce their name “Dow-burt”-or, as some might say, exactly as it's spelled. The penchant for foreign fancies has caused many to show their expertise in French pronunciation at the expense of this all-American family.

The confusion was hardly mitigated during the Supreme Court argument. The first Justice to use the name in framing a question chose “dough-bear,” and I faced the tricky tactical question of whether to spend my precious time (and all hope of kindly reception) correcting this judicial mispronunciation. I opted not to, and the rest of the Justices all then assumed, gallingly, that the Gallic was apropos. 

Let me, then, use this occasion to make amends to my clients. The family's name is not dough-bear. Whether this will (or should) affect the way people pronounce the name of the Supreme Court's opinion is, of course, another matter. Do the litigants or the Court own title to the pronunciation of the name of a Court opinion?

So -- it looks like "Dow-burt" is correct. Go forth and spread the news, and don't hesitate to correct your colleagues and loved ones.

But I would like to mention one final caveat that will guide my own practice. If I am ever in court and if I hear a judge pronounce the case "Daw-burt," or even "Dough-bear," I'll do my best to conform my own pronunciation to the judge's. I recommend that others do the same.

Hall on the Continuing Importance of Oratory

I came across E. Connor Hall's essay, Oratory and the Lawyer, in the Green Bag (22 Green Bag 332 (1910)). There, Hall argues that the art of oratory is generally ridiculed as no longer being of any use to lawyers. Hall ties this to phenomena of the time which, he argues, are leading to a general decline in oratory. He notes that newspapers and the rise in writing may be to blame for the decline in the focus on oration, and he also points out that the greatest of speeches tend to come in times of crisis, but there had been no crises "of supreme importance since the settlement of the slavery controversy," (remember, the essay was written in 1910).

Hall also notes that the term "oratory" had fallen into disrepute, and that it was often taken to mean "windy, holiday, and schoolboy speeches, or the high flown peroration, often tacked on without logical connection, after the main speech is ended." Despite these developments, Hall argues that oratory remains a uniquely effective mode of communication, and a mechanism of persuasion that lawyers should still seek to master.

While Hall was writing in 1910, it is interesting to consider the merits of his arguments in light of modern technology and trends in legal practice. Hall would probably disapprove of the low level of influence the spoken word has in the digital world. On the Internet, writing remains the dominant means of persuasion. When speeches are used to persuade, advocates tend to clip short sound bites from the speech, or they resort to using the awful practice of sending each other pictures with words on them.

Legal practice has also changed since Hall wrote his essay. Trials are extremely rare, so the skill of persuading a jury seems virtually irrelevant to a modern practitioner. Courts' schedules are packed, so what are the odds that they will be persuaded by an effective oral presentation when they have dozens of similar motions to get through?

While Hall would have more of an uphill battle arguing for the importance of oratory today, it is a battle that he could still win. Confidence and persuasiveness in face-to-face situations is a skill that can cut through the haze of online nonsense. And while trials are rare, motions still need to be argued in court -- and may be even more important than ever -- since an overburdened judge who has not read the briefs may end up being convinced by a persuasive advocate.

And for those lucky few people who will have the chance to take their cases before juries, this selection from Hall may be worth reading:

[A] bare recital of the testimony favorable to his cause does not comprehend the duty of the advocate. He must go further and explain the relation of the circumstances of the case to each other, as well as their relation to extraneous facts. He must examine every bit of testimony, testing it by other parts of the testimony, and pointing out its significance in the light of the whole case. The facts in his case are not things by themselves, unrelated to other facts of life. His case is not isolated in the world of experience. And before a just and proper judgment can be reached, his cause must be weighed according to standards of conduct in general. To thus correlate the facts of a case, and explain their meaning in relation to one another, and to human experience in general -- to do this well, is oratory.

Whether the Prosecution Must Unilaterally "Disarm" During "Rhetorical Battle" With the Defense

I was intrigued by Westlaw's "Headnote of the Day," which states:

When entering rhetorical battle with defense counsel during closing argument, nothing requires the government to disarm unilaterally. 

United States v. Pirro, 9 F. App’x 45 (2d Cir. 2001)

I decided to look a little more into the context of this headnote. In Pirro, the defendant argued that he was denied a fair trial because the prosecutor acted improperly during closing arguments. The prosecutor argued that the defendant's arguments were "implausible and contrary to common experience," said that the defendants were "crooks," and sarcastically disparaged some of the inferences that the defendant asked the jury to draw.

The Second Circuit Court of Appeals noted that very little discussion on these points was required because (as the headnote states above), the government was not required to "disarm unilaterally" in rhetorical battle with the defense. The Second Circuit cases the court cited in support of its conclusion, U.S. v. Rivera and U.S. v. Wilner, clarify that the prosecutor is not foreclosed from being a strong advocate during closing arguments. The court in Wilner employed some rhetorical flair of its own in making this point:

A prosecuting attorney is not an automaton whose role on summation is limited to parroting facts already before the jury. He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion. His task is not rendered easy by the “no holds barred” tactics indulged in by all too many defense counsel in recent years.

I think that this is a good approach for courts to take, since the purpose of closing argument is not only to summarize the facts, but to apply them in a compelling manner. Without leeway to criticize the other side, and employ occasional sarcastic disparagement or colorful language, the prosecutor's closing would be reduced to a dull, unmemorable series of factual reiterations.

Of course, the right to a fair trial may be harmed if the prosecutor strays too far into inflammatory language, or if the prosecutor injects his or her own credibility determinations into the argument. And putting the right to a fair trial to the side for a moment, a prosecutor should probably avoid being overly sarcastic or condescending towards the defense, since this could come across as condescending and alienate the jury.

The lesson from Pirro and the cases it cites (which are probably more noteworthy, since they are published), is that a prosecutor can be a vigorous advocate without infringing the defendant's right to a fair trial. But prosecutors should take care that their arguments don't veer into unfair territory where constitutional violations or alienation of the jury may occur.

New ABC Show on Why Law Students Should Take Professional Responsibility Before Criminal Law

ABC's upcoming show, How to Get Away With Murder, looks like it will be two things: (1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter. Here is the trailer:

Consider the third piece of advice that the professor gives to her students: that students "bury" any adverse evidence. This will almost certainly lead to violations of Model Rule of Professional Conduct 3.4, which prohibits attorneys from unlawfully altering or concealing evidence. The comment to the rule acknowledges that criminal defense attorneys may come into possession of incriminating evidence, and while they may perform their own analysis of the evidence, they may not destroy or alter the evidence in the process, and may ultimately be required by law to turn the evidence over to law enforcement.

Even more disturbingly, students taking a criminal law course may be interested in criminal prosecution, rather than criminal defense. If prosecution-inclined students take the "bury" advice to heart and apply it in the prosecution setting, they will commit flagrant Brady violations, leading to reversed convictions and likely sanctions for prosecutorial misconduct. These students will also run afoul of Model Rule 3.8(d), which requires prosecutors to reveal exculpatory evidence to defense attorneys.

It will be interesting to see how this show is received by the legal crowd and the general public. The show seems to focus on law school rather than on practicing lawyers, which is a risky move. But if the trailer is any indication, the show's portrayal of legal education may be so inaccurate that it may end up being a success.

I also look forward to the show's spin-off, How to Get Away With Unconscionability, where the students' contracts professor only lists one phrase on the board: "Arbitration Clause."

New York Police Routinely Handcuff Shooting Victims: Thoughts From the Medical and Prosecution Perspectives

That is the subject of this article in the New York Times. From the article:

The New York Police Department routinely performs warrant checks on shooting victims. If an outstanding warrant is found, the police generally handcuff and shackle the victim, often for the whole hospital stay, no matter how minor the underlying offense or how grievous the injuries.

“That’s the procedure,” the department’s chief spokesman, Stephen Davis, said, explaining that the “patrol guide says prisoners will be handcuffed at all times.” 

“We’re not handcuffing him by virtue of him being a victim,” Mr. Davis said, referring in general to instances where shooting victims were arrested on minor warrants. “But if he has a warrant, it would require him to be in our custody.”

The Times goes on to provide several examples of this practice, and illustrates the burdens the practice places on gunshot victims.

While I am neither a medical expert, nor a criminal prosecutor, I have had the opportunity to work in both hospital and prosecutorial settings, and I think that the NYPD's uniform approach to this issue is misguided.

Courtroom Cages

An interesting article in today's New York Times discusses the surprisingly common practice of putting defendants in cages during courtroom proceedings:

Long eschewed as prejudicial by American courts and by the International Criminal Court in The Hague, locked docks, either metal cells or enclosures made of glass or wood, are still common, not just in countries like Russia and Egypt where the judicial systems often face international criticism, but also in many Western democracies, including Britain and France.

The article reports that this practice is drawing international criticism -- largely because placing the defendant in a cage portrays the defendant as violent and dangerous despite the law's presumption of innocence.

Based on some of my previous scholarship, however, I think it would be remiss to obliterate the practice of caging defendants entirely, however. As I point out in my essay, this particular aspect of courtroom procedure may be fitting for a certain class of defendants who pose a particular danger to those around them.

The Limits of Judicial Knowledge and the Importance of Briefs

Linda Greenhouse has this very interesting op-ed in the October 30th New York Times where she asks:

How do judges — especially appellate judges, who don’t hear witnesses or take testimony but must rely on the record compiled in the courts below — learn what they need to know? And, of course, how do they — or any of us — choose what to make of the knowledge they have?

Greenhouse surveys a number of cases, ranging from the Supreme Court's determination in Kennedy v. Louisiana that there was a national consensus against child rape -- citing Congress's failure to add child rape to a list of federal capital crimes over a decade earlier (and missing Congress's two-year old decision to make child-rape a capital crime in military cases), Judge Richard Posner's admission that he lacked full knowledge of the consequences of his decision in the voting rights case, Crawford v. Marion County Election Board, and Justice Scalia's admission that he lacked the knowledge of genetics necessary for him to join the Court's statement of facts in Association for Molecular Pathology v. Myriad Genetics.

I will admit that what drew me to the opinion was Greenhouse's mention of Kennedy v. Louisiana. The oral argument this case was portrayed in the fictional case, Serra v. Louisiana, in one of my favorite Boston Legal episodes, "The Court Supreme" (Season 4, Episode 17; transcript available here).

But as I continued past the initial Kennedy hook, I found that I was reminded of an article I read a while back that is forthcoming in the Emory Law Review. That article is Scott Moss's, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects (Lexis seems to indicate that the article has been released, giving the citation, 63 Emory L.J. 59, though the article is not yet available on the article's website).  Here is the abstract (from the version I found on SelectedWorks):

Prosecutors: Dot Your I’s and Cross Your T’s

Shaun Martin at the California Appellate Report posts about a recent decision by the California Supreme Court.  In this case, the defendant challenged his conviction for selling MDMA, arguing that the prosecution failed to sufficiently prove that MDMA was an illegal controlled substance.

The prosecutor presented evidence from a criminalist that the substance the defendant was “MDMA or Ecstasy.”  The criminalist’s lab report identified the chemical name of MDMA: “3,4-methylenedioxymethamphetamine.”  A police officer testified that MDMA was “a party drug, the effects of which can last up to 24 hours.”

And that was it.

I think some argument could be made that the jury could reasonably interpret this evidence to show that MDMA is a controlled substance.  “Party drug” might imply that the drug has effects similar to amphetamines and the chemical’s name contains “methamphetamine.”  It looks like the attorney general made these arguments.

The California Supreme Court didn’t buy it.

The lesson prosecutors can learn from this case is to always remember to prove every element of the case.  If the illegal drug is not identified by name in the Penal Code, the prosecutor needs to provide at least some evidence that shows that the drug is an analog and has similar effects to illegal, controlled substances.  At the trial level, there was virtually no evidence to this effect -and the California Supreme Court was right to call out the Court of Appeal’s use of “learned treatises” in affirming the conviction.

Finally, this lesson is especially important because if a verdict is overturned due to insufficient evidence, there is no chance of retrial due to double jeopardy concerns.  It isn't easy for defendants to lodge a successful complaint under the sufficiency of evidence standard, but when they do, it's all over for the prosecution.

UPDATE - January 26, 2014

I have changed the title of this post from the earlier, ironic "Prosecutors: Dot your T's and Cross Your I's."

Trial by Combat

One of my favorite law journals is the Green Bag:An Entertaining Journal of Law. The journal publishes lighthearted and interesting pieces, such as Brian Garner’s criticism of law review footnote practices about which I posted here and a micro-symposium on Orin Kerr’s “A Theory of Law."

The over-attentive reader (or normally-attentive citechecker) will note that the full title of the journal is “The Green Bag 2d.”   This is because the journal was inspired by the “original” Green Bag, a legal magazine that was published between 1889 and 1914.  Last year, I stumbled upon UCLA Law Library’s collection of these older volumes and.  Upon seeing the journal’s full title of “The Green Bag: A Useless but Entertaining Magazine for Lawyers,” and desperate for something to distract me from my impending finals, I began reading through some of the earlier volumes.

In my reading, I came across a number of quirky articles about legal history.  I will occasionally post about some of the more memorable articles I found.  While these articles’ primary goal seems to be to highlight historical curiosities, I have found that they also provide a unique perspective on modern law.  They also make you look smart if you discuss them at parties.  My first post on one of these articles follows the jump.

Exploring Dicta

Black’s Law Dictionary defines “obiter dictum” as “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”  This phrase is commonly shortened to “dictum” or its plural, “dicta.”  The portion of this definition that I would like to focus on is “unnecessary to the decision in the case and therefore not precedential.”

I won’t immediately conclude that Black’s Law Dictionary is incorrect.  Many courts seem to use this definition or a variation of it when describing dicta, so Black’s Law Dictionary correctly states the commonly accepted definition of the term.  However, while this definition is popular, it is wrong, or in the very least, misleading.

Many decisions reach a result for multiple sufficient reasons.  It would seem very odd to conclude that a decision has no precedential value simply because there are two sufficient reasons to reach that decision.  Quite the contrary: the explanation of multiple reasons signals that this opinion is particularly thorough and well-developed – a far cry from something that should be disregarded as not precedential.  The definition of dicta, however, compels the rejection of the full opinion, since the existence of multiple sufficient reasons for an outcome renders neither reason necessary (and unnecessary statements are not precedential).

Courts recognize that this would be crazy, and have thankfully qualified the definition of dictum.  The California Supreme Court, for instance, noted that “where two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other.”  (Southern California Ch. Assoc. Builders v. California Apprenticeship Council, 841 P.2d 1011, 1015 (Cal. 1992)).  Despite this fortunate qualification, the overly simple definition that identifies “dictum” with “unnecessary” is still likely to create confusion. 

A better approach would be to define dicta as those statements are comments that are “not necessary and not sufficient to reach a result, or those statements that are affirmatively labeled as dicta (or peripheral) by the court issuing the opinion.”  This approach would prevent multiple sufficient reasons from being labeled as dicta.  This approach would also grant courts the ability make broad statements without the fear that these statements will veer into the realm of dicta, so long as the courts qualify these statements.

Admittedly, this is a rough and preliminary outline of a definition of dicta, but I think it already has several advantages over the popular approach that Black’s Law Dictionary espouses.  There have been more thorough attempts to define dicta, including this impressive 2005 article by Michael Abramowicz and Maxwell Stearns that defines holdings as "propositions along the chosen decisional path or paths of reasoning that paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment."  Non-holding propositions are dicta.

I don't immediately see any troubles with this alternative definition, but I do want to flag another article by David Klein and Neal Devins that should underlie any discussion of dicta.  Even if a court recognizes a statement as dictum, that court may still give that statement full precedential value.  This happens a great deal, argue Klein & Devins, which casts doubt on the overall implications of the dicta/holding distinction.