Snoqualmie

Ooo, how was jury duty? Not that the cookies don't look delicious, I'll make some as soon as I get dried cherries. But, in the interim: How was jury duty?

Were you trying to get on a case, trying not to get on a case, or just ambivalent? Was this at that big courthouse in Oakland near the Lake Merrit BART stop? What'd they ask? Did they just dismiss you without consideration?

They didn't ask me anything, actually; I wasn't even called into a courtroom to be a potential juror. I just sat around reading Dune for two hours in the jury assembly room while they called off lists of names of people who were being called into courtrooms.

I was originally excited about the idea of being on a jury, at least for the novelty, but every time they started calling names I discovered I was hoping they wouldn't call me. Juryhood seems stressful. It's entirely possible that I had that in mind when I dressed this morning also, accounting for the fact that I wore a skirt and left my now even more horrific looking cat scratches visible. I think I was hoping I'd look too weird to be trusted as a juror.

It's funny; in Civil Procedure we spent a month on pre-trial proceedings, a couple of weeks on appeals, and now we're back to pre-trial stuff. You know how much of the entire Civil Procedure course we're spending on actual trial? One class. One one-hour class period and twenty pages in the textbook to cover jury selection, opening statements, witness examination, evidence, closing statements, deliberations, and verdict. Then it's back to the paperwork and brief filing.

What's more, the professor's discussion of trial procedure was based, not on his studies, not on his years of academia, but on the one time last summer when, as a private citizen, he was called to jury duty and sat on a jury. He says that he was really excited because, after three years of law school, two years of judicial clerkships, a year at a private firm, and three years teaching, when he was called for jury duty he saw the inside of a court room for the first time. Ever. So most of that class was him telling stories about his experience on jury duty.

I think serving on a jury would be fun, if it weren't for the whole "having a life" thing. I wonder why they didn't call you? Did you fill out a questionaire or something? Did they have some basis for not picking you, or was your name just at the bottom of the list?

I think my name was just at the bottom of the list. Rather, I think it was a random selection; I didn't fill out any questionnaires or anything. After an hour or so they just rattled off an alphabetical list of names and herded those people off to a courtroom. Then another half-hour and another list of names, and finally they called everyone else and said, "you guys, go home." Sadly or fortunately depending on your attitude, it wasn't A through J go here, K through R go here, S through Z go home, or else I (and you) would be permanently un-jurred.

So basically anyone who's inspired to go to law school by watching Law & Order, and wants to be the lawyer wandering the courtroom under the impressed eye of the judge and making impassioned, yet flawlessly reasoned, appeals to the jury... is going to find law school very very boring? I guess there's nothing inherent in the idea of The Law that means it should need to involve court proceedings, but in terms of general connotation it seems pretty well assumed that the basis and point of a legal education and/or career is Trials Like You See On TV.

Huh.

Yeah, I don't have the actual number, but something like 95%+ of cases settle before they even get to trial. And I believe it was my Civil Procedure professor who said that the majority of lawyers go their entire careers without ever going into a courtroom in a professional capacity.

On the other hand, my friend Maria's already argued before a judge, and she's a first-year law student. She's in CAP (Courtroom Advocacy Program) which is a public interest student group that puts together law students with impoverished litigants to help them make pleas before courts. My understanding is that it's mostly family law and civil type stuff, the sort of thing that the government won't appoint a lawyer for you, but where you stand to get screwed if you don't have representation. Recognizing this, and realizing that there's far more legal work to be done here than there are lawyers willing to do it, New York City allows law students who've gone through a training session to represent these clients in court.

Does that 95% figure apply to civil cases, criminal cases, or both? Is it constitutional for criminal cases not to go to court? There must be something about it that makes it okay that I'm not thinking of.

Wow, CAP sounds like a fantastic idea. I can see how there's a theoretical problem with allowing semi-trained law students to serve as counsel in court cases and thereby imply that they're fully qualified lawyery types, but then, if the alternative is completely untrained non-lawyers representing themselves that argument really ceases to be very compelling. I also can't help thinking of it as "necessary legal experience" despite what you've just said about arguing in court not actually being a necessary part of lawyerdom. I guess it's like saying that making beef wellington is a necessary part of being a chef, and anyone proposing to become a chef should have the chance to make beef wellington, never mind that they're actually intending to be a sushi chef.

Also, to get back to cookies here, this recipe can be turned into Oatmeal Absolutely Anything cookies. It's merely a bastardization of a standard oatmeal raisin cookie recipe, and the list of other possible additives is endless: walnuts, cranberries, peanut butter (1/4 cup is sufficient to make deliciously peanut buttery cookies), coconut, grated orange rind, apple, persimmon, banana, even small chunks of other cookies for a truly recursive delight.

I imagine 95% is for civil cases, but again I'm fuzzy on the number; I believe I've heard anywhere from 90% to 99%, so there may be some hyperbole involved. But probably not a massive amount; it's likely somewhere in the 90s and not, say, the 30s, or even the 60s or 70s.

I pretty distinctly recall hearing that a similarly large number of criminal cases end before trial, but those, I believe, happen exclusively through plea bargain, where the accused agrees to plead guilty and the prosecutor agrees to charge them with a lesser crime and thereby get them a lower sentence.

On the other hand, in Civil Law cases can end in a number of ways before trial. They can settle, which is somewhat analagous to a plea bargain, insofar as it's the two sides agreeing to a solution that doesn't require a trial. Civil cases can also end on Summary Judgment, when, after the base facts have been established in pre-trial briefs, one side files a motion claiming that the case is so incredibly strong for their side that it would be a waste of time and resources to go to trial, so the judge should just rule for them right now. This can be done by either the Plaintiff or the Defendant. The standard for making a summary judgment, though, is very high. In general, the standard of proof for civil trials is "More likely than not," meaning plaintiff makes their version of events, say, 51% probable. For Criminal Law, it's "Beyond a Reasonable Doubt," so prosecution's story is, say, 65-70% likely. Summary Judgment requires "Overwhelming Evidence," which means that one side's story is about 90% likely to be true based on preliminary evidence. It basically serves to toss out completely frivolous lawsuits.

In criminal law there's no analog to summary judgment; a judge can't just say "You're so guilty you don't even get a trial!" That's not how America works. This leads, however, to the occasional frivolous criminal trial, where the defendant has a massive pile of evidence against him but stubbornly refuses to plead guilty. On the other hand, a judge can throw out a frivolous or malicious prosecution, so in that sense the system is slightly tilted in favor of defendants.

I agree, somewhat, on the trial experience thing. Law Schools don't offer much, or require any, trial-type experience. The justification offered is that most lawyers don't do the whole court room thing, so why bother? Fair enough, but nearly every lawyer will be involved in settlement negotiations at some point. Yet very few law schools offer courses in deals and bargaining, and the ones that do tend to offer a single small seminar that accomodates 20-30 students per semester. The real reason law schools don't require trial/bargaining experience is because it wasn't required in the curriculum laid down by Dean Christopher Columbus Langdell of Harvard Law School back in 1890, the model on which all law schools still base their curriculum and pedagogy today.

The percentage of criminal cases that end in a plea bargain varies wildly from county to county. If you were in, say, Del Norte County, your odds of having a sympathetic jury are much less than in Alameda County. Many public defenders are overwhelmed with case work, so I'm sure there is pressure to settle before going to trial. There's pressure on prosecutors to avoid trials as well, but you've got a lot more money and resources on that side. If you can afford to pay your attorney, I would imagine the odds of you pleading guilty for any reason are greatly diminished.

Law students participate in the criminal appeals process quite a bit, for what it's worth. I think a judge needs to grant a waiver if they are going to argue in court, but they regularly write briefs and motions.

I think that hits somewhat on why there are so few trials compared to the number of suits, both criminal and civil; in a winner-takes-all system where outcomes can never be certain, where trials are lengthy and lawyers are costly, there's always a strong incentive to do whatever you can to avoid trial.

The public defender thing also touches on the problem where lawyers have different incentives than their clients with respect to settlement. The public defender is overwhelmed and can only really handle the strongest cases, so a lot of marginal cases that might be winnable end up plea bargaining.

A similar situation exists with contingency fee lawyers. These are the lawyers that get a chunk of the verdict/settlement, and don't get paid if you lose. The thing is, they're paying all of the expenses for the case out of pocket, on the gamble that they'll win/settle and make up their losses. So when a settlement offer comes down, the plaintiff's lawyer has a choice between taking the sure thing with the settlement, or taking the gamble of going trial, in which case they might lose and be out for the costs of going to trial (which, depending on the action and how much discovery goes on, could be incredibly expensive). On the other hand, the client has a choice between a sure thing with the settlement, or going to trial and getting either a big pay off, or nothing. If they get nothing, they're in exactly the same situation they were in before they took on the lawyer. There's still the element of gambling, but the downside isn't nearly as bad as it is for their lawyer. So, generally, the lawyer takes it out of their client's hands. They have the client grant the lawyer the authority to settle on the spot without consulting the client. Alternatively, they paint a much bleaker picture of trial prospects and expected verdict than is likely, in order to give the client more incentive to accept a settlement.

Dear Dianna,

These cookies sound amazing! I have a problem, though. I'm not a vegan, and don't have many of the products you describe; can I replace Earth Balance, for example, with the same quantity of butter? Will they still come out as delectable? Stop tempting me with food porn!

Ahem.

Signed,
Midwestern Egg-Eater

You know, I suppose you could do that. You'd wind up back with the Quaker Oats container's oatmeal cookie recipe, since that's what I based my veganized version on.

To reverse, replace the Earth Balance with butter, replace the egg replacer and soymilk with 2 eggs, and replace the turbinado sugar with 1 cup white sugar and 1/2 cup brown sugar (since turbinado is slightly molasses-y). Keep an eye on the baking time, though; I can't remember if eggless cookies bake faster or slower than eggy ones.

Food porn is precisely the purpose of my posting recipes here, I'll have you know. The idea is to train everyone who reads my page to salivate at the mention of vegan baked goods. And, see, it worked. Ha!