I was tempted to post something broad, and sweeping, about the Rule of Law, and what Law means to society, but I don’t have the time for that right now and that’s going to have to be a series of posts. My time in Afghanistan – about 17 months in a 2 years period – gave me one of the most concrete lessons about the importance of the Rule of Law in society and pretty much a Master’s degree in “comparative cultural studies” – if such a thing exists. Another day on that one.
Nope, today’s is much more discrete. Evidence. Those who are looking for a cure for insomnia, this could be your lucky day. Saran on Evidence.
My evidence Professor, a former Navy A-4 pilot in Vietnam, Mike Mullane, would occasionally emphasize the difference between the Rules of Evidence (as in, the Federal Rules of Evidence or Maine’s state Rules of Evidence) and the Law of Evidence, which is a set of principles that have been handed down, debated, examined, over time, and in some cases are included in the Rules of Evidence. As an example, everyone has heard and used the term “hearsay” – the Rules of Evidence (at 801 and following) define it for our courts’ purposes, but the Law of Evidence might explain to us (from the English common law tradition) why do we exclude hearsay? What are the policy reasons for keeping out some hearsay statements (“I heard from Janine that Mark said that Tony was cheating on his wife…”) while we allow others (“Then Miranda said ‘Oh my God! Why did you stab him!?'”)? The Rules of Evidence and the Law of Evidence are very closely related, but not always identical. And sometimes principles in evidence come into conflict – hence the interlocking web of hearsay exceptions, or the interplay between character evidence and the limits on what kinds may be admitted about either a defendant, a witness, or a complaining witness (Rules 404, 405, 608, etc…).
But this post is not a dissertation on some particular arcane point of law (thankfully).
I frequently teach trial “stuff” to lawyers (particularly judge advocates): evidence, closings, opening, voir dire, etc. And I used to teach brand spanking new lawyers at the Naval Justice School every day (in fact, I’m teaching there again July 20th, I think). Anyway, by the time they came to us in the trial advocacy and military justice portions of the syllabus, they’re nearing the middle of their 10 weeks in order to become certified as Judge Advocates. They’ve just taken the bar exam in whatever state they’re from and they’re awaiting their results. They tend to think they “know” evidence because they’ve been studying for the bar. And I’m always amazed when I’m sitting as the judge for their mock trials, how badly some of them f#@* up the most fundamental Rules, and Principles, of Evidence. It’s as if they never even heard of either.
So, my rant, occasionally delivered to these young officers, has to do with being a trial lawyer. Evidence is to the trial lawyer what the rules of baseball are to a baseball player. Or the rules of hockey are to a hockey player. They’re table stakes to even walk into the courtroom. If you have ever followed sports and heard a professional athlete answer why he did something boneheaded with “I didn’t know that was the rule,” you’ve likely had the same reaction I have to a lawyer in court not knowing the rules of evidence. “Are you f’ing kidding me?!”
It’s one thing to have a different opinion than the judge about whether or not an alleged rape victim’s prior sexual history may or may not be “constitutionally required” to be admitted under Rule 412; it’s something else to be standing there going, “Rule 412…uhhhh, yeah….ummmm…I just thought it was relevant…” It’s at that point that the judge should be allowed to smash said lawyer’s fingers with the gavel. (When the judge doesn’t know, you’re standing there as the lawyer thinking to yourself, “Oh, God, no. This is going to be a looong trial…”) Now, this may seem harsh, but it comes back to this baseline proposition for me: lawyers (and judges) serve people- not clients – real people whose lives and livelihoods may be affected by what we do or don’t do in the courtroom. Further, we serve (or fail) the larger society who occasionally watch and report what we do. Confidence in our legal system, particularly the trial process, is a kind of glue that holds our society together (I’ll explain why this is in a later post).
We all make mistakes or misapprehend a rule or point of law. It’s a part of learning and getting better at anything. But there’s a baseline competency that has to exist – and that comes from being impassioned – geeked – about this kind of stuff. If you can’t – or don’t want to – have a conversation about evidence or some finer point from the latest trial you’re preparing for over a beer with some colleagues, then you probably shouldn’t be a trial lawyer.* You should be doing something else – like transactions or international law or trusts and estates or… plumbing. Whatever. Just get out of the courtroom. There’s no shame in it. Find something else that does light your fire and practice that. You’ll be happier and more successful – and those of us who love trial work will stop thinking about smashing your fingers with the gavel every time you open your mouth in the courtroom. And so will the poor schlub you’re representing…
*Perhaps this is why trial lawyers burn out quickly and (some) burn through marriages. It is a hard balance to strike between being enervated by your work and neglecting your family. Fortunately (or unfortunately), my marriage ended over much more mundane issues… that b^#%@ was crazy!! (In my best Richard Pryor voice. I’m kidding, but it didn’t have to do with trial work. I was actually teaching – and giving this lecture to students – at the time we split).