That divorce case;

Ontario Superior Court Judge Joseph Quinn’s 31-page December decision—which made the local papers and is still doing the rounds of legal circles on the internet—is filled with the kind of black humor and derision one would imagine is usually kept for close be-robed colleagues only. He chided the couple for “marinating in a mutual hatred so intense as to surely amount to a personality disorder,” and said the chances of amicable resolution were “laughable.” The wife had poisoned their daughter “irreparably” against the father who, the judge admitted, had “a near-empty parenting tool box.” (More on TIME.com: 5 New Reasons to Get or Stay Married This Year)

Quinn mocked the couple’s habit of sending abusive, vulgarity-laced texts to each other and their inability to be civil at their children’s sporting events. On one occasion apparently, Catherine, the wife, had tried to run Larry over with her car — “always a telltale sign that a husband and wife are drifting apart,” the judge noted.

Catherine’s relatives, several of whom are Hell’s Angels, made death threats against her ex , which the judge mentioned, adding that  “on Oct. 18, 2007, a nautical theme was added. According to Larry, ‘Catherine’s sister-in-law yelled out her window that I was going to be floating in the canal dead.’ ” That Catherine told her children they’d go to jail if they even called their dad did not help matters.

http://healthland.time.com/2011/01/05/the-family-judge-who-flipped-out/?iid=WBmostpopular

Samuel Johnson

My paper on Wills and Family Law is tomorrow. While perusing through cases, I came across the case of  Lam Kah Heng Jonathan and Another v Magdalene Lye Yoke Ching, where the judge, Loo Ngan Chor, ended his judgment on a will with a poem!

I am not familiar with the judge but if anyone does know his background, do let me know. I am definitely curious.

“It would be apposite for me to articulate a poetic if vicarious sigh by concluding with lines from Samuel Johnson’s poem “The Vanity of Human Wishes – The Tenth Satire of Juneval Imitated” which, though written about the turmoil of dynastic, political and territorial ambitions, captures my take on the flavour of the life that was the deceased’s (in the last lines of the poem) and the flavour of this litigation (in the first lines of the poem):

Let observation with extensive view,
Survey mankind, from China to Peru;
Remark each anxious toil, each eager strife,
And watch the busy scenes of crowded life;
Then say how hope and fear, desire and hate,
O’erspread with snares the clouded maze of fate,
Where wavering man, betrayed by venturous pride,
To tread the dreary paths without a guide,
As treacherous phantoms in the mist delude,
Shuns fancied ills, or chases airy good;
How rarely reason guides the stubborn choice,
Rules the bold hand, or prompts the suppliant voice

For love, which scarce collective man can fill;
For patience sovereign o’er transmuted ill;
For faith, that panting for a happier seat,
Counts death kind Nature’s signal of retreat:
These goods for man the laws of heaven ordain,
These goods he grants, who grants the power to gain;
With these celestial wisdom calms the mind,
And makes the happiness she does not find.”

Needless to say, I am very curious about the judge and whether his other judgments are similarly lyrical. However, thinking of it from the Singaporean typical plaintiff/defendant point of view, if I was the losing party, I might have been pretty annoyed with the judge quoting poetry after all my effort in the trial.

I am not so sure also if the case circumstances warranted so much sentiment.

Despite that, I do like Samuel Johnson and it was a pretty cool ending to come across.

Loganatha Venkatesan and others v Public Prosecutor

“Venkatesan and Chandran were charged with the murder of one Maniam. Maniam’s widow, Julaiha, was charged with abetting the other two accused in the commission of the offence by conspiring with them to murder her husband. The Prosecution’s case was that, pursuant to a conspiracy with Julaiha, Venkatesan and Chandran attacked and killed Maniam while an accomplice, Mani, waited in a get-away truck. The evidence implicating the three was given by one Ravichandran, who testified that he was asked by Venkatesan and Chandran to help kill Maniam. They had brought him to see Julaiha, who told him to “finish that man [Maniam]”. Julaiha assured Ravichandran that she would pay him any amount he wanted. Ravichandran reluctantly agreed and subsequently accepted $3,000 from Chandran as payment for his participation. Evidence showed that the money had originated from Julaiha. After two failed attempts to kill Maniam, Ravichandran decided to back out of the scheme and escaped to India after he stole some money from Chandran. The killing of Maniam was witnessed by Maniam’s stepdaughter, Fairos, one of Maniam’s neighbours and her maid. Fairos identified Venkatesan and Chandran as the men who attacked Maniam while supporting testimonies were given by the other eyewitnesses.”

Real life cases sometimes read like a soap opera. A very intriguing case from the Court of Appeal in 2000.

Legal Entangle

As you can see, have been playing around with the layout of my blog a bit. The same way my cat chooses her favourite position on my computer desk. One of her favourites, I think, involves her sleeping on my phone and having a paw half outstretched towards me – one of the sweetest things to see in a tired evening. Last night I was worried she would eat bees – as two bees had flown into the room and did a version of kamikaze suicide with the air conditioning vent. Those who know me well understand the way I deal with cockroaches and bigger insects, quite simply, I drop my mother’s medicine books on them. In this case however, a difficulty presented itself as we are running out of medicine books, and my cat pretends not to notice them, despite acting like a thievish Tybalt at the tiniest lizards in the house. Cats are picky.

The past day after a lovely call with Irving, had a frustrating time working out the intricacies of criminal procedure – which is as difficult as I remember it. But it is a lovely moment of enlightenment when I finally understand how certain theories operate practically, though I often miss the jurisprudential aspects of university studies.

Read a rather interesting article from DRI on women in the courtroom: “A Career in the Courtroom: A Different Model of Success for Women who Try Cases.”

“Our clients want trial teams who look like the communities where they try cases. In my most recent trial in federal court, seven women sat on a jury of eight. If we want to communicate in the most effective way, if we truly want to represent the clients and communities we serve, we need women trying our cases.”

Some points they quote would be familiar, and they also apply to women seeking to advance in the banking/business or other sectors.

Also, here’s a brilliant paper by Johnson on the objective probability and knowledge in criminal law I came across while preparing for my criminal procedure tutorial:  “Knowledge, Risk, and Wrongdoing: The Model Penal Code’s Forgotten Answer to the Riddle of Objective Probability“.

“In criminal cases, courts routinely say that the lawfulness of an actor’s conduct depends in part on the objective probability of harm posed by the conduct. The conventional wisdom among criminal law theorists, meanwhile, is that objective probabilities of the required sort do not even exist, much less determine the lawfulness of conduct. This Article sides with the courts. Drawing on a forgotten but central feature of the Model Penal Code, and on a parallel feature of the law of search and seizure, the Article argues that the answer to the riddle of objective probability lies in the difference between what the actor knows and what the actor merely believes. It argues that probabilities calculated on the basis of what the actor knows – on the basis of “the circumstances known to him,” in the Model Penal Code’s formulation – are not illusory, and moreover are objective in exactly the way that the criminal law appears to require. It argues, further, that the circumstances known to the actor encompass or imply everything essential to actor’s perspective, and so provide a fair basis for determining the justifiability and lawfulness – if not the culpability – of the actor’s conduct.”

 

Legal Entangle Mints on Etsy: Chocolate mint candies wrapped in humour, wit and wisdom about those who practice law

Overview from the Bench, by The Honourable Justice Choo Han Teck

Recently, I had the opportunity to read a very interesting article by Choo Han Teck, admitably I don’t know much about this judge, but I am learning more about the different legal personalities in the course of Part B, especially through A, who has been a good friend and wonderful companion on the course. Without my dear girls – WN, A and H, I think I would honestly feel terribly dreary writing an endless sequence of letters.

I’ll be sharing more on this article in time, but I thought this particular interpretation on Dworkin was quite refreshing – (in UCL, hardly anyone contradicts Dworkin, and many academics are staunch Dworkin supporters):

The connection between the different spheres of knowledge and learning is a close one, as Ricoeur illustrated in the context of the constant battles involving Dworkin and his favoured target, legal positivism, and the problems that frustrated both him and legal positivists. Referring to judicial discretion, postulated by some legal positivists as the truly legal answer in hard cases, and Dworkin’s indignation at this very thought, Ricoeur stated:

“Whence the problem as Dworkin sees it: how to justify the idea that there is always a valid response, without falling into the arbitrary or into the judge’s claim to make himself a legislator? It is at this critical instant that the juridical theory runs into the model of the literary text and the submodel of the narrative text, which will become under Dworkin’s pen, the paradigm of the literary text.”

Ricoeur’s essay is used here as an illustration for a straightforward but important point. An advocate can get by with a superficial understanding of the law and its jurisprudential implications by, say, accepting law as the rules that he can find expressed in legislation or judgments of the courts. He might get inquisitive and probe deeper into the question as to what law really is. At that point, he will meet the legal positivists, the natural law lawyers, and innominate philosophers like Dworkin. If he goes further, he may see the expansion of jurisprudential disputes acquiring the sheen of fresh meaning from other branches of knowledge, as Ricoeur was here attempting to do, showing Dworkin’s enthusiasm for the idea of law as interpretation prevented him from seeing that interpretation must lead to argumentation, and from that, the discretion of the interpreter becomes as powerful as that of judges, a notion that Dworkin disapproved”.

Thought-provoking stuff on law coming alive – As Choo Han Tech notes, “an advocate will learn in the process of study and reflection that although the finest exhibition of his art lies in the ability to simplify, simplicity is derived from a distillation of the profound; it is not attained by jettisoning deep learning. Simplicity is not synonymous with superficiality; and learning continues long after a case is closed”.

Really encourages me to go deeper into the practical subjects I am working on currently. Distilling the profound, what a thought.

Miss America takes the stand…

I spent the day after lectures procrastinating generally and reading Agatha Christie’s Spider Web (absolutely captivating book, I finished it in one sitting and it is my favourite play of hers to date!) and Robert Cialdini’s Influence (quite an interesting start, though it reads abit like the Encyclopedia of Cults) over shrimps and clam chowder at LJS. Following, I stormed around rooms and did my usual fanatical round of laptop polishing and labelling of files (the earnestness of my new personal life documentation systems) and futile instruction of Cat. Suddenly at 3am, it dawns on me after tossing and turning over a furry feline body that I have too much on my mind, and I suddenly feel inspired to finish my client’s conveyancing attendance note at 3am. So really, my discipline is a strange creature like that.

I wish I am more consistent, and yet I secretly feel glad I have secret bouts of passion, even as I feel guilty over the lumps of inactivity inbetween where I sip of apple juice and think of nothing, and think that Agatha Christie novels are indeed, contributing something to the mind (in truth they are just my guilty pleasure).  It would be interesting, finding out the little guilty pleasures of strangers.

I haven’t written detailed letters to the people I’ve meant to, or attended the dinners and jazz events I’ve promised to, or the afternoon teas I’ve craved for. Its a busy period this few weeks, hopefully the tide will change the next few weeks!

Meanwhile, an adorable video, which includes, amongst other, the art of self cross-examination and diversity as perceived by Miss America:

Irving Younger

I am recently terribly addicted to advocacy books and videos, after watching Irving Younger’s 10 Commandments of Cross-Examination. I can’t wait to start on his amazing list of recommended books!

An insight into the very brilliant Irving Younger, taken from Karl Reisman’s site (my dear best friend Irving, you have to grow up to be Irving Younger!)

And then there was Irving. Even in college he had a -sometimes incongrous – flair. For a while he modeled himself on Alec Guiness, as in this photograph taken in the Lowell House courtyard:

The night we arrived at Harvard he entertained us with a complete acting out of the movie “Four Feathers”, particularly the Ralph Richardson part, and Olivier’s performance of “Once more unto the breach, Dear Friends”. as well as the Henry Vth Prologue.
He had graduated at the head of his class at Bronx High School of Science, a notoriously cutthoat place, where the grades were measured in tenths of a point, or was it hundreths. – 99.9 99.8 99.75 or something like that.

He had this belief that logic and thought could solve all problems if rightly applied. And indeed he fought to maintain that belief all his life in the face of ever increasing odds.
Years later when he decided to be elected judge in the Silk Stocking district of Manhattan, which had never had a non-Republican judge, he looked at the polling places, plotted the routes to them and put students on all four corners of the interesections that had to be crossed to get to them. Or so he later said.
Anyway he won.
On the internet right now is the testimony of a former student, discussing jury selection: “The great Irving Younger was our trial advocacy teacher at Cornell, and he’d told us to ask open-ended questions to get jurors talking.”
He is known for such things as: Irving Younger’s “Ten Commandments of Cross Examination”; “Irving Younger’s Recommended Books for the Trial Lawyer” A list including, Invitation to an Inquest : Reopening the Rosenberg Case, Counsel for the deceived; case studies in consumer fraud, and
‘How can you spot bad legal writing? Here are five signs, courtesy of Irving Younger: “the dreaded provided that” “the unnecessary herein,” …’ and so forth.
He claimed, in a television interview and also in person, that he read the complete works of Shakespeare and Dickens every year.
Here is a comparison of Irving and Joe Dimagio by Jacob A. Stein:
“The recent TV program replaying the life and times of Joe DiMaggio brought to mind Irving Younger. Younger frequently worked in to his continuing legal education (CLE) lectures references to Joltin’ Joe as the embodiment of perfection in his chosen work.
“For those who may not know of Irving Younger, by common consent he was the top banana on any CLE program. He brought the law of evidence to life with clever insights, humorous anecdotes, and inside stories. He extracted from the Federal Rules of Evidence a grand unifying theory that reconciles electromagnetism, gravity, and the speed of light.
“His hearsay lecture was unforgettable, and his lecture on the art of cross-examination was even better. Each lecture was worked and reworked, so that anything that slowed it down was trimmed off. The final product had the impact of a fine vaudeville act. As he paced the platform, he took off his jacket and rolled up his sleeves. To emphasize a point he jumped into the air and screamed the applicable rule. When he completed his four-hour, nonstop lecture, he was the fighter who had gone 15 rounds. He needed a robe thrown around him and the assistance of two handlers, one with ice water and the other with flattery.”

Legal Theory Lexicon: Hypotheticals (from the L.T Blog)

(A rather interesting passage on socratic dialogue!)

Introduction

The hypothetical (or “hypo”) is so familiar to anyone who has received a legal education in the United States that you might ask, “Can there possibly be anything of theoretical interest in the hypothetical?” And in the same vein, “We all know what hypos are.” The purpose of this post is to reflect on the “hypothetical,” with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can’t accomplish, how to construct them, and how to maneuver around them.

For more, see : http://lsolum.typepad.com/legaltheory/2010/07/legal-theory-lexicon-hypotheticals.html

Particularly, the lessons on how to better deal with socratic arguments:

Lesson Number One: Fight the hypothetical, lose the war!

The first and most important lesson to learn about hypotheticals is that you can’t get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the “hypothesis.” One way to do this is to fight the facts. “That wouldn’t happen.” Or “In the real world, it would happen differently.” Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, “O.K., but for the sake of argument, assume these facts.” At the best, you get another version of the same hypo that works around your factual objection.” As a general rule, don’t fight the facts.

Lesson Number Two: Watch for Slippery Slopes

Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn’t seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, “I see were are on a slippery slope here.” Then just go along for the ride, and when you read the bottom, just say, “Well, I see we are at the bottom of the slippery slope now!” You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, “My answer is still “Yes, but we are starting to enter the gray zone.” (If you want to be fancy, say “. . . but we are starting to enter the penumbra of the rule.” When you think that you’ve hit a truly hard case, say “Now, we are definitely in the gray zone. It’s really a judgment call which could go either way.” And then when you get to the bottom of the slippery slope, you can say, “Now, it’s clear, the answer is no.” This second strategy is simply the way to make the point that there are lot’s of legal rules that require a “Yes” or “No” answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor’s way of getting you to see this phenomenon.

Lesson Number Three: Watch Out for Cold Rules and Hot Facts

This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. “Starving babies” are a common device. But should Alice have to pay Ben damages if Alice has a “starving baby!” Of course not, you say to yourself, but in fact whether or not Alice’s baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense.” Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of “necessity.” Obviously, these two strategies can be combined: “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of “necessity” to actions for breach of contract.”

Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:

Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.

Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn’t. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided–“novel questions” where not precedent or rule is binding; (2) Rules sometimes have “gaps,” places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a “hard case.” When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:

(1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).

(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.

(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.

Hard cases are the meat and potatoes of law school.

Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren’t punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as “intuition pumps.” That is, the wild case is constructed so as to generate a particular reaction–an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating–they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work–pumping the intuition. When you are questioned about a wild case, you should simply give your reaction–your gut instinct. But it is also fair to qualify your answer: “My answer is yes, but this case is so wild that I really don’t feel very sure about my intuitions.” Wild cases are the desert of law school.