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Interim Commission on Courts

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Following a series of interim study committee meetings, the Commission on Courts has issued a final report (pdf). It makes a series of recommendations to the General Assembly:

1. Eliminating a trial court’s ability to grant an adoption where there is an appeal pending of a decision to terminate the parent-child relationship.

2. Allowing appointment of a second magistrate in Vanderburgh County.

3. Making a variety of juvenile records public and not subject to the current confidentiality requirements: “(a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other.”

4. Giving trial courts more flexibility for the appointment of psychologists, psychiatrists, and physicians in insanity defense cases.

Trial by Jury

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I had a jury trial this week, and I’m happy to say that I won. I don’t really do very many of them. They are really an inefficient way to resolve disputes — except for maybe the alternatives are worse. When you think about it, the civil jury trial is our substitute for what, historically, was resolved through raids and blood feuds. People have a dispute. At least one side typically thinks he/she/it is entitled to something someone else has (usually money); and they simply cannot agree on a resolution.

Now, most of these things don’t go to a jury trial – at least not for me. I am normally either able to get the case thrown out on a motion of some sort or help reach a settlement between my client and the other party. And, particularly if your motions are denied, the structural pressure to settle cases is really pretty significant. It’s surprisingly awkward to go to a court ordered mediation and offer nothing or next to nothing. You are made to feel rude and like you’re wasting everyone’s time. Very often mediation is a useful tool — but when you are determined to have your day in court, it’s an expensive hurdle to be cleared.

The jury trial itself is, for the lawyers anyway, a very labor intensive process. I have a lot of respect for those litigators who do that kind of work week-in and week-out. The hours of preparation and organization required for even simple cases is fairly significant. When I do have one, my wife and I end up commenting on what a problem it would be for our family life if I was doing these kinds of cases more frequently.

Typically, the structure of a civil jury trial process will begin with voir dire – the parties have been given a jury list a couple of days before of the panel of potential jurors. Different courts have different approaches, but for Indiana state courts, I think it’s fairly common for judges to briefly introduce the matter to the jurors and thank them for being part of the process. The judge asks some very preliminary questions about basic items that might disqualify a member of the panel from serving as a juror. Then, he gives the lawyers greater or lesser amounts of latitude to question the jurors.

Ostensibly the process is for lawyers to probe jurors for information that might reveal a juror who is unable to evaluate the case in an unbiased fashion. All the strategy books, however, pretty much tell you that, even now, you should be framing and arguing your case — softening up the jury to see things from your point of view. In my mind, the voir dire is in some ways the most awkward because it is the least structured. And first impressions are so important – there is a decent chance the jury will be fairly persuaded before you even get to the evidence.

During the voir dire process each side gets three peremptory challenge where they can dismiss a juror for pretty much any reason. Each side is trying to divine which jurors will be favorable to their case through inexact proxies — “people who do this kind of work have these kinds of tendencies” and so forth. (Incidentally, the juror questionnaires have a question about favorite TV shows – “The Big Bang Theory” is a runaway winner.) For civil cases, once you have six jurors and an alternate, the rest of the pool is dismissed and the jurors are sworn in. (The job of an alternate has to be so frustrating — you aren’t allowed to participate in deliberations. That would be torture for me; particularly if I felt like the rest of the jury was missing something important. I like to make my opinion known. Hence, this blog.)

After that, the jurors are given the preliminary instructions – a basic introduction to what the case is about and how the process works. Then the parties can give opening arguments — which is and isn’t a misnomer. Technically, I think you aren’t so much supposed to “argue” as simply explain to the jury what sorts of evidence they will see. But, of course, you are framing that evidence in a way that supports your case; so there is an argumentative element in there by nature. There isn’t a bright clear line where descriptions of the facts stop and impermissible argument begins.

Then the plaintiff opens his evidence. This is witness testimony and documents. Depending on the case, introducing evidence in this way, may not create the most comprehensible narrative for the jury. If there was a series of events, you won’t take the events one-by-one, getting the account of each witness for that event — rather, you will get what one witness knows about all the events before moving on to the next one. The jury might have to wait for a couple of days to hear what another witness recalls of a particular event.

Generally, if a party calls the witness, that party’s questions will have to be more open ended; relying on the witness to recall and supply details — occasionally straying into unanticipated territory. This is followed by cross-examination. On cross, you can ask leading questions – which leads to much more narrowly focused responses. The attorney doing the cross examination does most of the talking, with the witness often just confirming or denying what the attorney says.

Technology in the court room has improved. One thing I really appreciate in the Tippecanoe County court rooms is a sort of opaque projector that displays documents on a big screen to the jurors. I think that’s very helpful when you are asking a series of questions to a witness about a particular document.

After the plaintiff goes through his or her witnesses and documents, the plaintiff rests and then the defendant goes through his or her evidence in much the same fashion. After the defendant closes, the plaintiff may or may not put on some rebuttal witnesses. (There were none in the case I recently concluded.)

Once the evidence is concluded, the next step is to hammer out the details of the final jury instructions. This is done outside of the presence of the jury and seems like part of the process that has a lot of room for improvement. Ostensibly, I think, this is done at the last minute because the final instructions have to be based on the facts that were introduced during the presentation of evidence. So, the sides exchange the instructions, often at the 11th hour. They are based on model jury instructions. However, a party is also entitled to have non-pattern language included if it is a correct statement of the law, implicated by the facts of the case, and not otherwise covered by the rest of the court’s instructions. So, quite often, you are faced with language that is supported by case law you, as an opposing party, only have very limited time to review. And the clock is ticking because you have a jury waiting. Even if you send the jury home for the night, you are racing to craft and present arguments about what the law is and is not over the course of an evening and perhaps the next morning. The court, with the help of the attorneys, then has to merge at least three sets of instructions – the courts and each party’s. (More if there are multiple defendants). The court has to throw out the instructions that are duplicates, exclude the ones that aren’t permitted, and modify others if they partially misstate the law or partially duplicate others. It is quite an editing job done on the fly. However, I think that much of it could be done earlier in the process — this would require the court to make earlier (if potentially preliminary) declarations about what the law is and would reduce a certain amount of potential gamesmanship by the parties.

After the instructions are settled upon, the parties make their closing arguments. The plaintiff goes first, followed by the defendant, followed by rebuttal by the plaintiff. My client thought this was very unfair that the plaintiff got to go first and last. In most cases, you can’t help but feel like the jury has made up their mind. Probably, you’d be just as well saying something like, “thank you for your time, please treat us fairly.” But, I have never had the confidence to pull that one. I tend to walk them through an outline of why my opponent’s version doesn’t make sense and mine does. I tend not to have a flair for emotional appeals; but I think I’m fairly good at showing the jury the world from my client’s perspective.

Then, when each side has made their arguments, the judge reads the final instructions, and the case is handed to the jury. (See this post if you’re interested in my experience as a juror.) Turning the case over to a jury is nerve wracking for a lawyer. You have been in control of the case for so long; have prepared so much; and now it’s out of your hands. A group of people you have only known for a couple of days will decide the outcome. You have no ability to address their arguments or correct any misunderstandings they may have. If they forgot about a key piece of evidence you presented, you have no way of reminding them of what it was. You are in limbo while the jury is out. You don’t know how much time you have – whether you and your client should just hang out or if you should go about your business until the court calls you to let you know the jury has returned with a verdict. You try to guess whether the time the jury has spent deliberating is a clue as to success or failure.

In this last case, the jury returned very quickly. I had gone to the Black Sparrow and ordered a beer and a pizza. It was about 1 in the afternoon, and the lunch shift waitress remarked that she had never seen me order a beer during the day. I told her this was a different sort of day. I’d had about half of my beer and two pieces of pizza when I got the call that the jury had returned. As a defendant, this was good news because it seemed unlikely that the jury had had time to do any math. I was cautiously optimistic, but still had to prepare my client for bad news. I also like to give my client instruction on how to comport themselves with either good or bad news. In this case, there was a tremendous amount of bad blood because my client felt like the opposing party was flat out lying about him. There is often a difference in perspective for any event, even where both sides are trying their level best to remember and tell the truth. This was not one of those cases. Someone was obviously lying. I very much believe my client was telling the truth – but I’m hardly unbiased and, at the end of the day, I wasn’t there when the event happened.

My optimism about the verdict notwithstanding, there was still a huge amount of anxiety during that period when you arrive at your spot in the court room and watch the jury file in. At this point, you get to see which juror was selected as foreman. Again, you try to figure out whether that is a good sign or a bad sign. The foreman hands the verdict form to the bailiff who hands it to the judge. Now the anxiety hits a crest. Fortunately, in this case, the jury found that my client was not at fault. Even though I was very happy with the result, it’s important to temper my enthusiasm at that point. Because, on some level, I felt bad for opposing counsel. These are guys you work with year in and year out and they worked every bit as hard as I did. I don’t know for certain the details of their contract with their client, but I suspect they were working on contingency and probably won’t get paid for all that work. Now, I know my client – angry about being dragged through the whole process – does not share my feelings about opposing counsel. But, I’m part of the system. I know that plenty of people on the other side of my cases probably have hard feelings for me.

The following days are spent recovering from the physical impact of the trial. First off, I need plenty of sleep for a couple of days. Then, there is the post-trial let down to deal with. Even though I won, there will inevitably be an emotional crash. Because that focus of so much hard work has suddenly been removed, I’ll feel out of sorts for several days. But, before too long, I’ll shake it off and have another war story in the books.

Sex & Marriage in Japan: The Economics of Children

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The Guardian has an interesting article on sex and marriage in Japan – seems Japan’s young people aren’t much interested in either. This is a topic where it’s tempting, perhaps inevitable, to project one’s own interests and biases on to the facts. But, as I read the article, it mostly boils down to the economics of raising children.

In our agrarian past, I am told, having kids was an economic advantage to the family. You didn’t have to sink a bunch of resources into their development before you could put them to work in the fields and they would earn their keep. Early industrialization was much the same with young kids working in appalling conditions. Now, even if they could be put to work at an economically advantageous age, we don’t have the stomach for that kind of child abuse. Probably for the best.

There was also a period of time, apparently, in our industrial and post-industrial society (and, for all I really know, this was mostly the 40s, 50s, and 60s) where the income from one spouse was sufficient to support the entire family. Even though kids required a lot of resources and were probably not, from a financial standpoint, even a break-even proposition; at least the family could afford to have one person devoted to running the home and raising the kids. Now that’s becoming less the case with two incomes being more likely necessary to support a family.

In Japan, the expenses are apparently such that affording a family requires a grinding work schedule – if you can find work; but, more likely, requires two incomes. And, apparently, employers in Japan aren’t terribly interested in employing women with children on account of them not being as willing or able to devote themselves as fully to a job with a grinding schedule.

I’m not sure if the article explores the attitudes about two-income, childless marriages among young Japanese people; but, over all when it comes to romantic relationships, they are apparently deciding that the juice isn’t worth the squeeze. (“Mendokusai” translates roughly to “too troublesome”.)

The article mentions the phenomenon called the soshoku danshi which translates loosely as “herbivores” or more literally as “grass eating men.” These are men who shun traditionally masculine roles; eschewing pursuit of sex, women, and the life of the family-supporting salaryman for more self-centered (and often more “feminine”) pursuits.

The sense of crushing obligation affects men just as much. Satoru Kishino, 31, belongs to a large tribe of men under 40 who are engaging in a kind of passive rebellion against traditional Japanese masculinity. Amid the recession and unsteady wages, men like Kishino feel that the pressure on them to be breadwinning economic warriors for a wife and family is unrealistic. They are rejecting the pursuit of both career and romantic success.

“It’s too troublesome,” says Kishino, when I ask why he’s not interested in having a girlfriend. “I don’t earn a huge salary to go on dates and I don’t want the responsibility of a woman hoping it might lead to marriage.” Japan’s media, which has a name for every social kink, refers to men like Kishino as “herbivores” or soshoku danshi (literally, “grass-eating men”). Kishino says he doesn’t mind the label because it’s become so commonplace. He defines it as “a heterosexual man for whom relationships and sex are unimportant”.

Women, for their part, apparently view marriage and children as a death sentence for their careers and the beginning of a life of drudgery.

Romantic commitment seems to represent burden and drudgery, from the exorbitant costs of buying property in Japan to the uncertain expectations of a spouse and in-laws. And the centuries-old belief that the purpose of marriage is to produce children endures. Japan’s Institute of Population and Social Security reports an astonishing 90% of young women believe that staying single is “preferable to what they imagine marriage to be like”.

Relationships, love, marriage, and children don’t make economic sense in Japan; if the statistics in the article are to be believed. Add to that on one side, technology that substitutes to some extent for the physical and psychological benefits of such relationships and, on the other, a relative absence of the types of religious and social pressures that push young people toward such relationships where they are beneficial for society at large even if they are not especially advantageous to the couples/parents as individuals. (Economically, you probably come out a winner if you are childless but the rest of the country produces and raises plenty of children paying into a tax structure that benefits you in your old age. So maybe there is a Tragedy of the Commons aspect to this.)

There is probably cautionary value for the United States in this. My preference would be to structure our economy in such a way that people can afford kids — there will always be sacrifices (and, it must be said, non-fiscal rewards) associated with having children. But there are limits to what people will do. But, our culture being what it is, I expect the more culturally popular solutions will be to, as much as possible, stigmatize the technological substitutes and to amp up the social pressures that keep the whole system limping along.

Coaching

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So, I coach both of my kids’ soccer teams – head coach for Cole & assistant for Harper. Maybe it’s a cliche, but it really is a very rewarding experience. I’ve seen a lot of these kids come a long way in their skills over the years.

The recreational league we play in ends the season with a year-end tournament. One of the toughest parts of coaching for me is that moment when your team has lost that last tournament game; and the kids recognize that the season is over. None of them likes losing, but honestly what seems to get them the most is that the season is finished. They love the team and they love playing. Seeing those forlorn faces, some misty, some openly crying really makes you feel for those kids. I give them a little speech; compliment them on how hard they worked, remind them what a great season we had, and thank them for the opportunity to coach such a great bunch of kids. And it’s true. But, at the end of the season, after all those games and hours of practice you know exactly how those kids with the hangdog expressions feel.

I’ll enjoy it while I can. Soon enough, they’ll drift off and start to specialize in different sports and hobbies. The ones who stick with soccer will surpass my ability to be a good coach. And I’ll have a wall full of team pictures on my wall.

Tea Party and Race

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A Political Season has a thoughtful post on the Tea Party. They quote extensively from Britt Hume’s thoughts on the Tea Party caucus and its motivations when driving the latest shut down/debt ceiling crisis. From the Hume quote:

“It was a hopeless strategy that has not only failed in its stated goal, but helped send the Republican Party to its lowest favorability ratings ever. “In conventional terms, it seems inexplicable, but Senator Cruz and his adherents do not view things in conventional terms. They look back over the past half-century, including the supposedly golden era of Ronald Reagan, and see the uninterrupted forward march of the American left. Entitlement spending never stopped growing. The regulatory state continued to expand. The national debt grew and grew and finally in the Obama years, exploded. They see an American population becoming unrecognizable from the free and self-reliant people they thought they knew.

But A Political Season says that Hume is dancing around the elephant in the room which is that the “unrecognizable American population” is code for a browner American population.

I remain uncertain about the extent to which race motivates the Tea Party. I tend to think Tea Party opponents are probably a little quick to call racism. But, it’s undeniable that the Tea Party is a lot whiter than the nation as a whole and that the concerns about the debt, if they existed, were not nearly as vocal until after the election of a black President.

I suppose the answer is that it’s complicated. The Tea Party sympathizers with whom I come into contact are not people I would consider racist. They tend to be educated people with strong opinions who regard poverty as often the result of a problem of motivation, foresight, and decision making rather than a structural issue. Their problem with debt and spending isn’t really about money but about priorities — money spent on national defense and debt from tax cuts are unremarkable, but money spent on poor people is objectionable.

But it’s not all poor people. Taibbi pointed out back in 2010 that it’s poor people who are not “them” that’s the problem:

Vast forests have already been sacrificed to the public debate about the Tea Party: what it is, what it means, where it’s going. But after lengthy study of the phenomenon, I’ve concluded that the whole miserable narrative boils down to one stark fact: They’re full of shit. All of them. At the voter level, the Tea Party is a movement that purports to be furious about government spending — only the reality is that the vast majority of its members are former Bush supporters who yawned through two terms of record deficits and spent the past two electoral cycles frothing not about spending but about John Kerry’s medals and Barack Obama’s Sixties associations. The average Tea Partier is sincerely against government spending — with the exception of the money spent on them. In fact, their lack of embarrassment when it comes to collecting government largesse is key to understanding what this movement is all about[.]
. . .
[T]he Tea Party doesn’t really care about issues — it’s about something deep down and psychological, something that can’t be answered by political compromise or fundamental changes in policy. At root, the Tea Party is nothing more than a them-versus-us thing. They know who they are, and they know who we are (“radical leftists” is the term they prefer), and they’re coming for us on Election Day, no matter what we do — and, it would seem, no matter what their own leaders like Rand Paul do.

I guess I’d say that the Tea Party movement is incidentally about race but not primarily about race. Brown people aren’t part of the “us” – but there are plenty of white people who aren’t part of the “us” either. The blackness of the President isn’t, I don’t think, why they hate him. It’s often a handy cudgel (Muslim/Kenyan etc.); but they would have abused a Democratic President regardless of race. For example, Bill Clinton’s opponents weren’t really all that concerned about sexual indiscretions by politicians.

In any event, the Tea Party did not cover itself in glory during this recent bout. It will be interesting to see how the mainstream Republicans and the Tea Party Republicans interact going forward.

Public Access to Government E-mails: Documents or Communications?

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Scott Tibbs has a post over at Hoosier Access about public records that got me thinking. The question is whether all e-mail by government officials about government business should be subject to the open records laws even when conducted on private e-mail accounts. (And I also read Tibbs to argue that we should avoid the distinction altogether by simply having public officials conduct all public business on their public accounts).

What got me thinking is that this has parallels to the copyright question I wrote about (pdf) a long, long time ago. In that case, I was (following the lead of John Perry Barlow) asking what we are really protecting, the wine or the bottles? Copyright law uses limitations on duplicating the physical object as a proxy for protecting the work itself — the content contained in the physical object. That worked well enough for analog technology where physical limitations made copying difficult. In the digital age, things are different. Digital content flows more like liquid instead of the solid of the analog world.

So too, I think, with this question about public records and e-mail accounts. Public records laws try to grapple with electronic media, but the whole structure is set up around the concept of physical documents located on-site at a government facility. And it brings into focus whether our interest is primarily to let the public look at the government’s stuff or primarily to look at the communications between government officials and the rest of the world. If it’s the latter, how far does it go? Make officials speak on open phone lines — maybe a live government phone channel feed on the Internet? Sounds a little ridiculous; but, what lines are we drawing and why?

And, by the way, I’m not necessarily disagreeing with Mr. Tibbs in any real way at this point. Just noodling with the concept here.

Passive Aggressive Governance

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One of the recurring themes in this federal government shutdown are complaints about what is shut down. The executive branch has shut down some of the more visible, relatively popular and, I presume, relatively inexpensive government services. Monuments are one example. Another one I’ve come across was the census.gov website being shut down. The explanation, in effect, is, “Hey, a shut down is a shut down. Non-essential services are suspended.”

There is probably is a political component to shutting these things down, and the President probably could keep those things open if he had a strong desire. But, it puts many of his opponents in an awkward situation. Those given to un-nuanced “small government” rhetoric suddenly find themselves protesting that particular government services are necessary and inexpensive. It’s difficult to shift from “government is wasteful, sucks, and can’t do anything right” to “How dare you shut down this piece of government; people need it, and, besides, it doesn’t cost very much.”

After this is over, it would be nice if it resulted in more nuanced rhetoric about government from politicians. A unicorn would also be nice.

Ramblings

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My schedule has been pounded by work and family obligations so, I recognize, my blog has fallen into a state of neglect. I honestly don’t know if anything interesting is going on in state level politics. Given the time, I’d wander around the General Assembly’s interim study committee sites and read the minutes to see what they’re up to.

The federal government shut down is the main bit of news that has penetrated my consciousness. I know that Reps. Stutzman and Rokita had very bad days but, due to how their districts are drawn, are at no political risk for their actions and statements with respect to the shutdown. And that probably hints at why our federal government in particular is so dysfunctional – where a lot of politicians have more to fear from primaries than general elections, you won’t get a lot of attempts to govern from the middle; but, rather efforts to appease the more zealous of your constituents.

Yesterday, I had two minor reminders of the shut down – 1) The Southern District of Indiana issued orders staying proceedings in (most) civil cases that involved the United States as parties because the reduced levels of the federal attorneys did not permit effective representation in those cases. Also, I went to look up something from census.gov but that site is down.

Despite my protests about a busy schedule, I did, nonetheless find time to watch some football on Sunday. The Colts appear to have put together a legitimate team. Great game against the Seahawks. The Enver v. Allas (no “D”) game was entertaining as well: 99 combined points!

Also too, Daylight Saving Time should end by this time of year. Extending it into November is silly. I suggest, if we’re going to do it, that DST end at the equinox (September 21 or thereabouts).

Mixing Policy and Politics: Keep it simple, but not *too* simple

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I always remember a quote from David Eddings when it comes to nuance versus simplicity:

Belgarath: “She complicates this whole business, and I don’t like complications. I like nice, simple situations and nice, easy solutions.”

“Good and Evil?” Durnik suggested.

“That’s a difficult one, Durnik. I prefer ‘them and us.’

That came to mind when I read an editorial by the New York Times about Rep. Stutzman (IN-03) and his government shut down quote:

“We’re not going to be disrespected,” Mr. Stutzman said on Wednesday. “We have to get something out of this. And I don’t know what that even is.”

The New York Times opines that Stutzman’s statement reveals that this “crusade, which is ostensibly about dismantling health care reform but is really about humiliating President Obama and the Democrats, about winning something — anything — just to show a group of angry constituents that they are waging a fight against a hated political nemesis.” (The Wabash must be carrying some kind of foot-in-mouth virus; Rep. Rokita also stepped in it over the past couple of days, earning him a mention on The Daily Show).

Mixing politics with policy is nothing new. It’s the bread and butter of the system. Democrats definitely do that too. But it looks like Republicans have over played their hand on this one; and Rep. Stutzman’s statement suggests that the mix is awfully light on the policy.

Anti-Science Anti-Vaxxers Endanger the Herd

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Vaccination isn’t a personal choice; it’s a choice you impose on others. NPR has an article entitled Vaccine Refusals Fueled California’s Whooping Cough Epidemic.

Apparently they tracked of whooping cough to times and places with high numbers of personal belief vaccination exemption applications:

They found that people who lived in areas with high rates of personal belief exemptions were 2 1/2 times more likely to live in a place with lots of pertussis cases.

Also, according to the story, when a community drops below a 95% vaccination rate, the community loses herd immunity and this exposes vulnerable elements of the population — infants for example — to the disease.

This sort of thing illustrates another limitation on the individual model of citizenship. For a great many issues, viewing the citizenry as nothing more or less than a bunch of discrete individuals and shaping policy accordingly is appropriate. But there are also plenty of cases where the consequences of individual choices are imposed on others in a way that the law is not equipped to address very well.

If my infant incurs thousands of dollars in medical bills to treat whooping cough because a critical mass of Oprah watching, Jenny McCarthyite antivaxxer moms decided to deprive the community of herd immunity; who do I sue?