Category Archives: Advanced Legal Research

ALR Student’s Corner: And Justice for All – A Review

“Don’t you care? Don’t you even care? They’re people you know? They’re just people… He’s dead! Half hour after they put him in the lockup he hanged himself. God damn it!”

We often become too familiar with our jobs. That along with losing passion, fatigue, personal issues, and conflicts may cause us to bring down our standards. Laws form the boundaries of our society, structure our government, maintain order, guarantee our rights and the freedom of private enterprise, regulate complicated affairs, and punish wrongdoers. However, what drove most of us, or at least many, to pursue a career in law is the idea of justice. Justice can be defined as the truth pursuant to the evidence, what is right under the totality of the circumstance, or what the law interprets as permissible based on the facts presented.

In “And Justice for All,” Al Pacino plays defense attorney, Arthur Kirkland, who has a reputation for having a high moral standard. He is also known to have bad blood with an authoritative judge named Henry Fleming, who is accused of raping and assaulting a woman. Unfortunately, Kirkland is forced to represent Fleming because the judge threatened to disbar him for breaking client confidentiality unless he takes the case. Because he is tied up with the big case, Kirkland asks a friend to fill in for him on a case involving a gullible transgender defendant who is accused of robbery and is petrified of how other inmates will treat him if he is convicted.

The lines quoted at the beginning of this article are from the scene where Kirkland finds out that his friend has neglected to request probation before judgment and the transgender defendant has committed suicide after being sentence to serve time. Not knowing all the facts, the friend yells, in response, that it’s just nickel and dime.

Defense attorneys make deals with prosecutors to request a favor in return, prosecutors want to be a star by convicting a judge, defense attorneys and prosecutors both fabricate or hide evidence to win the case. Kirkland says in his opening statement that the intention of justice is that the guilty people are proven guilty and the innocent are freed. He adds that the only problem is that both sides would like to win regardless of the truth, regardless of who’s guilty, because winning is everything.

The adversarial system has its merits. The procedural laws have its merits. If anyone’s been in an actual hearing or a trial in session, they would realize that nothing would be done without the strict rules governing the process, and the truth is often revealed during the cross-examinations and the presentation of evidence by the adverse parties. The courts also rule not only based on the law but on equity. The law is not only prescribed and remedies are ordered according to what is reasonable.

Then what is it that makes people fear the law yet not respect lawyers? Why do we entrust so much power to a profession that is not so trusted? Is it because lawyers are not honest?

Sam, Kirkland’s grandfather asks him if he’s a good, honest lawyer. Kirkland answers with a sarcastic tone that being honest doesn’t have much to do with being a lawyer. Sam replies back, “if you’re not honest, you’ve got nothing.” However, if all attorneys are completely honest, many defendants will not get a fair trial. We don’t want that. The issues and disputes that end up in court may be extremely complicated and confusing. Anyone can be the defendant – whether they meant to or not, and more importantly, judges will be more prone to be wrong if they only hear one side of the story. In that sense, although TV ads make you feel otherwise jaded, thank God there are plenty of defense attorneys.

If it’s not the law, and if it’s not the lawyers, why is it so difficult to achieve justice? Is the blindfold on lady justice getting in the way when she reads the scale and strikes that sword? I believe that regardless of how we might feel about the justice system we are on the right track and it’s a process in which we will ultimately build the most ideal system to achieve justice. Developments in technology, open public discussions, political debates, and new laws protecting individual rights are all examples of how we can and are advancing to construct a better justice system.

In “And Justice for All,” the defendant judge passes the polygraph although he later admits that he raped and assaulted the victim. Today’s DNA testing technology, and more advanced polygraph tests could have helped the prosecutor in cases like the one in “And Justice for All” where there were no witnesses other than the one planted by the defendant. Forensic use of DNA technology in criminal cases began in 1986, whereas the movie took place in 1979. North Carolina also permits the use of DNA evidence. As for polygraph (aka lie detector) test results, in many states including New York, Texas, Illinois, and the District of Columbia they are generally inadmissible. Some states do recognize them as admissible evidence and some permit them only to support probable cause for warrants.

Although I’m not sure how the law was back then, now no one in a courtroom would be able to shout things out, make comments, laugh and whistle without being held in contempt.

Human history is not that lengthy. Yet even after including prehistoric times, humans have been on this earth for only about 30 seconds out of a day in Earth’s time. Although we have achieved so much during the past few millennia, we are only discovering what we can do with what we have, not only with tangible materials but also with the products of our minds. As one of the greatest inventions and tools that was essential to our development and prosperity, the law and the justice system have evolved greatly, and will continue to change to one day achieve justice for all.

This film is available as part of the Charlotte School of Law Library DVD collection.

~Inchang Moses Sye, L’15~

Class Advisor – Susan Catterall, Esq.

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ALR Student’s Corner: Amazing Grace: One Man’s Fight Against All Odds

William Wilberforce’s struggle to end slavery was one that required determination, perseverance, and most of all, heart.  Wilberforce’s enduring battle for over fifteen years buttressed him against tremendous odds.  Although in the beginning of his fight many rallied their support around him, as time went on public sentiment faded, accusations were hurled, and he had to hold onto his belief in God and that freedom was fit for all.  The movie, Amazing Grace, encapsulates William Wilberforce’s steadfast and resolute stand.

As the movie opens, two unsavory characters beat a black horse in the cold and never-ending rain of England.  Befittingly, William Wilberforce came across these two men and although outnumbered and outsized, he confronted the cruelty and coldness of heart displayed.  Although the men stopped their harsh treatment of the horse, William Wilberforce’s uphill battle to end slavery in England took much more than a conversation and a chiding of deplorable behavior.

Amazing Grace is a well written, true to life movie that heralds William Wilberforce as the heroic man who spearheaded freedom for all.  The movie accurately depicts Wilberforce’s trials and the adversity he had to overcome throughout his efforts to end slavery.  Many people turned against him. He was accused of sedition and even lost his best friend for a time.  The movie addressed the mindset that Wilberforce had to reform.

In 1782, Wilberforce had no access to technology; instead, he and his supporters used ingenuity and craftiness.  During one brief scene, Wilberforce took the very wealthy on a tour around the English harbor.  Unbeknownst to the sightseers, their vessel steered right beside a slave ship and the privileged individuals had to confront the true atrocities of slavery.  Wilberforce worked within the means of his day and tried to shift public sentiment by employing popular means of his such as distributing pamphlets and writing songs.  Wilberforce was not the only one to do this. The famous song, “Amazing Grace” was birthed in the time of William Wilberforce.

John Newton, a former slave trader, penned “Amazing Grace” as a poem after he left his lifestyle of cruelty and mercilessness behind and became a monk.  John Newton was not only a transformed man, but also a mentor to Wilberforce with regard to emancipation.  Newton helped guide and steer Wilberforce to never give up the fight and to continue to stay the course.  Although this poem and many other forms of literature were written during Wilberforce’s fight to emancipate slaves, had Wilberforce taken his stand in today’s society, many more avenues would be at his disposal.

The American Journal of Legal History published an article, “Legal Borrowing and the Origins of Slave Law in the British Colonies.” written by Bradley J. Nicholson.  Obviously Wilberforce did not have access to this article since it was written in 1994, but if he had, he could have helped educate the populous on the origin of slavery in England.  He could have illuminated that the barbaric practice of slavery traced its roots back to the 1500’s in England.  Furthermore, if this movie was set in today’s time, social media could be used and instead of relying on drawings and oral accounts of the treacherous conditions, actual photographs and video could be used to show the realities of slavery.  In addition, as Wilberforce and Thomas Jefferson corresponded by letter in regard to emancipating slaves, today’s electronic communication could have been faster and would have allowed for English and American support to join forces.  Although Wilberforce did not have access to the technology that is so readily available today, he persevered and tirelessly fought for the rights of every man, woman, and child to live in freedom.

Although William Wilberforce lived in the 1700 and 1800’s, his story transcends time and generations.  This movie shares the story of a man who stood for truth and did not shrink from adversity or hardship.  This movie brings encouragement when one may face insurmountable odds.  It also portrays the realistic fight one man mounted and never surrendered until triumph was tasted.

To read the actual speech Wilberforce gave to The House of Commons, cut and paste the following link into your browser: http://www.mylearning.org/learning/william-wilberforce/wilberforces%20Speech.pdf

For more information in regard to William Wilberforce’s life, please see the links below:

Original poem of “Amazing Grace” by John Newton

This movie is part of the DVD collection which is available at the CSL Library.

~Amanda Cordell, L’16~

Susan Catterall, Esq., Class Advisor

 

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ALR Student’s Corner: What’s A Good Legal Movie Without A Little Misconduct? Professional Responsibility in The Client

I’ve been a John Grisham fan ever since my grandfather gave me my first copy of The Firm while I was still an undergrad. I was instantly ensnared by Grisham’s fast paced and intricate legal dramas that explore how traditional ideas of right and wrong tend to flex within the constraints of the law. As with any good legal thriller, Grisham’s novels are usually filled with high stakes crime, mobsters, and unsavory attorneys with questionable ethics. The 1994 adaptation of The Client is no exception to the Grisham best seller recipe, and tells the tale of a poor Memphis boy, Mark Sway, who is targeted by the Italian mafia for knowing damning information that could destroy the criminal organization in New Orleans.

Obviously, legal dramas that lack the gritty and devious excitement that comes with unethical behavior would hardly have movie goers flocking to the theaters. True to form, the plot of The Client is built upon a sleazy and cowardly lawyer’s violation of the most fundamental rule of professional conduct, attorney client confidentiality (Rule 1.6 under the ABA Model Rules). In the film, the highly intoxicated Jerome Clifford, attorney for Barry “The Blade” Muldano, tells young Mark, in a suicidal last confession, that Muldano admitted to the highly publicized murder of a state senator and buried the body in Clifford’s own back-yard boat shed. As a result, Mark is thrust into a tug of war between Barry the Blade, threatening to kill Mark if he breaks his silence, and Roy Fultrigg, a formidable U.S. Attorney demanding that Mark tell him the location of the body so that he can prosecute Muldano for the senator’s murder and bask in the political glory of a conviction.

Although the unethical misconduct in The Client starts with Clifford’s suicidal confession, it is hardly the most egregious offense in the film. As Mark begins to understand the predicament he’s in, he hires Reggie Love, a recovering alcoholic and juvenile advocate, to fend off Fultrigg and his pack of FBI lackeys. Fultrigg is the next lawyer who we see blatantly disregard the Rules of Professional Conduct when he attempts to question Mark without his mother being present, and specifically tells Mark he does not need an attorney (in violation of Rule 4.3 Dealing with Unrepresented Person, Rule 4.1 Truthfulness in Statements to Others, and Rule 8.4 Misconduct). Unfortunately for the smooth talking Reverend Fultrigg, Reggie anticipates his bad behavior and catches him in the act by having wired Mark and recorded the entire unethical encounter.

Interestingly enough (but perhaps not surprisingly), it is the film’s flawed heroine, Reggie Love, who commits the most serious violations throughout the film. After catching Fultrigg red-handed, she immediately threatens to expose him with the tape, essentially blackmailing a federal prosecutor. However, this is a minor infraction compared to what she does as the danger to Mark and herself intensifies as the film progresses. Reggie’s next major offense occurs when she barges in to the juvenile judge’s chambers and attempts to sway him in her favor based on their standing friendship (in violation of Rule 3.5 Impartiality And Decorum of the Tribunal). Yet, it isn’t until the film heats up in anticipation of the climatic discovery of the senator’s body that Reggie really throws the rule book out of the window. She harbors a now-fugitive Mark, drives him across state lines, trespasses on private property, and helps him break into Clifford’s boat shed in order to find the body all in a race against time and the advancing mafia hit men.

When looking at the characters collectively, it is clear that none of the attorneys have much respect for the Rules of Professional Conduct and instead base their actions on the ultimate pursuit of justice, whatever the cost. The battle between right and wrong and its operation within, and often times outside of, the constraints of the law is a common theme in all of Grisham’s stories. For Fultrigg, justice means a conviction for the murder of the state senator and the unraveling of an extensive crime syndicate. For Reggie, justice means protecting the civil liberties of an innocent boy who was simply in the wrong place at the wrong time. Both characters are driven by their own personal beliefs of what justice truly is, and how far they are willing to go to achieve it.

At the end of the day it’s quite clear to anyone familiar with the Rules of Professional Conduct that all of the attorneys in the film would likely be disbarred for their actions in the real world, but then again, what fun would that be to watch?

Note: The DVD, The Client, is available as part of the Charlotte School of Law Library collection.

~Christine Houston, L’15~

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ALR Student’s Corner: Erin Brockovich – A Review

As part of the Spring 2015 Advanced Legal Research class, students reviewed legal-themed movies and not only noted violations of rules of evidence, procedure and professional responsibility, but tried to identify instances in which a specific legal resource would have aided the main characters.  Following are reviews of the film Erin Brockovich:

Erin Brockovich: The Law & the Big Screen

Can you think of time where a corporation made headlines due to a major scandal? I’m sure that several probably come to mind. That scandal concern a corporation which was involved in a class action lawsuit for gross misconduct. That’s what Steven Soderbergh’s “Erin Brockovich” illustrates in a funny, emotional, yet legal kind of way. Set in rural California, “Erin Brockovich” recounts the true story of a woman and the role she played in the groundwater contamination class action lawsuit involving Pacific Gas & Electric.

Erin Brockovich (Julia Roberts) is a single mother of three who is in desperate need of a job. Like much of the rest of her life, her job search has been unsuccessful. She has just lost any chance of recovering for injuries she has sustained in a car accident.  At her wits end she coerces her lawyer, Edward Masry (Albert Finney), to give her job as a legal assistant even though she has no legal background. One day, while rummaging through files which she has been given to work on, Erin discovers medical records among real estate transactions. Even though she had no legal background, Erin knew that medical records should not be part of a real estate transaction file. She discovers that a big electric company has been inappropriately disposing of toxic waste and is now attempting to buy the land of those affected by the illegal dumping in order to cover up its wrongdoing. Unbeknownst to her at the time, the beauty queen turned legal assistant, played a part in what became one of the largest class action suits in the United States.

The lessons to be learned from this film are simple and spark empathy on the part of the viewers. Soderbergh uses the legal system and a local town hero (Julia Roberts) to convey his message. It’s about not judging a book by its cover, but about standing up for what is right, and finding your passion in life.

From a legal perspective, Soderbergh does a great job illustrating the American Bar Association Model Rules of Professional Conduct by highlighting the model rules in regard to public service and the client-lawyer relationship. Attorney Edward Masry maintained the appropriate communication with all the named parties to the lawsuit by gathering them at meetings that resembled local town halls. Masry especially made sure that all the parties agreed to be a part of the class action lawsuit as well by obtaining a settlement according to Model Rule 1.4. Soderbergh also demonstrated the obligation to take on pro bono cases and thus touched on Model Rule 6.1.

Although Soderbergh is successful illustrating the model rules in regard to some aspects of the attorney-client relationship, he falls short in other ways. For example, Masry brings in two additional attorneys who he believes will help him competently represent the people of Hinkley.

However there is no indication that Masry obtained consent to add additional counsel; this goes against model rule 1.1. In addition to failing to obtain consent, Masry did not seek approval of the fee splitting arrangement that is required by model rule 1.5. In order for the additional counsel to be brought on board, the Hinkley townspeople would have had to agree to both the additional attorneys and the matter of the fee split. Next, Masry, blatantly disregarded model rule 5.3 by failing to adequately supervise Erin Brockovich. Many times during the film, I thought Erin was Masry’s boss because she did what she wanted and told Masry what to do most of the time. Lastly, Masry violated model rule 5.4(a) which states that a lawyer shall not share legal fees with a non-lawyer. At the end of film Masry gives Erin a bonus check in the amount of $2 million dollars for her work done on the Hinkley case.

Although the motion picture rating for this film is “R” and may stop the younger crowd from watching, I would recommend this film to adults and mature teens.  This movie is for anyone who enjoys a film that has a serious undertone but uses a little humor to lighten the mood. Overall the film was entertaining and is worth seeing.

~Charmaine Gilmore, L’17~

Class Advisor – Susan Catterall, Esq.

Erin Brockovich: A Review and Analysis

In March 2000, the nation was introduced to the story of Erin Brockovich (Julia Roberts) and the 634 plaintiffs for whom she fought.  The story is set in the early 19902 and since that time, there have been various developments in both technology and specific legal resources that have made research more efficient and less time consuming than what is portrayed in the movie.   From my observation of the movie, there would have been more reliance on print resources because the internet didn’t really take off until 1996 and only gradually did publishers adopt the internet as a platform for their resources. Most of the movie takes place in 1993. Although Westlaw and LexisNexis existed, those services were primarily available only to the government, large firms and law schools. Electronic resources were not readily available to Erin and others at the time.  During the Pacific Gas and Energy litigation, using electronic sources would have been a benefit.  Electronic resources enable attorneys and their staff to conduct precise searching using both Boolean and natural language.  This means that specific terms can be used to search and to narrow or filter the results.

Although electronic resources are great, even today not all resources are available electronically. Occasionally, you must consult print resources.  This is why we still need books in the legal field.  Additionally, although electronic resources are easy to access, not all electronic resources are free.  If there had been electronic resources available during the time period that this movie occurred, I believe that the plot would not have been as dramatic because it would have taken away from some of the work that was portrayed in the movie.

While watching the movie I noticed several violations of the rules of procedure and professional responsibility.  The first violation that I noticed was when attorney Edward Masry (Albert Finney) told Erin that he was going to make the doctor pay for running into her and causing injuries.  As students, we are told not to make any promises of winning to our clients.  Instead, we are encouraged to say to them that they have a strong case and we will try to get them the best possible outcome surrounding the circumstances.  Secondly, I notice professional responsibility violations when Masry contracted with another attorney to resolve the case; he did not obtain informed consent from his clients nor did he even mention it to the clients that he was adding an additional attorney.  He failed to mention it to Erin until she walked in and saw the attorneys speaking together.

Another issue that I saw in the movie was attorney Masry would ignore the clients’ phone calls and would not call them back.  This is clearly violating a professional responsibility when there comes to attorney-client communications. There is a duty to communicate with your client about their case.  Attorney Masry rarely had any communication with the clients. Erin developed the attorney-client relationships.   The Attorney-Client relationship is one that is not delegable.  Attorney Masry also gifted Erin with a vehicle for bringing new clients to the law firm, which is another violation of professionalism.  An additional professional responsibility violation included the attorney’s unreasonable fee of 40% of the settlement.  I also noticed that an issue arose about suing the parent company which was in San Francisco.  This would be a civil procedure issue because you always want to ensure you are bringing an action against the correct party.  Although this movie is glaring with violations of rules of law, it is still a fan favorite.

~Jobyna Terry, L’15~

Class Advisor – Susan Catterall, Esq.

Note: Erin Brockovich is available from the DVD collection of the Charlotte School of Law Library.

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ALR Student’s Corner: The Rainmaker: A Review

Legal research was conducted differently in 1990’s than it is today and that difference shaped how law was practiced. Technology has advanced a great deal in 20 years and lawyers are now able to reach the vital information they need in a quicker and more precise way than ever before.

The Rainmaker , based on the John Grisham novel of the same name, is set in the mid-1990s and involves a young man, recently graduated from law school and eager to break into the profession. Rudy Baylor (Matt Damon) has come from an impoverished background and graduated from the University of Memphis Law School.  Not coming from a privileged background and lacking the connections which would have opened the doors to prestigious Memphis firms, Rudy works part time as a bartender as he applies for attorney positions.

Rudy’s struggle to become an esteemed attorney is an uphill battle from the start. The obstacles he needs to overcome include:

  • Becoming an associate for a corrupt attorney, portrayed by Mickey Rourke, whose offices are raided by the F.B.I.
  • Setting up a “practice” with Deck Shefflet (Danny DeVito), a paralegal who has failed the bar multiple times and who has an unsteady grasp on the concept of professional responsibility
  • His own lack of trial experience
  • A handful of time-intensive, destined-to-lose cases and poor clients
  • An unscrupulous opposing council (Jon Voight)
  • A trial judge who lacks patience for any case which gums up the judicial process and, finally
  • Easy access to affordable Westlaw, LexisNexis or alternatives.

The practice of law and likewise, researching the law, was different in the 1990s from what it is today.  Twenty years ago, legal research was conducted, for the most part, in print.  Westlaw and LexisNexis existed, but usually only at law schools, large firms or for courts and government.  The internet had just begun to take off about 1996 and only gradually did legal research services come to be hosted on an electronic platform.  Eventually, lower-cost alternatives to Westlaw and LexisNext also began to develop.

This lack of ease, when it comes to research, is very intriguing. We live in a world where individuals are so technologically savvy that it is amazing to think there was a time in our recent past when we didn’t have information readily available at our finger tips.

The one major resource throughout the entire film that would have helped Rudy would have been access to online research. At that time, even print research was a challenge for solo practitioners or attorneys in small firms. Attorneys who couldn’t afford reporters, digests, statutes and rule books were required to physically travel to state, county or law school libraries in order to conduct research or update their authorities. Rudy’s lack of practical trial experience was an issue for him as well.  There were many precedential cases that he was not familiar with.

Having access to the Federal Rules of Civil Procedure, Federal Rules of Evidence, or the evidence rules within the state in which he practiced would have been so beneficial to a young lawyer with no real court experience. The books that he carried around were accessible through only the index or the table of contents.  He couldn’t simply type a word into a search box and retrieve the answer. He had to do a lot of digging and looking in order to find the correct answer.

The technological developments which have made WestlawNext, Lexis Advance, Bloomberg Law, etc. more accessible have made it easier for lawyers to conduct thorough legal research. This has really helped new lawyers. In the movie, the seasoned lawyers were familiar with a great deal of top cases, rules, and procedures, and this gave them a wild advantage over the new eager lawyers.  Online information   services have helped streamline legal research by making it easier to find and retrieve relevant case law and rules.

One aspect of a case in the Rainmaker concerns stolen evidence.  Earlier in the movie Mickey Rourke’s character had told Rudy and Deck about a case in the same state with the same issues.  Today, it’s likely that Rudy would have been able to conduct his own research through one of the major subscription services or a lower cost alternative.  He wouldn’t have relied upon the memory of a seasoned attorney.

Today, as students and young attorneys, we tend to take for granted the ease by which we locate relevant cases. We shouldn’t; we’re fortunate to have access to the online services.

As the legal profession has advanced technologically, we like to believe that the ethics and integrity of lawyers have grown exponentially as well. In the movie we see lawyers who are doing the wrong thing, coercing clients and trying to get around the ethics of the profession. The ethical shame and lack of research technology shaped the movie and really showed the struggles that were faced by the legal profession back then.

Lawyers today strive for excellence and the legal profession polices itself more rigorously.  Today the advancement of legal research and the ethical stronghold of the profession have led to the greater production of outstanding lawyers, which will hopefully lead to lawyers being more widely accepted and not continuously looked at as sharks that are out for blood.

Rudy successfully wins his case, but turns away from the law.  Once he was exposed to the ugly side of the legal profession, he decided he’d had enough.

The DVD, “The Rainmaker” is available as part of the Charlotte School of Law Library collection.

~Ashley Russell, L’15~

Class Advisor, Susan Catterall, Esq.

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