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December 2008 -- Portland, Oregon
The Virtual Tool
Familiarity (with language) breeds ...

An immensely qualified and accomplished assistant professor from my alma mater law school visited the local alumni this week, and his erudition on his topic was a joy to behold. So many terms of art (words or phrases with precise technical meanings) appeared, handy to his use and fluent in his mouth -- and, what is more, easily conveyed to the assembled lawyers through that very fluency and the rich expression that it enabled in his speech.

On the initial hearing, this display of vocabularial finesse pleased me a great deal, and made me miss the daily immersion in the language of the law; but it also triggered a familiar doubt about my ability to "keep up" with such scholars as he. That doubt held only until I found myself saying, "The message queue can not be empty so long as the SYN is hanging," and thereby reminded myself that specialized disciplines have specialized vocabularies. I feel fortunate to grok enough legal discourse to garner up the key points.

December 2005 -- Portland, Oregon
Overseas Mailbag
The (insolvable) problem of one-sided communications

A few letters without return addresses have arrived, and the inability to give the writers personalized feedback highlights the central problem of all human idea exchange: how does a person who longs to share a thought know that the other has both heard the words and gotten the point?

The first half of the problem can sometimes (not always!) be solved without assistance. How can one know that one's words are even being heard? If the intended recipient is standing in front of the speaker, that recipient could still be deaf, or distracted, or be listening to an iPod. That is, the intended recipient might not be hearing the speaker at all. A reaction on the part of the intended recipient can confirm that they're listening. Remotely, though -- across half a world and via written medium, for instance, no immediate sign of reception can be seen. And this is the simpler half of the problem.

The truly challenging part of idea exchange is verifying that the recipient and the speaker are talking about the same thing. How can one know that they have the same subject in mind? Words and language are malleable; this is part of their power and utility, but also a failing. Without some feedback mechanisim to be certain that the recipient is "getting it", the speaker might as well be hollering into a bucket. Because the recipient may not "get it". Without some way to give this feedback to the speaker, though, all the recipient can do is wonder what is meant -- and all the speaker can do is repeat him/herself and hope.

"Wondering and hoping" is not a sound approach to accomplishing something as complex and unlikely as transmitting ideas from one mind to another. And with time for correspondence being limited, envelopes without return addresses... are discarded unopened.

April 2005 -- Portland, Oregon
Anti-malpractice CLE
Land of the lost

In a room full of new(ish) lawyers,
 during a presentation about ethical pitfalls
  when the disbarment of a former attorney was discussed
   and his crime described as "stealing from his client"
   in that he failed to earn $375 of $500 prior to withdrawing the latter sum from a client's trust account
  while claiming (later) that his intention was to earn it soon;
 one of the participating lawyers exclaimed, "Is that all he did to get disbarred!?"
and the cluetrain left the station.

January 2005 -- Portland, Oregon
Federal District Court - Civil Litigation CLE
"Everybody's happy now."

Once the 2005 edition of the Trial Advocacy College was winding down on Saturday, the atmosphere during the breaks brightened. On Friday near midday, each demonstration given in the interval of lecture preceding our own exercises was intimidatingly powerful. Walking off to our separate courtrooms for the participatory portion, the crowd was subdued, and mostly quiet - save only for the person-to-person welcomes between colleagues who'd met before. I'll venture that even those interchanges were flavored with the keening tension that floated in the air.

As one of our lecturers pointed out, speaking to a crowd of your peers is even more daunting than speaking to a random group of people; we are, after all, attorneys, whose central stock of skill runs to finding faults of expression. It's what we do: we work the seams of language, one batch of us trying to stitch referents together tightly, the other tearing, teasing, tactfully sneaking through the inescapable gaps.

So preparing to speak to such a crowd or populace or body or group or assemblage or, yes, certainly, a jury of one's peers generates two urges in the reflective human. One, run; two, duck. What is sure is that whatever you say will have innate flaws, imprecisions, or inaccuracies that you could detect -- never mind that the audience you'll address has, each person therein has, a highly developed talent for finding the faults that you did not or could not. Small wonder that the air was charged.

But by noon on Saturday, with only Closing Argument left to tackle, the spell was broken and the pressure released. At the break, there was laughter, cheer, noise of a most boisterous and infectious character. Why? How? Weren't we reaching the crux and climax of the project? Didn't the whole two weeks of preparation (okay, roughly one week) come down to this next and final act of the play? Where did the pressure go, or more properly, how did it escape?

Autumn 2004 -- Scotland, UK
High Court in Edinburgh - Criminal
"Those who are informing me..."

Not every lawyer is admitted to practice before the high court. The attorney I spoke with, there representing a man during the possible revocation of his probation following a further offense, said that she was able to speak in the Sheriff's Court, where lower range offenses are tried, but that she was not able to directly speak in the High Court. She had therefore retained the services of a barrister who was capable of speaking in the presence of the court.

While we waited for her case to be called, several other serious matters came before the judge for procedural issues. The pattern became clear: solicitors who had done the preparation work sat next to the barristers at counsel table, but only the barristers addressed the court. Since the barristers were often making arguments based in facts as to why such-and-such "application" should be granted, the cogent facts were delivered from solicitor to barrister before the case was called.

But the lord judge would occasionally ask unanticipated questions of the barrister:
"You say that 'x' has not been done; well why not did they do 'y'?"
And if the barrister did not have an answer to that, there would be a muted conversation at counsel table, followed by a reply invariably preceded with:
"Those who are informing me say..."

Autumn 2004 -- Scotland, UK
Sheriff's Court in Inverness - Criminal
"But that's just not true, is it?"

The castle in Inverness is currently used for the Sheriff's Court, which makes for a fairly charming setting. After a few DUIs are disposed of (n.b. Don't drink and drive in Scotland), a car theft case is read. The attorneys are agreed that although "There is an extensive list of witnesses, my lord, but only the civilian witnesses need testify. The testimony of the police witnesses is not contested."

Whereupon Mr. Macleod is placed in the docket, and Mr. MacKenzie is called to the stand. Mr. MacKenzie had built a Subaru rally car with Mr. Macleod's help (they were co-workers and friends at the time). Then Mr. MacKenzie went on holiday and somebody nicked the car from out his driveway.

We heard the travails he suffered looking for the car, and a bit about Mr. Macleod's efforts to "help" in the search; but we also discover that the car was in fact located in a garage up north -- owned by Mr. Macleod's father. Hmmm.

In cross-examination, we hear that Mr. MacKenzie has been let go from the place where he and the defendant worked together, for problems with "inventory control" (which euphemism is decoded as "employees under his control were stealing stock").

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