hmm

Another article

Working on an article for my job, on the 5 year rule versus the 2 year rule. Actually its interesting.

So few years back, there was an outbreak of hepatitis c in vegas. It was traced, I believe allegedly, to these clinics and an endoscopy center. So, like 4k people sued. The parties worked out a protocal, an order, so that everyone could get through the system. Then last year, everyone realized they were going to run out of time, and that a bunch of cases were going to be scheduled, under the current protocal, after nevadas 5 year mandatory bar on cases that have not reached trial. Unfortunately, this 5 year rule, NRCP 41(e), is not discretionary. A judge MUST dismiss ANY case not in trial in 5 years from the date of the complaint.

Enter the 2 year rule. Like 9 years ago, LOOOONG after NRCP 41e was enacted, the legislature passed a statute that said that medical malpractice cases must be dismissed in 2 years, unless good cause is shown. There was no MANDATORY date on this rule.

So my firm, though, wait, maybe this 2 year rule was meant to, and should, replace the 5 year rule. Then, the courts could just allow all the cases to go beyond the 5 year limit because good cause is clearly shown.

Enter me: would this work? I say: No freaking way.

In a nutshell, I wanted it to work, but it just doesn’t. Courts are extremely hesitant to construe any two rules as conflicting. And really, you have to interpret them as conflicting in order to ignore the 5-year rule’s mandatory deadline. You have to say, the NRS is a deadline, the 5 year rules is a deadline, we should use the NRS one and not the 5 year one. But courts ALWAYS want to interpret rules as working harmoniously, and not abbrogating each other. It makes a lot more sense for a court to interpret the 2 year rule as effective, but still allowing the 5 year rule to kick in when 5 years go by. I mean it would be nice for the courts to use this little trick for now, but the precedent is not something the court wants.

Perhaps more obviously and simply, the NV supreme court has already decided this issue. The legislature tried extending the want of prosecution statute in the past, and the court laughed in their face. Although the legislature here is only abrogating the 5 year rule for med mal cases, it is still abbrogating the rule’s applicability. To interpret the 2-year rule as REPLACING the 5-year rule, would regardless of convenience, be a statement from the court that the legislature could curtail the judiciary’s inherent power to enact want of prosecution statutes. The legislature would be excepting the rule any way you go about it.
I did come up with an alternative, but can’t really figure out the applicability. The court has interpreted stays to toll the want of prosecution statute, so I am wondering if there is some way to stay cases in this fashion?

Work finally culinating a bit….

So, the draft I have been working on for the criminal justice section of the ABA has been finished. It will soon be submitted to entire delegation. Pretty darn exciting. A lot of my writing ended up into the proposal, as well as several pages of stats and ideas I found/created. Please no one hate me, for being part of the institution recommending that federal sentencing for child pornagraphers should be relaxed. Because really, the proposal isn’t for a relaxing of the guidelines, BUT a simple accord with justice and reason. It is ridiculous to enhance someones CP crime by 6 years because they used a computer. This runs counter to a variety of legal maxims as well as common sense. I doubt there are more than 10 people on earth who use anything but a computer for CP. There is no way that any legislative intent is being served by such an enhancement. Same thing with a variety of the enhancements, the majority of which punish and penalize actions which the criminal had no intent to commit.

If you don’t take my word for it, take the word of 80 percent of the judges out there who ignore the CP guidelines. This is compared with like 14 percent in other fields like violent crimes etc. It isn’t that we dont want CP criminal punished, we do. I do. But at the same time, the punishment needs to be congruent with the intent of the commissions etc. that decide what enhancements deserve additional jail time. We need to punish things transparantly, not say that we are stopping “selling” CP and then punish someone using a P2P program that automatically is hosting images.

Caring what other people think/comparing your life with others

Don’t do either one. Follow the advice, and I guarantee that you will be happy. Judge the content of your life in a vaccum, and I will wager anything you want at 10 to 1 odds, that you will be a happy person, content with your life, and never second guess.

 

What more could you want? I think it hilarious that the most profound and powerful truths in our world are simply not things you have to look hard for. They are simple, obvious, and their legitimacy is evident on their face.

Legal jobs

Can the economy recover so significantly that the job market lets up, in 2.5 short years? Say 3.5 if I clerk for a year? I am guessing most would doubt the optimism, but I hope so.
Recessions are a horrible time in any country. We are taught from birth that if we work hard everything will be ok (financially). I don’t think that is the case quite often. It is incongruous to believe that axiom and yet see people working hard who are not OK. Now perhaps a caveat our parents should have included was: if you work smart and work hard. Perhaps adding in something else to separate you from all the other hard workers?

Right now, 14.5 percent of the labor force is unemployed in NV. 12.5 in CA. The public defenders office had over 60 applicants for 4 positions that would have drawn perhaps 8 before our recession. Not good news…

The insanity defense…

I am perplexed by the treatment of the insanity defense both in the media and by the law. Overall, the defense is not well liked or respected, and notoriously difficult to succeffully wield. The law cites policy reasons for this treatment such as the high chance of fraudalant use and difficulty in proving the threshold needed to actually take away the ability to know the difference between right and wrong. Not to excuse anyone for their actions, I wonder if we underestimates people’s ability to truly go off the deep end, and if we are appropriately punishing that…

WOW!

Came across this writer earlier today:

” But the truth? The truth is each of us is unique! Each of us is the only person in the world like us. There has never been a person like us—not from the beginning of time. Never. Our beauty is distinct and singular. Our worth is incomparable. Moreover, there will never be another like us. No, never! Not if the human race endures forever.Why, then, would you want to discard your own beauty to concoct a poor imitation of someone else’s? Why would you even want to be like someone else rather than celebrating your own one-of-a-kind self? The fact that we are unique and therefore incomparably beautiful is a truth we have not been permitted to see. It is as if our eyes for our own beauty have been burned from our piteous skulls, and so far as seeing ourselves, we are blind.”

Law and ideals

So people say: “ideals are for the young, those brave sailors of life’s waters who have not yet had their passions crushed by the waves of reality.” Ok so I made that up. But the point is common: that ideals are left at the door to old man (or woman) crotchety-ness. When we get older and wiser, our idealism leaves with the ability to hold urine for longer than 10 minutes and the ability to use a “hip” euphemism.

I say nay. I have talked with several lawyers who still have their idealism organ fully intact and operational, and I fully plan on keeping mine into ripe old age.

In our semester introductary material for contracts, (and holy crap there is a lot of it for that class) I came across this quote and like.

“technique without ideals is a menace.” and “[i]deals without technique are a mess.”

Public Defender’s Offfice

So I am done with the public defender’s office. It was an eye-opening experience. First thing: I would take one of the CC PD lawyers over any private lawyer in town. There are some damn fine lawyers in that office. I was blown away more than once at the intellegence and skill wielded by these folk. I call fools anyone who thinks that these lawyers are anything but excellent (a sentiment I observed more than once in the courtroom).They have a heck of a caseload, but it is manageable. Fact: you will not get every single element of your case researched by a team of clerks. This can result in you not being acquited when you would with a decent firm behind you. That is inescapable. You need serious money to get to this point, and the chances are still high that you won’t get any better result with a private firm. The truth is, in the majority if cases, in light of the relationship the PD has with the various DAs in their track, and the other random advantages the PD has being part of the system such as special jail access etc., you are better off going with them. Surprising but true.

I learned more than I can put in words. This was my first real legal experience, and it was extremely rewarding. All I can say is that I realized with startling clarity how multifaceted a good lawyer is. The written word, spoken word, and overall bearing all have to work in tune to create a presence both in the court room and, perhaps more importantly, in private with clients and other council.

I would also like to say at this point, there are LIGHT YEARS between run of the mill lawyers, and fine lawyers. LIGHT YEARS. The difference between a good lawyer and a bad one, is like the difference between moldy white bread and fresh baked San Francisco sourdough.

TRUTHS continued…happiness and all that jazz

Finally, reduce stress and increase satisfaction and happiness. Cant say enough about this, and frankly, still working this baby out.

One thing I have realized, is that to be happy, you HAVE HAVE HAVE to have strong empathy. If you dont have it, get it. You need to have that moment where you step back and look at the people around you, for an example people you go to law school with, and say “these are human beings just like me, and no matter how much I screw up today or am a failure or waste my time, if I can make their life better I am doing something worthwhile.” once a day at least have this moment.

Let me say something, maybe to my future self I hope: get a damn good idea of the human condition. KNOW, IN YOUR BONES, the truth that we are all on the same boat riding the current down the river of life. We are all in the same boat people. We are all dealing with failures, and tragedies, and happinesses, and defeats, and losses, and inadequicies. We all need help. We all need friendship, and occasional kind words, and encouragement. We are all going to make bad choices. We are all going to die.

Know this stuff. You cant be happy unless you realize that below the surface, we are all people, and deserve to be treated with respect and kindness. I will say, I didn’t take this lesson to heart this last few months. I cant tell you how many times I look back now, and think of lost opportunities I could have made other people’s lives a bit better, done what I should have and knew was right. And I dont care if I get straight As, it wont be worth not being the good guy.

I dont care if I fail law school, and following my dismal plummet, fail at everything else I touch for the remainder of my days. I need to be able to go to sleep every night, as well as my final night, knowing in my bones and soul that I was the good guy, the guy I always said in my mind as I was reading fantasy and mysteries growing up I would be. That I was the one that felt the pull of the easy path, the pull of the road more traveled, the tug and comfort of superiority and material wealth: and ignored the feeling as if it were indigestion.

Screw being smart or being better. Embrace your weaknesses and strengths, and use them to be something that, if you were to honestly describe to your children, would not embarrass you, in fact might actually make you proud. In fact might be a description of a person you would hope they might grow into.