Something has happened over the last 2.5 years, as Saturn transited my Sun, Neptune, my Midheaven, and now Venus.
I learned to think like a lawyer, at least I started to do so. I hope to improve and get better. I paid a lot of money and spent a lot of time and energy doing it, and now, I have one more semester left and one bar exam before I can become a practicing attorney.
I haven’t posted in a while due to school and work constraints, but also the fact that I don’t think about it a lot during the day unless I’m working. My aspirations have changed, because I am really, really fortunate to have gone to law school, even if I never become rich, even if I have to work 100 hours a week. There is nothing to replace an education in law. I think differently now.
The quote from Shakespeare, “The first thing we do is kill all the lawyers,” was said by a ruthless killer who intended to overthrow a rightful ruler. People hate lawyers, but most of the people who feel this way don’t seem to actually have a reason to feel this way. There are unscrupulous lawyers, but it seems that the reason people hate lawyers is that they think lawyers get rich off of doing something anyone can actually do.
After all, don’t lawyers just read and use semantics and linguistic trickery? And who is not capable of that? After, can’t most people speak and read?
Everyone hates a lawyer until they need one, and there are lawyers who rely on semantics and linguistic trickery. However, if this were true, then I think more pro se litigants would prevail. I have worked with parties who represented themselves who didn’t even bother to learn what laws applied to their case, who came to me — and not the court — to make requests of the court, as if I was just going to run on down to the Daley Center for them, as if I even could do that.
I have met people who have successfully represented themselves based on the merits, because their research and briefs were crap, but actually thought that it was their “lawyering” that did the trick. “On the merits” means that an opinion will be rendered based on the facts plead and the applicable law, such that if a party has a strong enough case, any intellectual acrobatics is just gravy and any poor writing won’t deter a just outcome. The problem thus becomes that they think they found some sort of loophole to hiring a lawyer or getting a formal legal education. However, just because you cited the Constitution and a bunch of Constitutional cases that were barely relevant to one issue in one instance doesn’t mean that doing it again is going to help in your favor. [You may also get a judge who has less patience with litigants who don’t understand procedure and is less willing to help.]
I have refused to ghostwrite for pro se litigants because they wanted to hire me to ghostwrite demand letters, answers, complaints, and other briefs that were either fraudulent, based on a misunderstanding of the law, or improper in some other way, like citing irrelevant case law or statutes. Working for them could put my own career in jeopardy if they turned around and said that this third-year law student said it was okay, or that this law student tried to advise me, or that in the course of ghostwriting for them, something I did constituted counseling. I can’t advise them, and I can’t ghostwrite anything that makes an assertion of law in Illinois unless I never want to be licensed.
As if they would listen to me anyway. About a year and a half ago, I was contacted by a guy who wanted to do defend himself in a patent infringement suit, and just needed someone to write briefs for him. The trouble was that while he may have understood patent law (and I’m pretty sure he knew it much better than I did), he didn’t know the rules of civil procedure, so he was insisting to get help with a motion that 1) was inappropriate at the time 2) would likely never be granted, and 3) if filed, would make him lose his opportunity to file other, more appropriate motions. I hinted that he was wrong, and he took great offenses, explaining to me why he wanted to instead file the specific motion he wanted to file.
This defendant wanted to file a motion for sanctions against someone he said was a patent troll, and this would be his first appearance and done in lieu of first filing a 12b motion or an answer. He explained to me why he thought the plaintiff was a patent troll (but honestly, based on the four elements of a patent, I couldn’t tell how his design differed from the patented design, because they looked like the exact same thing doing the exact same thing, designed for the exact same purpose). He explained how the court should punish the patent troll because they do this all the time, blah blah blah, and they need a message sent to them, etc. etc.
I didn’t get hired, which is fine. I wonder what happened with his suit. The thing is, it’s not illegal to be a patent troll, and as far as I could tell, this was a complaint made in good faith…legally speaking, despite whatever social ill a patent troll causes. I also don’t know if the plaintiff is a patent troll or just a patent holder that is not the inventor. However, if there’s no finding in court that the complaint was in bad faith, then the court can’t place sanctions because of the pleadings, and there will be no finding that the complaint was made in bad faith unless the defendant moves to dismiss or moves for summary judgment, because unless otherwise denied or ruled upon in favor of the defense, all well-pled facts will be accepted as true. Even if this is a vexatious lawsuit, the court still has to determine that before doing what this guy wants, and you don’t fight vexatious litigation with vexatious litigation. However, I can’t tell this guy this stuff because I’m not his lawyer — I’m not a lawyer — and to do so might create a relationship I don’t want to have, so I have to let him shoot himself in the foot until he decides to hire himself a patent attorney.
This is not trickery or linguistic acrobatics: this is the synthesis of a series of rules that I learned that I have to obey to file in a federal court. I’m a 3L, and I have so much more to learn, but peering through the veil that is law in America, I wonder why most people don’t know this stuff, or don’t seem to know that there are actually rules in court.
Of course, I could have just been a pal, taken the guy’s $3000 and spent a month writing his crappy briefs, trying to find case law that somehow supports the thing he wants to do though I’m pretty sure I won’t find it. I mean, who am I to judge? Except that’s exactly what I’m expected to do.
I think what most people know about civil law they learned from television and movies. That’s mostly what I knew until I met lawyers and read about the law, and that there are no Jack McCoys in real life. Of course, we’re not taught this stuff in school, and it’s entirely possible to get through compulsory schooling and even college and have no idea how civil law works, or why Americans sue, or what judicial rulings are for. There really is no such thing as “judicial activism” or “legislating from the bench”; that’s just the judiciary doing their job and exercising their powers and some Republican not liking it.