“If you’re going through hell, keep going.”
What’s inspiring me as I study for the New York bar exam.
Category: Law
There is a scene in “Annie Hall” in which Woody Allen’s character has had enough of a stranger behind him in line at the movie theater who opines to a companion about the work of Marshall McLuhan, the theorist who coined the phrase “the medium is the message.”
“I happen to have Mr. McLuhan right here,” Allen, exasperated, says to the stranger before escorting McLuhan himself from the wings to address the man directly. “I heard what you were saying,” McLuhan tells him. “You know nothing of my work.”
As satisfying as the smackdown may be, knowing something about the thing one aims to deliver an opinion on doesn’t seem to check the instinct of pundits in a society that has a plentitude of them. “When uncertainty abounds, pundits strive to differentiate themselves from their peers,” James Surowiecki writes in the latest issue of “The New Yorker” in a column that examines the punditry that has accompanied the mystery of Malaysia Air Flight 370 and the push to explain what might have caused the plane’s disappearance.
Surowiecki cites research by the Penn psychologist Philip Tetlock, who found, according to Surowiecki, “that experts who claimed to be more certain are more in demand in the media, even though they were less likely to be correct.
One of the things I love about being a reporter is having license to ask questions, including being able to ask someone who offers an opinion about their basis for it.
I’ve been thinking of that recently while reviewing the Federal Rules of Evidence, which address directly the qualifications of experts whose testimony a party proposes to introduce in court. Before someone whom a party presents as an expert can deliver her opinion, the law wants to know the person’s qualifications and the connection between her expertise and the opinion she is being asked to render. The law, like Woody Allen’s character in “Annie Hall,” does not suffer opinions lightly.
In general, a party to a lawsuit who offers the testimony of an expert may do so provided the following the party satisfies the following conditions:
• The subject must be one for which scientific, technical or other specialized knowledge would help a judge or jury understand the evidence or determine a fact in issue. That means the opinion must be relevant and the methodology underlying the opinion must be reliable.
• The witness must be qualified as an expert by her knowledge, skill, experience, training or education.
• The expert must possess reasonable certainty regarding her opinion.
• The opinion must be supported by a sufficient factual basis, based on: facts the expert knows through observation, facts made known to the expert at trial (e.g., through a hypothetical question) or facts that the expert may not know personally but have been supplied to her by experts outside the courtroom, such as reports of nurses, technicians or consultants.
Though the above rules govern the presentation of expert testimony in U.S. courts, most states have some version of the rules that track, with exceptions, the federal rules, which place reponsibility for showing that testimony meets the requirements for admissibility on the party that aims to use the testimony.
That’s not to suggest that laypeople who testify cannot offer opinions. However if a witness is not testifying as an expert, his opinion is limited to one that is rationally based on his perception, helps the judge or jury gain a clearer understanding of his testimony and is not based on scientific, technical or other specialized knowledge, according to the federal rules.
On Twitter and Facebook one encounters the abbreviation “IMHO,” which stands for “In my humble opinion.” The disclaimer applies in the case of this writer, whose opinions are his own.
Still, I admire the law’s insistence that opinions, whether humble or haughty, rest on a foundation. In other words, know what you’re talking about. At least if you’re in earshot. But especially if you’re in court.
Kalinda, Cary’s next-door neighbor, promises Cary, that she, “her successors and assigns” will maintain her house, a lovely bungalow with a porch that encircles it, in good repair.
Kalinda later files the document with the county recorder of deeds. Cary values Kalinda’s pledge. Having a tidy house next door benefits his property.
A year later, Cary sells his house to Sarah, whom he tells about Kalinda’s promise. One morning Sarah meets Kalinda and reminds her of the pledge, which Kalinda reaffirms as she prunes a patch of delphinium.
About six months later, Kalinda, who misses Cary and feels sad about his moving away, decides to sell her house to Diane, who proceeds to let the property fall into disrepair. Under Diane’s stewardship, the bungalow becomes choked with vines and chickens peck at the floor of the porch, which once held a love seat on a swing.
Sarah, disgusted by the dereliction of duty, reminds Diane of Kalinda’s promise. Diane shrugs and returns to her hammock, which barely clears the lawn that has not been tended in months. Later that day Cary, at Sarah’s urging, calls Diane to remind her of Kalinda’s promise.
Diane demurs. “Whatever Kalinda pledged is between you and Kalinda,” she tells Cary. “That does not obligate me.”
“But you purchased the property from Kalinda,” Cary says, nearly in tears.
“Good luck to you,” Diane answers.
That night Cary and Sarah review their options. They wonder if they can sue Diane to compel her to maintain her property.
The answer is no, at least under common law.
Sarah could hold Kalinda to her promise because the promise benefitted the property that Sarah bought from Cary. When Cary conveyed his property to Sarah, she succeeded to his interest, which included Kalinda’s pledge.
But neither Cary nor Sarah can demand, legally, that Kalinda’s promise burden the property now that it’s owned by Diane. For that to have happen, Kalinda and Cary would have had to share some legal interest in the land – as buyer and seller, as lender and borrower, or as landlord and tenant, for example – independent of Kalinda’s promise.
The only relationship that existed between Kalinda and Cary was neighbors. Still, Sarah may be able to persuade a court to enforce Kalinda’s promise if she were to argue that it ties directly to the land itself regardless of who happens to own Kalinda’s former bungalow. Many courts recognize a so-called equitable right.
Sarah may succeed. Or she may not, in which case Diane can return to her reading.
Categories
The mail, your lawn mower and the law…
Suppose you are about to go on vacation and you ask you neighbor to gather your mail for you while you are away. What legal responsibility does your neighbor have with regard to the letters, bills and L.L. Bean Catalog that land in your mailbox? Suppose when you return home you loan the neighbor your lawn mower, so that she can cut the grass while her mower is in the shop. How careful must she be with your Lawn-Boy?
Between now and August this blog will be about the law, which addresses such questions directly. More specifically, I’ll be writing about my study for the New York State bar examination, which is slated to take place over two days starting July 29.
I last sat for a bar exam 26 years ago, in Pennsylvania, the summer after I graduated from law school. Since then my career, like the careers of many lawyers, has shifted course several times. I’ve become a journalist and reported the news at both a top trade publication and at one of New York City’s leading daily newspapers. I served as a lawyer at the Federal Communications Commission and lived in Africa.
Thus my studying for the bar exam is a homecoming of sorts, and an opportunity to reunite with the world of black-letter law. That includes the guts of such things as estates in land, the elements of crimes and the essentials of an enforceable contract. It also includes the Miranda Rule, defamation, the Constitution and much, much more.
The endeavor appeals to the journalist in me who loves learning and thrills at the prospect of finding stories. It also appeals to my love of the law, and, I hope, will allow me to tap a part of my training that I think will make me a both better journalist and a better lawyer. I plan to use this space to share some of what I learn along the way.
As for the mower, the neighbor has a responsibility to take the utmost care of it. She’ll be responsible for even slight damage because the loan was solely for her benefit. Then again, her holding your mail was for your benefit. Thus, she has less responsibility, legally, to take good care of that.
Of course, here’s to you and your neighbor never having to sue each other…