SBM Blog

Perspectives: A Glimpse Into the Professional Lives of Our South African Colleagues

When mounting problems and declining resources make the challenge of fulfilling our special ethical responsibility as lawyers for the quality of justice seem too daunting, it helps to look at places where the challenges were greater and progress seemingly impossible.  No example is more stunning than the changes that have taken place in South Africa in our lifetimes.

That's why the message that landed in my inbox this morning was so intriguing:

This is the 500^th issue of De Rebus since it became the national South African Attorneys’ Journal in 1968. In the Editorial De Rebus at 500: The times, they are a-changing, we trace De Rebus’ history and wonder about its future under the imminent Legal Practice Act which will revolutionise the registration, regulation and representation of the whole practising legal profession, attorneys and advocates.

We are sending this notification to the officials of law societies and bar associations in English-language jurisdictions around the world with the request that they forward it to all their members. Should any of the latter be interested in following legal and professional developments in South Africa and the Southern African Development Community free of charge on a monthly basis, they need merely send an e-mail request to [email protected].

 Yours sincerely,

Philip van der Merwe, Editor, De Rebus

I highly recommend taking a look at their publication.  You will find the content and format both familiar and exotic.  Just click here.
 

Allons Enfants de la Patrie: France in Midst of a Judicial Independence Crisis

 While we've been paying attention to other things, thousands of French lawyers apparently have taken to the streets to protest judicial reforms planned by French President Nicolas Sarkozy.  The protesting lawyers say the plan will undermine the independence of France's judiciary. Sarkozy wants to eliminate a French institution, the independent examining magistrates called "juges d'instruction."  In recent times, the government has increasingly been using the appointment of public prosecutor rather than a juge d'instruction to handle major cases.  Compounding the contention over the reforms, a major scandal has broken out over the way the appointed public prosecutor has handled a case involving France's richest woman, Liliane Bettencourt, the heir to the L'Oreal fortune.  For more, see the FP Legal Post story.

Meanwhile, enjoy some musical accompaniment to this story.

Painting: "The Storming of the Bastille", Jean-Pierre Houël (1789)

Read more:

What to Do Between Law School Graduation and Passing the Bar In India: Sue

India's new crop of law school graduates are the first in the country to be subject to a new requirement that they pass a national 100-question multiple choice test before being allowed to practice.  Previously, law school grads in India needed only to be admitted to a local bar.  Several of the new grads are practicing their legal skills in the six-month interval before the exam by challenging the authority of the Bar Council of India to impose the exam requirement.  See  New Bar Exam Riles India's Law Grads in the American Lawyer.

World Cup Legal News

South Africa has spent about $4.5 million to set up 56 special courts to deal with crimes committed during the World Cup. The courts will be open 15 hours a day and employ magistrates, foreign language interpreters, paralegals and other support staff.  Officials, working with FIFA (International Federation of Association Football), said that the intent was to avoid burdening South Africa's regular courts, which already have a large backlog of cases.  "We appreciate and took into account the fact that this is a unique situation that attracts tourists from all over the globe and there could be challenges.  We decided to put measures in place in order to have those cases that may be court-ready finalized as soon as it is possible and practical to do so. There will be no leniency and no different standards will apply. Rules of engagement will be observed the same way as will be the case in other courts.” 

But if this Irish Times story is correct, the courts may not be as necessary as the officials thought before the tournament started: Slim pickings for prostitutes as eyes stay on ball.

Photo: Flickr, www.shine2010.co.za

Blow Bubble, Go to Jail

Talk about blowing a court appearance.  An Australian in court on an assault charge aroused the ire of the magistrate with this bubblegum-blowing.  The magistrate promptly sentenced him to 30 days in jail. The story appeared in the Herald Sun, whose readers, polled by the paper, backed the judge by 88%.  The bubble-blower is free on bond and is appealing his jail sentence as overly harsh.  "It didn't pop or anything," he's reported as saying. "It just went down."

Canadians Debate Whether Lawyers Can Be Too Civil

Contrary to the popular stereotype, Canadian lawyers, like their American counterparts, have some civility issues. Here are some examples from  a story in the Toronto Globe and Mail:

A Toronto lawyer was suspended in 2008 for punching her own client in the face. An Ontario lawyer was sanctioned in 2007 for threatening to be “10 times a bigger asshole than you” in a letter to a mediator. Fiery native-rights lawyer Bruce Clark was disbarred in 1999 after contempt-of-court convictions for accusing judges of genocide and threatening to arrest them.

But a civility initiative from the Law Society of Upper Canada that includes a new protocol for judges to complain about lawyers, a  mentorship program to influence new lawyers’ behaviorr, training courses, and more frequent disciplinary hearings, is nevertheless running into some resistance. The Globe and Mail story, Will making lawyers civil make them soft?, says that some are suggesting that  the initiative could actually harm the justice system by influencing lawyers, especially defense attorneys, to shy away from making the strongest possible arguments on behalf of their clients for fear of being disbarred for incivil behavior.

Perspectives: High Court Recusal Problems are Global

Caperton v Massey Coal put the issue of judicial recusal front and center in American jurisprudence last year, with the knotty problem of campaign contributions at the center.  Here's a story from New Zealand that shows that the issue is global, and not necessarily linked to judicial elections. In bare bones form:

• A judge of the New Zealand Court of Appeals sat on a case in which a lawyer to whom the judge owed nearly $170,000 represented one of the parties.
• The judge did not disclose the debt, and ruled in favor of the lawyer's client.
• The Supreme Court sent the case back for a rehearing, saying that this relationship "might raise a question in the mind of the observer about the judge's ability to address the issues raised."
• While the rehearing was pending, the judge was elevated by appointment to the Supreme Court.
• A former judge lodged a formal complaint accusing the judge of a "serious breach of judicial ethics" for failing to disclose the debt.
• The Police Minister, named acting attorney-general for this case because the Attorney-General who would normally handle the case and the judge were previously partners in the same law firm, announced that a judicial conduct panel, with the power to recommend removing Justice Wilson from the bench, would conduct an inquiry.
• The panel was necessary because the matter could not be referred to the Chief Justice, as  the Chief Justice and her husband had until recently been involved with the judge in a joint racehorse-owning partnership.

An editorial in the New Zealand Herald diagnosed the problem this way: "The legal profession, at least in its upper echelons, is so small that there are bound to be close and long-standing relationships between senior lawyers and judges which may create the appearance of conflicts of interest."  Perspective: New Zealand has a population of 4.3 million, and 10,500 lawyers.  Michigan has a population of 10 million, and 40,000  lawyers.  Full story: Earth Times.

Pull Up That Anchor!

Jonah Lehrer writes fascinating posts about your brain, and mine, and his.  His latest post is about "anchoring," roughly defined as mental bias toward an arbitrary value. It strikes me that understanding anchoring is especially helpful for lawyers, who need to consciously understand or have a gift for intuiting mental bias -- their own, their clients, and fact-finders' -- in order to maximize success in trials and negotiations. Here's Lehrer's explanation of the phenomenon:

One of my favorite demonstrations of anchoring was done by a group of MIT economists led by Dan Ariely, as they conducted an auction with their business graduate students. (The study was later repeated with executives at the MIT Executive Education Program with similar results.) The items for sale included everything from a fancy bottle of French wine to a cordless keyboard to a box of chocolate truffles. The auction, however, came with a twist: Before the students could bid, they were asked to write down the last two digits of their social security number. Then, they were supposed to say whether or not they would be willing to pay that numerical amount for each of the products. For instance, if the last two digits of their social security number were 55, then they'd have to decide whether or not the bottle of wine or the cordless keyboard were worth $55. Finally, the students were instructed to write down the maximum amount they were willing to pay for the various items.

If people were perfectly rational, then writing down their social security numbers should have no effect on their bids. In other words, a student with a low valued social security number (like 10) should be willing to pay roughly the same price as someone with a high valued number (like 90). But that's not what happened. Look, for instance, at the bidding for the cordless keyboard. Students with the highest social security numbers (80-99) made an average bid of $56. In contrast, the average bid made by students with the lowest numbers (1-20) was a paltry $16. A similar trend held for every single item. On average, students with higher numbers were willing to spend 300 percent more than those with low numbers.

Lehrer's whole post, about how anchoring theory can be applied to belief, e.g.  the reaction to the Gulf oil spill and the Icelandic ash cloud, is a provocative read. Here's the conclusion (but read the whole thing):

The only way to avoid anchoring is to know about it. We need to be more aware that anchoring is a fundamental flaw of human decision making, and that our first reaction to an event will continue to shape our ensuing thoughts, even after that reaction is no longer relevant or valid. Our old beliefs might be wrong, but their influence lingers on, an intellectual anchor holding us back.

"Barrage of Loony Litigation" Is in the Eye of the Beholder

In last Sunday's Washington Post, Stanford Law Prof. Deborah Rhode, author of The Beauty Bias: The Injustice of Appearance in Life and Law, tells us in  Why looks are the last bastion of discrimination that one state (Michigan) and six local jurisdictions have banned some form of appearance discrimination and "there has been no resulting barrage of loony litigation."  Meanwhile, there's been a whole barrage of commentary on the filing of a lawsuit in Michigan by a former Hooters waitress who claims her "weight probation" was a violation of the state's prohibition on weight discrimination in employment. Here's the complaint.  And a sampling of the stories:   

Rare Michigan law may help waitress win weight discrimination lawsuit against Hooters Grand Rapids Press

Hooters sued by ex-waitress from Roseville   Detroit Free Press 

Ex-Hooters employee: I was told to drop weight  The Associated Press

Hooters Sued for Weight Discrimination  Wall Street Journal (blog)

Another Hooters waitress tells WXYZ that she was discriminated over weight  MLive.com 

Perhaps U.S. Lawyers Should Wear Wigs and Robes

Stanford Law professor Deborah Rhode's book, The Beauty Bias: The Injustice of Appearance in Life and Law, is creating great buzz with its revelation that good looks help lawyers and criminal defendants be more successful.  Really?  SBM Blog is shocked. It's amazing that capitalism hasn't noticed the power of beauty and tried to establish, say, a beauty industry.  No, seriously.  We happened to have been alerted to this phenomenon in junior high school, and then again in 1994 when Dan Hamermesh, then-MSU economist (and husband of Fran Hamermesh, MichLaw '87) made an academic and popular splash quantifying the phenomenon. 

But the recent chatter about the unfairness of it all made us wonder, maybe there's something to that wig-and-robe thing that British lawyers still subject themselves to.  Might these professional affectations not be a great leveler, allowing juries to focus on the substance of what lawyers are saying rather than what they look like?  On further reflection, nahhh.  While we think all lawyers do indeed look ridiculous in those silly wigs, the attractive lawyers look more attractively ridiculous.