Blog 3

            I went old-school this week: loads of legwork on the internship front and for letting my fingers do the walking--thumbing through the phone book--on the home front. Even though I toted my laptop along, face-to-face communication and old-fashioned detective work ruled the week.

Monday

            Hunting down James A. Rapp's treatise, Education Law, for my research on the constitutionality of prior review on school-sponsored publications, I stopped in the Maricopa County law library to log onto their computer in an attempt to gain access, but unfortunately, it was not on Westlaw, only on LexisNexis. I already knew from a prior phone call that it wasn't on the shelves at the ASU library, but I called it to determine if they had access to LexisNexis which I could use. Unfortunately, despite my pleading that I was accepted at ASU in the fall and that my father was a practicing attorney, ASU informed me that only current law students could avail themselves of LexisNexis' services. Deflated, but determined, I resolved to return to the county law library after the day's hearings to look for another treatise, Schneider's  Education Law: First Amendment, due process, and discrimination litigation, which I knew was available on Westlaw.

            A short elevator ride took me from the law library to the courtroom. Sitting in the gallery, I listened to other hearings, a co-guardianship for a mentally unstable aunt and an estate case involving creditor's claims, while waiting for my father's hearing regarding approval of three minors' settlements without a conservator being appointed--a case of first impression for the judge. Although both attorneys thought it might be more problematic, the judge agreed to allow the settlements without a conservatorship because none of the minors' settlements were in excess of $10,000. This case introduced me to the issue of consideration, a fundamental concept in contract law. At first, I thought it was odd that one of the minors, an infant, was awarded $1 for a release of her bodily injury claims stemming from a car accident when it was in utero. however, I learned that consideration is essential to prove a bargained-for agreement. A nominal $1 consideration is commonly used to establish something of value given by the parties to promise to perform or refrain from performing something they are legally entitled to do. A contract can be rescindable or unenforceable in the absence of consideration.

            After the hearing, we chatted with county employees in the courtroom. I learned how lawyers are required to attend Continuing Legal Education classes annually as part of their bar membership and that county employees also have similar continuing education requirements.

Thursday

            Well, I didn't catch the 3:10 to Yuma. Instead, I hit the road at 6 a.m. and returned back home 14 hours later at 8 p.m.. Although the signs on the I-8 beckoned me to the beaches of balmy San Diego, I had to exit at the dusty dunes of Yuma and go to a state prison. After swinging by the office to check incoming mail, I headed to the Yuma State prison--not the old western territorial prison, but the Arizona Department of Corrections prison in San Luis, a place so desolate that it made Yuma look like an oasis. Surprisingly, the prison guards did not check our car as we passed through the prison gates this time. However, since I did not have prior clearance, I could not enter the actual buildings. I sat in the car reading a law journal article while looking out the window at the corps of prisoner "trustees"--prisoners allowed to roam around and rake the rocks in the prison yard. Inside, my father met the claimant, a prisoner, to finalize a settlement and sign closing documents on a bodily injury claim.

            Then, we headed to the Yuma courthouse and met with a client and her criminal defense attorney to prepare for a criminal restitution hearing. Subsequently, we attended the criminal restitution hearing, which raised a state constitutional law issue. The court held that it was unconstitutional to reject an Arizona state statute that limits criminal restitution to a 10,000 maximum.  

            Switching gears, we met with a young female client, and her father, another client, regarding the status of the federal district civil case involving huge potential excess exposure over and above the insurance limit and the impact of the recent amendment of the plaintiffs' complaint to allege a fraudulent transfer count. Since I was familiar with the facts of the case, I was amazed how all these legal troubles began with a simple left-turn gone-wrong, which seriously injured four motorcyclists. A sobering scenario to talk over on the ride home, along with listening to my father discuss deals on other cases on the phone.

Friday

            My alarm was not the most welcoming sound on Friday morning after my long haul on Thursday. Nevertheless, I hustled to the Maricopa County Superior Courthouse in downtown Phoenix, where, once again, I detoured into the law library for some more legal sleuthing. This time, I was ferreting out the legislative history of the bill, SB1212-441R, introduced in the Arizona legislature protecting the free expression rights of students in authorized school publications and eradicating prior review by school authorities. Although the AZ Senate read the bill twice in 1999, it was not received in its final disposition. I found a site to search further the details about its defeat.

            Next, I attended the oral argument on a motion for summary judgment made by my father on behalf of his client, Mesa Public Schools. There were three attorneys representing the plaintiffs; only my father represented the defendant. The defense spoke first, asserting no duty to non-students to have student crossing guards at an intersection, relying primarily on Monroe v. BASIS. In Monroe, BASIS prevailed against a lawsuit, in which a student was injured by a car while crossing an intersection on her way home from school; the court held that BASIS had no duty to provide a crossing guard. Two plaintiff attorneys then spoke; one representing the injured plaintiff and the other the wrongful death claimants, alleging that there was a duty, or at least a question of fact.

            A motion for summary judgment pivots upon whether or not a question of fact exists: if not, the judge will grant the motion for summary judgment and there will be no trial; if so, then a jury must decide the question of fact and the motion will be denied by the judge. Listening to both sides present their arguments, I discerned how imperative it is to build an arsenal of case law to support your position. Because there was a death of a minor, emotions could potentially cloud legal precedent, although it is not allowable. The judge took the motion for summary judgment under advisement, meaning he will review the case law and make a decision in the future. Following up, my father reported to Mesa Public Schools on the argument.

Research

            On the days that I did not shadow my father, I took the lead at home. Commandeering the phones, I spent hours individually calling high schools in Arizona to obtain the email address of journalism teachers or the faculty advisers of student newspapers. The prior two weeks have taught me a hard lesson, I should have verified my SRP proposal's assumption that emails for other schools would be as readily available online, as is the case at BASIS. My earlier attempts at calling school district superintendents produced negligible results: transfers to answering machines and no returned calls. To fix this glitch in my research, I committed myself to cold calling each school to ask for journalism teacher's email. Surprisingly, Friday afternoon proved the most profitable, scoring tons of contacts--tedious, yet productive. On Monday, I'll man the phones some more, hoping to amass enough emails to amass a truly representative survey, which I'm hoping to send out by the end of next week.

While the email situation was a little discouraging, my research on the viability of challenging Arizona's laws on student publications was encouraging. A bill introduced in January of 2015 in North Dakota protecting student journalists freedom of speech using Tinker's expansive standard, not Hazelwood restrictions, was likely to be passed. Because a Republican representative had introduced this, it holds hope for Arizona. Moreover, Washington State in 2010 also entertained a school district's proposal that protected both the student free speech without prior review and school districts from liability for that speech. I consider these both good leads for further research.  

Blog 2

Week two highlighted the highs and lows of shadowing an attorney, who also happens to be your father: preferential access to tag along to a variety of venues, yet no special treatment either--a ten-hour work day with no lunch break! All in all, the fast pace was fun, and even travel time was enlightening, discussing the law and listening to my father on the phone strategizing with other attorneys and adjustors to strike deals.

Wednesday started with an early morning meeting with a proposed conservator for a minor settlement at Maricopa County Superior Court. Driving to the court, my father, the defense attorney in this case, briefed me on the facts. While driving a monster truck, his client took a right turn by the nail salon where she was working and killed a mother of two minors, injuring one with over 70,000 medical expenses and scarring, leaving the other minor with emotional distress. Right away when we arrived at the court, there was a problem--the Arabic interpreter we requested did not appear. Because the plaintiff only spoke Arabic, my father made a motion to the court to make an exception and rule on the pleading without testimony. Fortunately, the judge granted the motion and approved the settlements. Once again, as I am learning the standard procedure, we went to the clerk of the court to get letters of conservatorship issued and then traveled to the bank to set up restricted accounts for the minors.

At the bank, we met with the plaintiff's attorney, who was a new attorney who had only been practicing for two years. He had immigrated from Palestine to the U.S. and attended ASU as an undergrad, graduated law school, and then started as a sole practitioner doing criminal defense, immigration defense, and personal injury law. Engaging with the plaintiff's attorney about his perspective about being a lawyer, I noticed how both he, a new attorney, and my father, an attorney for 29 years, shared an enthusiasm about the law and being an attorney.

Next, we hustled to west Phoenix to meet with clients to get an affidavit of no other insurance signed, so that the plaintiffs could pursue an underinsured motorist claim. We had to hurdle past another language barrier, this time the clients were Spanish speakers so we had the neighbor next door translate. The clients couldn't understand why the insurance company was paying any money when they were not at fault. In short, the answer is that payment protects the clients from a potential huge excess exposure, even if they don't believe they have liability. The risk is winning big or losing big. It wasn't easy, but the affidavit was signed. Afterward, my father and I traveled to the apartment of the client's passenger, where my father did a repeat performance--getting a neighbor to translate Spanish and getting an authorization signed to enable him to gather her medical records and evaluate her claim.  

For a change in pace, my father was going to meet with a plaintiff as a client (generally, he is a defense attorney, but sometimes takes on plaintiffs as clients). The case involved a car accident; causation was the issue--whether her injuries were related. Speaking with the female client, the attorney went over medical records from before and after the accident, developed a theory of recovery based upon these medical records in preparation of the client's deposition, and completed responses to discovery requests made by the defendant's attorney and her initial disclosure statement. 

In this case, the plaintiff was an "egg-shell" plaintiff, a term in tort law referencing plaintiffs who have prior conditions which are aggravated by an injury caused by the defendant. The defendant takes the plaintiff as he finds them; he is liable for all damages to the egg-shell plaintiff even if damages would have been much less to an average plaintiff. Here, the plaintiff alleged that she had prior problems with neck, right shoulder, and right arm, which first occurred in an incident six years before, had been asymptomatic for six years except for a tingling in the right thumb, and then ultimately required carpel-tunnel surgery after the accident. When evaluating a client's claim, an attorney must weigh his client's credibility--how believable he/she appears. We both agreed that the plaintiff appeared very credible.

On Thursday, I finally was stationary. For five hours, I poured over pleadings and case law in preparation for an oral argument on Mesa Public School's motion for summary judgment on a duty issue regarding student crossing guards. I reviewed the school district's motion and accompanying statement of facts in support of the motion, the plaintiff's response and supporting statement of facts, the school district's reply in support of its summary judgment, the plaintiff's objection to the school district's reply, all case law cited in the pleadings, and the Restatement of Torts on this issue. The purpose for all of this reading was to begin preparation of a mock oral argument to question my father, who is representing Mesa Public Schools. Even though I was no longer sitting in class at BASIS, it still loomed in my thoughts. Monroe v. BASIS School, Inc. was used as precedent to support the school district's defense.

Back home, I researched online and discovered that most high school districts in Maricopa, Pinal, and Pima counties have the same policy on student publications in the Arizona School Board Association Manuals. The wording basically provides a standard of prior review for school sponsored publications in line with the Hazelwood decision. However, I also discovered a few high school online newspapers that contain policies declaring the publication to be either a public forum, such as Kofa High School in Yuma, or a limited public forum, such as Valley Vista High School. Consequently, Hazelwood  is the floor for student journalists' right to free expression in Arizona, and each high school can provide more First Amendment protection by adopting an express school policy.  The Governing Board Policy of Mesa Unified School District is particularly intriguing: its language echoes both the "materially disrupts school" test of Tinker and the prior review standard of Hazelwood. I called many school district offices in Maricopa County to contact their superintendents for more detailed information and further contact emails. Presently, I am still waiting for replies, and I plan to make further calls next week. 

Blog 1

            Reviewing my first so-called "on-site" week shadowing an attorney, I realized that attorneys aren't often on-site. Bustling back and forth between varied venues this week defied my initial expectations of a more sedentary job. Besides learning some fundamentals of the law and civil procedure, I was impressed by how important a role the soft skills of communication and psychology  play in the practice of law.

Monday:

            On Monday, to prepare me for the day's agenda, the civil defense lawyer who I am shadowing gave me a legal primer on the difference between tort law and statutory law. A cause of action is a set of facts justifying the right to sue. Statutory law is based on federal or state statutes defining a cause of action; tort law is based on the "reasonably prudent person under the same circumstance" standard. The day's issue concerned statutory law--Arizona's "dog at large" statute, in which the owner of a unleashed dog is strictly liable if an injured plaintiff brings suit within one year. Because it is statutory law, the plaintiff does not need to prove that the dog owner acted reasonably.

            Next,  we arrived at the plaintiff's law firm to conduct a deposition-- a meeting attended by both parties' attorneys to take the sworn statement of a party or witness to a lawsuit that is conducted through a question and answer format, similar to cross-examination at trial. Attending a deposition of the female plaintiff claiming to be injured by a neighbor's dog, I observed how attorneys cross-examine claimants to make a written record of their testimony that is admissible in court. Attorneys seek to get yes-or-no direct answers, therefore they narrowly frame their questions. I also saw how attorneys interact with opposing counsel--what is known as professionalism. For example, requests for medical records or diaries were made politely, rather than aggressively demanded. Because the plaintiff was emotional and disputed the accuracy of her medical records, questioning was difficult and sensitivity was required.

            After the sworn deposition of the plaintiff, both counsels discussed settlement and further handling of the case, including experts and independent medical and psychological exams. This settlement discussion was followed up with a visit to the Apache Junction Justice Court to find an injunction against harassment that the plaintiff sought against the defendant, our client, for a subsequent incident alleging intimidation with a car and to gather documents on the dog incident.

            Later, we met with his client, the defendant in the dog incident, to interview him at his home and also to interview two other witnesses there. An attorney is required to receive permission before he can make any offer of settlement on the client's behalf. The client gave his permission to enter into a binding arbitration high-low agreement (Alternative Dispute Resolution) to avoid a jury trial. By capping the plaintiff's damages, the attorney avoided the potentially excess policy limit jury verdict that he would be exposed to at trial.

            The plaintiff's damages depended on deciding causation--what injury was caused by the incident--and aggravation--if her pre-existing injuries and stress were compounded by the incident. I learned the difference between "a" cause (meaning one of many causes) and "the" cause (a but-for single cause of the injury) when measuring liability.

Tuesday:

            Heading up north to Prescott to the Yavapai County Superior Court, the attorney and I meet with his client, a twenty-four-year-old male charged with DUI and aggravated assault from a car accident, facing 4 months in jail and 5 years of probation. We were not dealing with his criminal claims; we were explaining to him his situation and what we were trying to accomplish as it relates to criminal restitution claims. We filed pleadings in the court to get a court order deeming the client's criminal restitution satisfied by using the client's insurance coverage to reach a global settlement of all claims.

            Leaving the court house, we encountered a press conference and memorial honoring Kayla Mueller, the humanitarian aid worker from Prescott who was kidnapped by ISIL and confirmed dead the prior day. Sadly, unlike his client, it's going to take more than a court order to rectify that grievous situation.

            Afterwards, we made a detour to inspect another accident scene in Prescott Valley, observing the timing sequence of a traffic light and evaluating liability.

Wednesday:

            At an early morning meeting in the Phoenix law office where I am interning, I sat in on my attorney's consultation regarding an excess policy limit exposure and a minor's settlement, which lasted about 1.5 hours. Because the minor, who was a driver in a major car accident, was about my age, I found the issues relatable.

            Next, we conducted an investigation in an attempt to locate a potential claimant. Successful, we were able to contact him to explain the situation and obtain his cooperation. After we made a quick stop to tour the courtrooms at the Maricopa County Superior Court, the main courthouse in Phoenix, we visited the adjacent Law Library to gather information on how I can sign onto legal search engines for my SRP research.

            Finally, we attended a court hearing regarding the reasonableness of another minor's settlement. After preparing the clients for about 45 minutes, we attended the conservatorship hearing, which was fairly routine because it was not contested, but provided a glimpse of the rules of civil procedure in action. I sat at counsels table and was introduced to the judge. Afterwards, we accompanied the client to the clerk's office to have letters of conservatorship issued and then to a bank to set up a restricted account for the minor's settlement.

Research

            I started accumulating contact information for the high schools which I will survey about school censorship. In Maricopa County alone, there are over 380 public high schools. Finding email addresses is proving difficult. Most schools just list phone numbers and mail addresses. I've discovered a few schools which have established policies declaring their school publications to be public forums, which is promising.