Blog 6

Blog 6

            This week's events--two conservatorship hearings and a deposition--reinforced the routine, everyday work of an attorney. In addition, I honed my interpretive and argumentative skills, while I continued researching for my SRP and for cases at my internship.

Monday

            Because today's hearing was rescheduled, I had time to research the latest examples of student  newspaper censorship on the Foundation for Individual Rights and Education and the Student Press Law Center websites.

Tuesday

            More research allowed me to narrow down the relevant Supreme Court case law on the First Amendment in public high schools--Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), Morse et. al. v. Frederick (2007). Likewise, I studied precedent from the Ninth Circuit Court of Appeals, which includes Arizona, as well as 15 Federal Judicial districts (mostly Western States, Hawaii, Alaska, and Guam). The pertinent Ninth Circuit case is Planned Parenthood v. Clark County School District (1989), However, both Fraser and Morse are Ninth Circuit decisions that were overruled. The circuit court confusion in interpreting Hazelwood often produces speech-restrictive results. For example, the Tenth Circuit Court case of Fleming v. Jefferson County School District R1(2002), upheld viewpoint discrimination--a type of discrimination usually not even allowed in non-public forums. This case led me back to review once more the seminal public forum analysis Cornelius v. NAACP Leg. Def. Fund (1985). This research has cemented my opinion that Hazelwood's ambiguous standard for evaluating school censorship of student publications opened a Pandora's Box of infringement upon students' free speech, confirming Tinker's framework as the proper balancing of authority and expression.

Wednesday                                          

            At the Phoenix court house, we met with a minor's mother to prepare her for testimony before the judge in a minor's settlement. In this conservatorship hearing, the minor was only one month shy of 18. Everything went well. I realized that I am growing familiar with these routine processes. I've memorized the procedure and statements by now. More interesting, on a personal level, was meeting with the minor's attorney afterwards. He was in his twenties and had attended Dartmouth as an undergrad and then attended UA law school. He even interviews seniors who apply to Dartmouth. Although he loved his college experience, he returned to Arizona, where he was born and raised, because he wanted to avoid student debt. It was an enlightening perspective to consider as I hear results from out-of-state colleges.

            Later, I reissued my online survey to my targeted group of 83 faculty advisers for student publications in Arizona. Since I had only received 21 responses at this point, I attached a new cover letter explaining my need for a more accurate representation of respondents' experience with prior review and censorship. Gratifyingly, I immediately received two more; more dismayingly, I've only received a total of four more as of this writing. Nevertheless, the trend of the responses is strong and supports the anecdotal evidence that both faculty advisers and student editors practice self-censorship, arguably in light of the looming threat of prior review and restraint. Finally, I completed a detailed analysis of my survey results, using percentages to correlate relationships and establish trends.

Thursday

            Instead of attending legal proceedings or researching cases, today I practiced how to form a legal argument. My father, another attorney, and I engaged in a mock oral argument based on a dog-at-large statute case. Since this was my second time encountering this statute, I already understood about strict liability, but the facts in this case argued that three defendants were strictly liable. Thus, the issue was apportioning strict liability under the statute, rather than assessing the reasonableness of a party's actions under the common law. After reading an assessment of liability and damages, I disagreed with the conclusions and had to present my argument and recommendations. Interestingly, the second attorney had a completely contrary assessment of liability and damages. This lively debate highlighted how legal minds can differ and how interpretation is pivotal to apportionment of fault. No question of facts were being considered; we were preparing for a summary judgment based on the law.

Friday

            I was glad to conclude the week with a deposition. I look forward to depositions because the attorney must adapt his strategy to address the particular plaintiff being questioned. In this case, the plaintiff, a pharmacist, had both medical bills and wage loss claims based on a lower back injury from an automobile accident. Her car was rear-ended by the defendant's truck and propelled into a car in front of her, causing a chain reaction with three other cars. Because the defendant admitted liability, the issue concerned damages. The plaintiff's damages and wage loss claims were close to exhausting the defendant's insurance policy limit. Her persistent back pain is likely to continue in the future. The defendant's policy coverage was not large enough to fully compensate her injuries.

            Hearing her first statement--a lengthy, detailed list of her specific duties and tasks as a pharmaceutical manager--I knew instantly that my father would need to take a different strategy to accommodate this plaintiff. She further elaborated about her inability to perform everyday tasks at her job and at home. Moreover, inconclusive MRI reports failed to pinpoint a clear solution to her injury. Being sensitive and respectful to the plaintiff  during both the deposition and subsequent informal settlement conference, my father convinced the plaintiff to decide against pursuing the defendant's excess coverage. She accepted the defendant's offer of settlement and decided to pursue a claim on her own Underinsured Motorist Coverage (UIM).

            Before this case, I was not too familiar with either Underinsured Motorist Coverage or Uninsured Motorist Coverage, but now I realize the value of both. If you are hit by a driver who either lacks any automobile insurance or only possesses a policy limit lower than the dollar value of your damages from your injury, then you can make a claim with your own insurance company for the excess amount if you have Underinsured or Uninsured Motorist Coverage.

            Later that day, I returned to the dog-at-large case to continue polish my oral argument. 

Blog 5

            In this blog, I combined Spring Break and Week 5. Two of the days were the most intriguing so far during my internship: the accident scene investigation and the settlement negotiations.

Tuesday

            Today, the tables were turned; this time, we were representing the plaintiff when being deposed, rather than our usual position as a defense attorney asking the questions to the plaintiff. I attended the deposition of the female plaintiff, who we had previously interviewed in preparation of her deposition regarding her car accident. In my eyes, the plaintiff made a good witness, meaning that she persuasively presented her position in a credible manner.

            Discussions centered on damages: her injuries resulting from the accident. Before the accident, the plaintiff had some problems with her neck and hand, but she had fully recovered by the time of the accident. After the accident, the plaintiff developed problems with her shoulder, arm, and tingling in her thumb; her entire right arm hurt, preventing her from sleeping since she habitually slept on her right side. Being bounced from doctor to doctor and receiving a number of conflicting diagnoses, the plaintiff ultimately had carpel tunnel surgery on her right wrist. After that surgery, she lost her pain--an admission which elicited a laugh from the defense attorney and the court report when my father said, "That is a breath of fresh air" in this business, since plaintiffs rarely admit to full recovery.

            After the deposition, we began settlement negotiations and requested that the defense attorney contact my father to discuss the case before he prepared his report to the insurance company. Then, we met with the client to discuss the value of her claim and to agree upon strategy to attempt to resolve the case.

Thursday

            To prepare for our accident scene inspection, my father and I reviewed the plaintiff's notice of claim against our client, defendant Mesa Public Schools. The plaintiff, a ten-year-old student, alleged a serious fracture injury to his right lower leg. We reviewed medical records, bills, photos, and x-rays to prepare for the meeting with the client at the accident scene.

            At the elementary school, we met with the principal and two playground aides, and inspected the accident scene, the recess field where the student broke his leg while playing Capture the Flag. Mesa Public Schools' 3rd party administrator joined us, and we discussed developing a plan for further handling of the case for a meeting with the plaintiff's attorney. Surprisingly, my father and the administrator were unfamiliar with the rules of the game; I gave a quick rundown and the principal elaborated. The plaintiff had been in pursuit of another student carrying the flag; he alleged that he hit the fence and twisted his foot in a hole under the fence. However, the plaintiff's allegations would mean the plaintiff was chasing the boy past the halfway point, which is contrary to the traditional rules. Later, I researched the rules of Capture the Flag to confirm the general accepted practices of the game.

            During our inspection, school was in session; watching the little kids running around at recess reminded me of days long ago.

Wednesday

            I thoroughly enjoyed attending the today's events; I was fascinated by each party's posturing without being untruthful, but simultaneously not showing all their cards.

            Today started with preparing for the deposition of a plaintiff in a personal injury case involving two defendants, with my father representing one co-defendant. Both liability and damages were disputed. Adding more complexity, the plaintiff was the wife of a co-defendant, and obviously favorable to the co-defendant. Likewise, the co-defendant was favorable to the plaintiff on damages. Consequently, it was two against one on liability, two against one on damages; a real David and Goliath predicament, with my father as David.

            To compound the problem, my father's client failed to appear for his deposition--an unfavorable development. The client's absence essentially transformed the situation into two against zero. David lost his sling, but he still had his stone.

            My father did the best he could on cross-examination of the plaintiff and the co-defendant on liability and damages, but without his own client, his position seemed weak. My father and I consulted on how to deal with the situation, and he suggested an informal settlement conference. This is when things grew more interesting.

            We met with the co-defendant's attorney and the plaintiff's attorney to suggest the best plan for further handling, and it was agreed that every attorney would agree to recommend to their clients on what was a reasonable settlement of the case. Ultimately, they reached an agreement that everyone would agree on a recommended settlement on a dollar amount, with the two defendants sharing equally--50/50--on the settlement. Things then became more difficult.

            The plaintiff's attorney obtained authority for the agreed-upon the recommended dollar amount of settlement, and the co-defendant's attorney had authority to contribute matching money with my father's client. Unfortunately, my father was not able to obtain authority for matching money; his client's insurance adjuster only authorized a lesser amount. From that point, negotiations back and forth over what the plaintiff would accept and what the co-defendant would offer in non-matching funds resulted in an agreement in which the co-defendant agreed to pay 60 percent and my father's client agreed to pay 40 percent of the settlement.

            At the end of the day, I thought that the settlement negotiation tactics and strategies employed by all sides were some of the most appealing aspects of being a lawyer. 

Blog 4

            While I didn't put much mileage on my car this week, I managed to cover a lot of ground researching Arizona student publications and the Arizona legislative history of an attempt in 1999 to pass an anti-Hazelwood statute. By the close of the week, I advanced to the next stage in my Senior Research Project-- launching my survey and receiving responses from public high school journalism faculty advisers.

Monday

            Logging seemingly-endless hours of phone calls to individual public schools to retrieve email addresses for faculty advisers for yearbooks or newspapers brought me nearer to my goal of selecting a targeted group of 83 schools to survey out of the 385 public high schools in Arizona. Many schools do not produce a student newspaper or even a yearbook. Surprisingly, it's not always the smaller schools in more remote locations; for example, Saguaro and Coronado High Schools in the Scottsdale Unified School District do not have student newspapers. As expected, Maricopa County had the largest pool of public high schools with journalism programs, with Pima County second. More unexpectedly, Yuma County hosts a significant-for-its-size crop of student newspapers. A few schools even offered broadcast journalism on a school TV channel.

            In retrospect, canvassing the schools reinforced what I had been learning by driving around the state in prior weeks: I was brushing up on my geography of Arizona. Looking at various school websites imparted the flavor of the different regions of Arizona, We really are a diverse state: I couldn't reach schools in Flagstaff last Friday because they were closed due to snow, while I was sitting in 70 degree weather in Phoenix.  On a side note, Arizona suffers from an overpopulation of wildcats and bulldogs--the hands-down favorite mascot of a majority of high schools. However, one school probably boasts the most unique mascot in all of the U.S.: Yuma High School cheers on "the Criminals" in homage to its territorial prison. Moreover, BASIS is dwarfed by many schools: Hamilton High School in Chandler squeezes in over 3500 students, and Mesa School District has at least 4 high schools with over 3000 students, also.

Tuesday

            Tuesday began with a bang-- receiving an email containing the Superior Court judge's decision on my father's Motion for Summary Judgment in the Mesa Public School adv. Encinas, et. al. case. The motion was granted! Thus, Mesa Public Schools will not have to go to trial to defend itself against the plaintiffs' allegation of a breach of the claimed duty to provide a school crossing guard for non-students. I wasn't surprised that my father prevailed, since I had thought at the oral argument that he had the stronger argument, using the Monroe vs. BASIS Schools case as precedent. However, the judge's off-record comment at the conclusion of the hearing expressing that this was a "tragic" case had me a little worried. However, the judge agreed with my father, finding the plaintiffs' reliance on the Alhambra case did not apply because the school district in that case had created a crosswalk and thus had assumed a duty to anyone who used the crosswalk, not just students. However, in the Mesa Public Schools case, the crosswalk was not of Mesa Public School's making, but rather an existing crosswalk which imposed no legal duty on the School District to provide crossing guards for non-students. Even though the guards sometimes arrived before school was dismissed, the court held that those facts did not impose a duty upon Mesa Public Schools.

Wednesday

            Once again, a well-timed phone call saved me a car trip. Using the citation I found at the county law library at the courthouse last week, I followed up with the Arizona State Library at the capital, ferreting out the legislative history of the Senate Bill introduced in 1999 to prohibit censorship in Arizona student publications. Because all bills after 1997 have their history available online, I accessed the minutes of the Committee on Education, which was assigned the S.B.1212-441R in February 1999. Senator Lopez, a Democrat representing District 22, was the "Prime Prime Sponsor" for the bill. I already knew the bill failed to pass, but I did not realize that it was never even voted upon. Instead, the Committee held the bill; no further action was taken on the bill in the Judiciary or Rules Committees. The minutes provided a few answers, but simultaneously provoked more questions. I learned that the Arizona Civil Liberties Union supported the bill under the right to free speech in US and Arizona Constitutions and stressed that such laws exist in other states, in which no disputes over student publications have arisen thereafter. Senator Lopez explained that authorized student publications would include a faculty adviser to decide with students what to publish.

            Next, I created an 11-question survey using SurveyMonkey in order for faculty advisers to feel comfortable, knowing that their responses would be anonymous. My survey will provide data to anecdotally assess the extent to which schools in Arizona practice prior review or label student publications as speech-protected public forums. Questions also addressed self-censorship. I modeled some of the questions after a survey of high school journalists and their media advisers at the National High School Journalism Convention in Washington DC in 2013. In this way, I can compare my Arizona survey results with a national survey.

Thursday

            Drafting a cover letter to introduce my attached survey, I sent out the survey and was pleased when my first response came through less than one minute later. A few teachers expressed interest in my survey and asked to hear the results. As of this writing, I've received 19 responses. Hopefully, this is not a plateau and more responses will arrive over the break.