Blog 8

          This week, I returned to cases encountered during prior weeks. Experiencing the progress of a case through its various stages revealed the different trajectories that a case can take.

Tuesday      
                                                                                                                                        

            My father and the 3rd-party administrator for Mesa Public Schools met in a school bus parking lot to prepare a bus driver for his court hearing. The bus driver described the accident to us, explaining how the plaintiff driving the car in front of him hit her brakes while the light at the intersection was still green. He stated that he stepped on the brakes as fast as possible to avoid a collision but the woman's vehicle had completely stopped even before the light turned red. He showed us the video of the incident recorded from the bus's dashboard camera, and the facts he claimed were consistent with the video evidence. My father advised him on certain phrases that the client should use when questioned by the judge to strengthen his case.

Thursday

            I attended a court ordered settlement conference before a judge pro tem. We arrived early to meet with the judge to create a good impression. All parties involved in the case were in separate conference rooms, with the judge pro tem circulating through the office to meet with each party. In my blog post from Week Six, I mentioned my analysis in preparation for a mock oral argument concerning a dog-at-large case, in which three sets of defendants were potentially statutorily liable: the dog owners who left their dog in the care of their son at his condominium and his live-in girlfriend. My father was defending the person the parents had left their dog with to watch over. The other parties in this case--the client's live-in girlfriend and the client's parents--claimed that my father's client was at fault for most of the damages.

            When the judge arrived in our room, he told my father and his adjustor, who was appearing telephonically, that he disagreed with the analysis in the defendant's settlement memo and that he needed the adjustor to present more money to get the case settled. Then my father stepped in and told the adjustor that the Judge pro Tem had no power to order him to take any action whatsoever, and that he should stand by this analysis and not be bullied by the judge pro tem. Despite this rough start to the conference, the judge eventually apologized for being overly aggressive, and my father and the judge, as professionals do, shook hands and went back to business. After three hours of negotiations, the case was eventually settled. The son and his girlfriend agreed that they were statutory liable for an equal amount of damages, and the parents disagreed because they were not in control of the dog and therefore agreed to contribute only a small fraction of the damages.

            I continue to enjoy the back-and-forth of settlement negotiations and also learned how certain situations call for a lawyer to stand his ground, but in a professional manner.

Friday

            My father took a deposition of a pro per plaintiff at his office. A pro per is a plaintiff not represented by an attorney. This deposition was scheduled by my father when the plaintiff refused to discuss settlement at the prior court-ordered settlement conference I mentioned in my blog post last week. In that settlement conference, the plaintiff had walked out because she refused to negotiate. The plaintiff is a middle-aged woman, the goddaughter of the original plaintiff, an older Cambodian man who died from cancer. The current plaintiff and the original plaintiff were involved in a car accident. However, the car accident is not the issue; the plaintiff is seeking a new car to replace the car never completely repaired by a repair shop.

            The original plaintiff, the owner of the car, received his insurance money and selected a repair shop to fix the car. For whatever reason, the original plaintiff refused to provide the repair shop with the entire amount of insurance money, withholding the portion related to labor costs. The body shop failed to complete the repair because the money provided by the plaintiff was inadequate to buy all the necessary parts. Thus, the car languished at the shop unfinished for years. The original plaintiff gave the car to the current plaintiff as a gift during this time. She ignored the notice regarding fees for storage, and the car is now gone.

            Since the repair shop is now out of business, the plaintiff has charged the insurance company with not intervening with the repair shop to fix the car. She claims charges in the amount of 50 dollars per day from the date of the accident to the present day for loss of use and also wants a new Acura (the old car was a 2006 model). My father attempted to explain the concept of mitigating damages, but the plaintiff failed to understand. Once again, she refused to talk settlement or negotiate.

            Acknowledging that he deposed a pro per, my father asked questions on the record, such as "Was I fair to you?" and "Did you have the opportunity to answer my questions?" to ensure that the plaintiff, who chose not to have a legal representative, would not be able to claim my father bullied or took advantage of her during trial.

            The testimony by the plaintiff seemed very weak--the plaintiff didn't know many details because the original plaintiff controlled the situation before his death. Additionally, she does not blame the original plaintiff for withholding the necessary money from the repair shop, nor does she blame the repair shop--she only targets the insurance company, the party with money. In this deposition, my father asked questions to pin down definitive answers by the plaintiff to prevent her from dancing around questions later.

Research

            After last week's post about the Supreme Court's stunting of student free speech rights, I wanted to add a positive note about a high school student editor in Arizona who triumphed against school censorship.

            Standing up for student free-press rights poses quite a formidable challenge to student journalists in Arizona--a battle valiantly waged and won by the aptly-named Thunderbird High School newspaper, The Challenge. The principal used prior restraint to pull an article conveying teachers' skepticism regarding a teacher testing program authored by a student, alleging that the article was biased, even though administrators had refused to provide information to balance the article. As a result, the newspaper was published with a blank space in place of the article.

            Honored with the 2010 Courage in Student Journalism Award, The Challenge's former Editor-in-Chief, Vaughn Hillyard, endured failure at three levels of administrative appeals--to the school principal, Superintendent, and the district governing board. Only the voluntary intervention of an attorney procured a resolution allowing the students to publish the censored article with attached comments from district officials. Unfortunately, the fact that the newspaper still remains subject to prior review dampens Hillyard's success.

            How many other student journalists would have the persistence, confidence, and courage to sustain such a protracted First Amendment crusade? According to my survey of public high school faculty advisors of student publications in Arizona, the answer is not many: roughly sixty-five percent admit to self-censorship, forgoing publishing content based on the fear that school officials would be likely to censor it. 

            What's the solution? How can Arizona educate its students to become citizens prepared to participate fully in our nation's civic life and navigate the marketplace of ideas? Does using prior restraint enrich meaningful conversation about public policy issues pertinent to high school students? Speech suppression might shield students from unpleasant realities, but leaves them ill-equipped to think critically and speak articulately on controversial subjects. Supervision, not silence, strengthens the exercise of responsible student journalistic ethics. On a practical level, a school can ask students to include a disclaimer, rather than censoring, a sensitive article to reinforce that the views do not express the opinion of the administration.

            I propose that the state must assume this responsibility to protect student free speech from school censorship. Relying on each individual school to affirmatively declare in a written policy that its student publications are public forums and to disavow prior review is not a sufficient bulwark against First Amendment violations. Only a state statute codifying the right of student journalists offers adequate protection.

            Censorship of an edition of Globe High School's student-run newspaper, The Papoose, in 2008 exemplifies the need for state legislation. Despite The Papoose's explicit proclamation that it did not reflect the opinion of Globe High School administrators or staff and its written designation as a public forum, school officials removed an edition of the newspaper containing an article discussing the function, growing popularity, and health dangers of smoking tobacco with a hookah--a topic with educational merit and unlikely to cause a material disruption of school. This article is a prime example of a social issue of importance to teenagers--one which merits speech and debate, not silence and denial.