Amendment 2 Passed by Justin Steele

               Tuesday, Nov. 4^th was Election Day and specifically Amendment 2 passed by a huge majority.  If you are a regular reader of this blog you know that I wrote about Amendment 2 several months ago saying that it was going to be bad.  Despite the outcome of last Tuesday I feel the same way today.  In case you didn’t read my previous blog post about Amendment 2 I will summarize.  Amendment 2 is bad because it removes the current method of judicial selection which has the appellate and Supreme Court level judiciary appointed by a nomination committee.   The Judicial Nomination Committee was good because it left much of the power to appoint judges, to the higher levels of the court system, with individuals  within the court system.  Now, however, we have approved an amendment which leaves the appointment of the appellate and Supreme Court in the hands of the governor, approval by the legislation and a retainment election by the people every 8 years.

               Our constitution previously stated that the Supreme Court was supposed to be elected by the people.  Now, many of us can see how that could be a problem because it would not insulate the judiciary from the political arena.  The previous process allowed for the retainment election every 8 years, which everyone claimed was enough to meet the requirement that the people had decided on their judiciary.  Personally, I do not believe that a retainment election meets the language of “elected by the people”, but then again, I do not want the Supreme Court to be elected by the people.  The current process is going to do twice as much damage though.  The people, which the constitution states should make the decision, still don’t get the vote but the judiciary is no more insulated from the political arena.  Instead of being approved by a group of many different people, candidates will now be approved by a much smaller body of highly political individuals who will sway their appointment decisions in any which way suits them at the moment.  I do not have a solution to the problem but I do not think amendment 2 was a wise amendment.

“Thankful Every Day” by: Jennifer Bicknell

           Yesterday was Veterans’ Day and I wanted to take a moment to offer my thanks to all the Veterans, both those who have served in the past and those who serve today.  I am thankful for the sacrifices not only they have made and continue to make for our country, but also the sacrifices of their families.  As a former high school U.S. History teacher, I taught my fair share of lessons on the various wars that occurred throughout our history, and even those that occurred before there even was a United States, and I always tried to foster a respect and understanding of those sacrifices to my students. 

            So if you know a veteran, say “Thank you!”  If you see a veteran, say “Thank you!”  Be thankful for our veterans, not just on Veteran’s Day but every day!

Discovering Larry Rice’s Not-So-Hidden Talent By: Jennifer Bicknell

            Larry Rice took to the podium Tuesday as guest lecturer for Lynda Black, Professor of Family Law at University of Memphis School of Law.  The topic Larry was asked to lecture on was Discovery in Divorce Litigation, however, as he always does, Larry provided much, much more.  Ever the ambassador, Larry opened his lecture with a ringing endorsement of the practice of family law with the promise that it can actually be fun.  As a clerk at Rice Law for almost two years, I can attest to that fact and state that while we work very hard, we also have more fun than people probably think lawyers can or should have at work.

            Larry discussed written discovery such as Interrogatories, Requests for Production of Documents, and Requests for Admissions.  Although written discovery can be admittedly dull, Larry made sure to enlighten the students to the true benefit of these written responses once the opposing party takes the stand or the deponent’s chair.  Larry also discussed the strategy behind depositions and even entered into a mock deposition with one of the students in the class.

            Throughout the 50-minute class, Larry’s energy and passion for what he does shown through and I am sure the only thing Larry would have liked at the end was another 50 minutes just to tell stories.  Larry is truly in his element when he is given an audience and able to discuss what he loves.  So, did Larry miss his calling?  Should he have traveled a different path into academia?  For anyone who has worked with Larry and especially anyone who has been represented by Larry, the answer to those questions is a definite and loud – NO!

Yes Means Yes law by Justin Steele

            California Governor Jerry Brown signed  into law  the Yes Means Yes law the other day, which requires universities within the state to have protocols defining affirmative consent for sexual activities between students.  The goal, obviously, is to make it a little easier for the victims of sexual assault to prove that they did not consent to the advances of their alleged attacker.  By having a law that requires explicit and continuing consent throughout whatever sexual activities occur, the legislature created an environment where the victim won’t be blamed for their silence.   What is interesting to me about the law is that in clause (b)(7) we have a requirement for the university to provide a written statement to law enforcement concerning the alleged assault.   I am certainly not a criminal law expert, however, it would seem to me that the most logical course of action for both the victim and the university is to immediately report the sexual assault to law enforcement.  How did a university’s college disciplinary committee become the go-to authority when a crime has occurred?

            Surprising to no one, there have been some critiques of the new law, which essentially boil down to the idea that if you have to ask for permission it’s not fun.  While I think those arguments are weak, I think universities may have a problem with the clause which requires the disciplinary committees to look at the assault from the lower preponderance of the evidence standard.  In criminal trials the required standard is a showing that the accused committed the crime beyond a reasonable doubt.  I find it interesting that when a quasi-judicial body is involved there is a lower standard despite the fact that being expelled and labeled as a rapist can affect a person’s life for ever.  I am assuming that will be the argument made when this law gets a constitutional challenge.  The state will argue that it’s okay for the school to have a lower standard because it’s not an actual criminal trial and would hardly meet the requirements of a formal adjudication.  Which brings us back to the question I asked earlier, how did a college disciplinary committee become the go-to authority when a crime has occurred?

            The truth is, I have no idea.  I imagine that it became common for women who have been sexually assaulted to go to campus police.  Campus police retained the information and presented the sexual assault report to the university.  The university created a committee to handle the sexual assault and keep it quiet.  Meanwhile, the victim decided to go along with it because she forgot that a criminal conviction is much more serious than an expulsion from a university.  Regardless of any Yes Means Yes laws or No Means No laws, a victim should report to the police.

Preparation by Justin Steele

           One thing that I have learned as a clerk here at Rice, Amundsen, & Caperton is the art of preparation.  A genius once said, “The three most important things an attorney can focus on are preparation, preparation, and preparation.”  From the beginning, it’s necessary to have an eye toward the possibility of litigation.  Sometimes when people are getting divorced they can be a little upset.  Anger and frustration are unavoidable and necessary reactions to an incredibly difficult part of any client’s life.  However, often times that anger and frustration turns into a lawyer having to be prepared to go to bat for many little legal issues.  While the goal is always settlement, it would be a bad idea for an attorney to forget that settlements fall apart quickly and litigation may be the result.  Litigation is not the only thing you have to be prepared for.  For instance, sometimes you have to prepare to meet with a client.   Often times, preparation means looking back through your own notes or mentally preparing to tell a client that you will be parting ways shortly.  On complicated cases, preparation may include the regular acts of researching, writing, getting all your files together, organizing, and indexing,  as well as, holding mock trials and having a team of people throw the most off the wall questions at you.

            Regardless of the way that you prepare or your attorney prepares, everyone can agree that preparation is absolutely the most important thing an attorney can do.  Preparation can make or break a case and an attorney’s practice.