What is Charlie Trying To Teach Us?

Pretty much everybody, both within this class and without, realizes that this is not a "normal" Evidence class. Presumably a "normal" class would cover the FRE section-by-section, through the major types of evidence and the most salient situations into which they might be introduced. I think that you went "meta" on us, asking us to study the reasons why we have Rules of Evidence in general, and how to evaluate the effects of any such rule at trial. You then used that analysis as a springboard to consider larger questions about how we are to "lawyer," and how we are to live.

First, we should think of the Rules of Evidence in terms of how they affect the storytelling options of the parties at trial. The "rape shield" law, for example, prevents defendants from telling stories that imply that the victim exists for men's sexual use, e.g., "She took four men into the van, so she must take all men into the van." The law reflects a political decision that we simply don't want to hear certain stories, because juries believe them even when they're not true, or when they're true but irrelevant to the elements of the offense.

Second, the Rules represent a specialized form of epistemology. Courts are aiming for truth, but take a path that recognizes that people lie, people forget, and that "justice delayed is justice denied." A legislature can react to a question like "does TCE cause leukemia" by appointing a panel or funding new research; it can spend and it can wait. In a courtroom, the judge and jury only can see as many facts as the parties can afford to discover, and they have to make a binding decision when the trial ends. See also the "character evidence" exclusion. It rules out whole swaths of evidence that change the jury's "picture" of the defendant? Outside the courtroom, if we accepted epistemology as objective in nature, "five dead wives in the shower" would cause a lot of talk around the average dinner table. At trial, however, we have made a political decision that a single conviction shouldn't make a person forever easier to prosecute. This same judgment about human nature leads us to the probative/prejudicial distinction, and the concept of privilege, as well.

So that covers the first couple hours of each class. The rest? Part of the teaching was by example; your persona conveys much meaning. Here are three lessons:

1) "Lawyer" is a verb. It means "to use the intellectual tools of the law"; we then create our identities by engaging those tools with passion. As Carlos Castenada put it, find the "path with heart." Cyberjam is lawyering in the roles of "dealmaker" and "communicator." You are obviously interested in engaging your dealmaking skill (and ours) in support of the Jamaican culture and experience, and that interest creates a credibility beyond that of the hired gun. The Civil Action conference is all about the lawyer as storyteller; the time for courtroom warriors ended when Judge Skinner handed down the verdict, and now (perhaps) the best thing that we lawyers can do for Anne Anderson is help her narrate.

2) Embrace the new. Some would say it's undignified for a man nearing retirement age to be listening to the same music as 18-year-old rave kids strung out on E. Maybe the audiovisual fireworks and Internet projects are just frippery that detract from the meat of a "real" Evidence class. Of course, unlike most people I know, you seem to be pretty excited to get up in the morning. I think it's because you're always starting something, be it a copyright lawsuit or a new set of student groups. You could be maligned as a dilettante, but there's something of the dilettante in every child; the quality is essential to youth, and youth is synonymous with vitality.

3) Don't let the bastards grind you down. Trying new things means that some of them will fizzle, and the more you try to change, the more you threaten those that benefit the status quo. Okay, so you lost the Woburn case. You are at war with Neal Rudenstine. And you're a source of constant consternation to Dean Clark and all the "serious" scholars around here. You're still kicking. Whew! For many of us, law school is the first time that we've been seriously challenged, that we've played a game we can't win. You're teaching us how to come back from mistakes, to court risks with good humor. Who the hell needs Clark's approval when you can still get up and dance with your wife?

Anyway, that's what I got out of it.