Week 2 continued: Appealing justice

October 24th, 2012 by Briana Cummings

One of the reasons I went to law school was to empower myself.  In a way I did, but I also learned how incredibly unempowered (powerless?) non-lawyers are in the legal system.  I always hated the idea that in my moments of need I would have to rely on some stuck-up lawyer wanting to charge me through the teeth.  I always thought that the court system was put in place for the average person.  It’s not though.  It is a forum for lawyers by lawyers. (Source: I Just Want to Practice Law . . .)

I worked a lot this week on my juvenile appeal. First step was to pore through the hundreds of pages in the court transcript and the reporter’s transcript. The court transcript contains anything in writing that exists on the case: police reports, school reports, probation officer reports, formal charges, written motions, any other written correspondence. The reporter’s transcript is a written transcript of anything that was said orally in the case — i.e., all hearings and court proceedings.

As long and detailed as these transcripts are, they leave so much out. In particular, almost none of my client’s voice comes through in them. The police describe in sanitized, legalistic terms his actions; the public defender describes the portions of the state code he did or did not violate; the school reports list his truancies; the probation report gives cursory summaries of interviews with him and his family members about where he should be placed. There is very scanty reporting in the pages of anything he himself — the center of the whole case — has thought or said. I contacted Juvenile Hall to find out whether he was there and if I could come meet with him, to learn about what the world looks like from inside his skin and, especially, what he wants from this case.

In addition to mastering the facts of the case, I’ve got to master the law — and here, too, I find I can’t get what I need just from reading through pieces of paper. For example, after reading through the relevant sections of the California Penal Code and the California Welfare and Institutions Code and through all the resources available on the court’s web site for pro se litigants, I still couldn’t decipher all the legalese in the transcript. I contacted the Alameda County Law Library, but the law librarian was as baffled as I about the particular terms in question. Finally, I called the public defender who had worked on my client’s case. He explained the phrasing I was referring to was a “colloquialism” they used in the court and in the public defender’s office to label a particular disposition. It’s not something I would find in any law library.

After thus getting my bearings in the case, I began to look for ways to argue that the lower court erred. This is where you see how much the truth-seeking process in the law diverges from the truth-seeking process in, say, science.

A scientist is taught to question everything and to reexamine every foundational assumption — to be skeptical of any given fact and open-minded about any possible alternative explanation for a phenomenon.

A judge reviewing a lower court’s decision, on the other hand, is prohibited from questioning certain things (like the lower court’s credibility determinations) and is required to make certain assumptions (like the assumption that the lower court knew the law, unless the lower court explicitly misstated it), regardless of whether or not these assumptions are true. Because of legally imposed “standards of review” and “presumptions” — created in the name of judicial economy and efficiency — it’s hard to win an argument that the lower court based its finding on wholly implausible facts or that the lower court didn’t know it had discretion to impose a lower sentence. Better to argue, if possible, that the court expressly violated the letter of a statute, or that the state of the law is ambiguous and in need of clarification.

One Response to “Week 2 continued: Appealing justice”

  1. November 06, 2012 at 6:19 pm, Week 3: Inside our juvenile justice system | Law School Disrupt said:

    […] critical to his well-being than the appeal the state is paying us to do, an appeal that has relatively little chance of changing anything for […]


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