The first thing I got to do on the second day of my independent study was watch a deposition for a medical malpractice case. A deposition is the process of questioning witness before trial, since both sides need an idea of what the witnesses will say to prepare their arguments. In this case, the lawyer I was working with, Mr. John Barron, was representing the defendant, and he was interviewing the defendant's expert witness.
This is a medical malpractice case in which the plaintiff sued her doctor after undergoing dry needle therapy, a westernized version of acupuncture, and suffering severe bleeding in the spinal cavity several days after receiving the therapy. The expert witness of the defendant, the doctor who performed the dry needle therapy, says that it is extremely unlikely that the needles used could have punctured the plaintiff's spinal canal, given the length of the needles and angle at which they were inserted, while the plaintiff's expert witness claims that the MRI images suggest that the plaintiff could indeed have been punctured by the needles used in the therapy. Given the highly technical nature of the debate in this trial, I asked Mr. Barron as we walked over to the building where the deposition would take place about how the jury would come to a decision on the matter . He said that an essential thing to understand about a trial is that is essentially a performance. The lawyers and their witnesses perform a dance of direct and cross examination to try to present the case in a compelling light to the jury, which is full of laypeople with minimal technical knowledge. He then proceeded to give a very insightful description of the primary advantage of the jury, which even Fritz said was a new way of thinking about it for him when I told him later. Mr. Barron said that one of the greatest advantages of the jury is that it has absolutely no power before it assembles, and it has absolutely no power after it dissolves. In this way, the jury is among the most effective ways to limit the power of a decision-making body to only when it is needed and prevent abuse. Mr. Baron discussed the fascinating psychological phenomenon of the collective judgement that arises in the jury as its members debate the case after hearing it. Despite the bias of each individual member of the jury, it is often possible for juries to ultimately come to a unanimous agreement on a divisive case after extensive deliberation. If that weren't the case, Mr. Barron said, it's extremely unlikely that the US would still use the jury system. (In fact, few countries beside the US still use the jury system now.) In Ohio, six of eight jurors must agree to a verdict in a civil case, while in a criminal case, the agreement must be unanimous. I'm curious about how the use of a judge vs. a jury tends to affect the results of cases, and whether the verdicts of either judge or jury trials tend to vary by the technicality of the case. Once we arrived at the building where the video conference deposition was taking place and set up the technology for the conference call, the deposition began. Overall, the attitude felt notably similar to a trial. Mr. Barron's co-counsel was questioning the plaintiff's neurosurgery expert witness who was calling in from Boston, and the plaintiff's attorney was also calling in to monitor the deposition. Mr. Barron's co-counsel started off with basic questions about the expert witness's opinion on the facts of the case, but the questions quickly became more technical. There were a few things the expert witness seemed surprisingly unaware of, and his occasional lack of information will likely ultimately help the defendant's case. At times, Mr. Barron's style of questions seemed almost like direct examination questions, inviting narrative answers, while at other times, his questions became more like the leading questions commonly seen in cross-examination. Several times throughout the deposition, the plaintiff's lawyer objected to questions that Mr. Barron's co-counsel asked, and the expert witness usually just stopped talking. I noticed that the questions that the plaintiff's lawyer objected to tended to be only the most leading questions that Mr. Barron's co-counsel asked, and these questions could have made the plaintiff's case look pretty bad if the expert witness had answered them as the defense wanted him to. I asked Fritz about when a lawyer is allowed to raise an objection when their witness is being questioned in a deposition, and he said that there were two primary circumstances in which this can happen: the lawyer asking the question may be asking the witness for confidential information, or the lawyer asking the question may be falsely assuming facts. Interestingly, when the witness's lawyer makes an objection, they are generally not permitted to say anything more than "objection," because there have been instances in the past where the witness's lawyer leads the witness by saying what they want the witness to say after they object. Later in the day, I went with Fritz to a metroparks meeting, which is another good example of something an experienced lawyer may do when not practicing law. I learned a variety of things at the meeting, and one of the topics of conversation that I didn't have any prior knowledge of was tax investment financing, or TIF. TIFs are a specific method that a municipality can use to collect taxes from a specific area in order to fund projects that will spur development in that district that the people who live in that area will benefit from. When a municipality establishes a TIF, they determine a specific geographical district that the TIF will cover, and they calculate the total value of all the property taxes at the time that the TIF is established. This value is known as the base value. As the value of the properties increases due to inflation and other taxes, the property taxes go up every year, but the base value stays the same. Under the TIF, the municipality will collect all the money from property taxes that is above the base value for the specified period of time, while the district will continue collecting just the base value property taxes. Once the TIF time period ends, the district once again collects the full value of the property taxes, and the city ends up with money that they can use to fund projects in the area from which the TIF was collected.
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My independent study has been off to a great start, with the first day packed full of interesting activities!
Upon arrival at the Fritz's independent law practice building, Fritz and his co-counsel were on a conference call with the judge of a copyright case, so I had the privilege of listening to the conversation. Without getting into the confidential information, the case involves a freelance photographer suing a Pennsylvania-based company over the allegation that the company used her photos without her permission. In this case, the primary issue being debated is whether the photographer, the plaintiff, is entitled to actual damages or statutory damages. Actual damages represent the money paid to a victim that are intended to replace what the plaintiff lost in the violation of law, while statutory damages represent the money that the law mandates shall be paid to the victim, which is often much more than would be paid through actual damages only. If the judge rules that the photographer is entitled to actual damages only, she will only receive the money that she would have received from the company if the company had bought the rights to the photos and used them legally. However, if the judge rules that she is entitled to statutory damages, she would end up receiving far more money in statutory damages. In fact, according to Chapter 17 of the US Code, section 504, if the plaintiff can prove that the copyright infringement was willful, the victim is entitled to $150,000 in statutory damages for each instance of infringement. This puts hundreds of thousands of dollars at stake. After the conference call, Fritz introduced me to several other skilled lawyers, and Fritz, two of his lawyer friends, and I all went out to lunch together and discussed law. One thing Fritz explained to me at the table was the five broad divisions of modern law school curriculum: criminal law, property law, tort law, constitutional law, and contract law. Criminal law involves people who break criminal laws established by the government, whereas civil law (which encompasses the other three groups) deals with the violation of the rights of individual people or private organizations. Property law involves the rights and rules that come with owning property, which includes things such as cars, houses, and land. Contract law, while often intertwined with property law, is its own branch, in that it involves the promises that are made between people. Tort law was a completely new term to me, and Fritz explained it as the branch of law that is primarily focused on shifting the burden of a wrongful action to the person responsible for doing it. Unlike criminal law, which involves people's crimes against the state or society as a whole, tort law is focused on interactions between private individuals or companies. Tort law generally focuses more on compensating the party that was harmed than directly punishing the offending party, though often the offending party is required to pay the victim party, which serves as a form of punishment. Finally, constitutional law deals with interpreting state and federal constitutions to determine how society is structured at a macro level, though balance between the legislative, executive, and judicial branches of government. Another thing we discussed is the idea of legal standing. A person is said to have standing if they are directly affected by a situation to the degree where they have the right to sue. If a person doesn't have standing, then they can't sue or intervene in a case that is already in progress. This is in place to prevent interest groups from overwhelming a case and preventing a decision from being reached in a timely matter. After lunch, I accompanied Fritz to 8th floor of the government center for a meeting about several topics, one of which was dealing with disruptive members of the public at the Child Services building downtown. The people present, including a representative from child services, had an in-depth discussion about how to legally balance security with people's individual rights. It was very interesting for me to observe how Fritz continuously offered legal advice as the committee considered a variety options. I definitely have a better understanding of a lawyer's key role in such a meeting, since it's essential to have somebody with in-depth knowledge of the law ensure that all the solutions being seriously considered are legally realistic. A lawyer also may also be able to offer unique insights from their knowledge of similar cases. Overall, this meeting gave me a good impression of one thing some experienced lawyers do when they're not actively working on cases. Ever since I first participated in Mock Trial and Model UN, I've been intrigued to learn more about what people in the legal profession do each day. This motivated me to ask Fritz Byers if I could conduct an independent study at his independent legal practice, and he generously and enthusiastically accepted. I'm extremely grateful to him! My main goals for this independent study can be condensed into three primary areas:
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