The Legal Menagerie

Fall semester is fully under way and today seems like a good time to discuss a few legal idioms. Politicians, lawyers and judges like to use these phrases in addition to the other Latin terms and legal jargon that the profession requires. I can only presume they were afraid of making legal documents too easy to read (HA!) so they added in a bunch of other random crap, usually stuff about adorable animals. After all, if the law was easy to understand, any old joe with a high school diploma could figure it out and lawyers would be out of a job. Wait, no… I mean law school professors would be out of a job. Which would, of course, be tragic.

Here are just a few of the idioms your friendly neighborhood casebook will most likely contain:

“Belling the Cat”

As we all know, the modern-day bell was invented by Zack Morris in 1989, its primary use being to interrupt hilarious adolescent antics at approximately 27-minute intervals. I was shocked to learn that bells of olden days used to have other functions such as keeping the time, warning townsfolk of danger, and driving hunchbacks to madness. In the legal world, bells are often attached to cats so as to warn the mice of their impending doom. In this case the cat is something bad, like campaign corruption, the mice are lawmakers, and the bell is some sort of legislation designed to flag the bad thing, like a campaign finance reform bill. In order to “bell the cat,” some brave little mouse will have to run up to the hungry cat and put a bell on its collar (go out on a limb on some potentially explosive bit of legislation). The trick is to do so without being eaten by the cat, which can manifest in real life in myriad ways– perhaps losing the next election, being exposed to undue political pressure, or being revealed as a hypocrite when people find out you’re a bit of a cat yourself. I suppose that’s where the metaphor breaks down a little, unless the mice are really big, and in that case things get a lot less cute.

“Canary in the Mine”

On the off chance that you aren’t thrilled at the prospect of being a tiny rodent, guess what? You can be a colorful and melodious bird instead! The bad news is that instead of being murdered by a ravenous feline, you’ll be choking on toxic gases at the bottom of a dark and terrible pit of death. In real life, miners used to bring canaries with them into mines as a safety precaution. The idea was that if poisonous gas began to fill the shaft, the canary would die very quickly, warning the human miners in time for them to escape. In legal terms, canaries can be almost anything that is used to explore the mine, which represents any new theoretical frontier. Want to see if standardized testing improves children’s performance in school? Start a pilot program. Maybe the canary will sing you a beautiful song of college scholarships and maybe it will die in the fumes of performance anxiety. Either way, the important (voting age) miners make it out unscathed.

“The Dog Who Wouldn’t Bark”

Man, do legal scholars love animals! The Dog Who Wouldn’t Bark sounds like it might be an obedience school cautionary tale, but in fact it’s a reference to the Sherlock Holmes story “Silver Blaze.” The unusual silence of the guard dog during the commission of the crime provides Holmes with a vital clue and helps him solve the case. In legal terms, guard dogs are typically administrative agencies or oversight mechanisms used to monitor certain areas of law or government for abuse. When abuse or violation occurs, the dog barks and the agency intervenes to correct the problem. When the dog doesn’t bark, it must be either because nothing bad happened or the dog is friends with the bad guys and is happy to keep quiet. In the first case, cool. In the second case, not as cool. So basically this analogy has no reliable bearing on agencies, oversight, crime-solving, or the price of tea in China. Awesome, and also super unhelpful!

The Grand Ole Jury

Today is a good day, I think, for learning about the Grand Jury!

Grand juries are distinct from normal trial juries (petit juries) in several ways. A grand jury’s function is to determine whether or not a prosecutor has probable cause to press charges on a potential defendant. Without an indictment from a grand jury, a prosecutor may not proceed with the case. The process operates as a check on prosecutorial power and theoretically prevents unfounded or baseless prosecutions from wasting tax-payer money. In the federal system, grand juries are utilized only when the charge is for an “infamous crime,” while in the state system it varies.

Because grand juries are a pre-trial mechanism, they are not designed to assign guilt. The standard by which a grand jury measures the case is that of probable cause. Innocence is not at issue, and as such the potential defendant may not present his or her own case, and the rules of evidence don’t apply. Grand juries may listen to hearsay and look at whatever documents the prosecutor can put in front of them, regardless of whether or not such evidence will be admissible at the real trial. Of course, the grand jury must be convinced by what the prosecutor shows it that there is a case to be made, so we all hope that ridiculous or irrelevant information will be weeded out by good sense. We hope.

The grand jury does have a good amount of autonomy. Although the prosecutor suggests witnesses and evidence to the group, nothing can be brought into the grand jury without a grand jury subpoena. So to some extent, the grand jury may opt to take or reject the suggestions of the prosecutor, although for the most part they follow along. However, there are times when a grand jury may choose to pursue a line of questioning it feels has been overlooked by the prosecutor (often due to suspicions of corruption on the part of the prosecution). In these instances, grand jury subpoenas may issue for witnesses or evidence not suggested by the prosecutor.

Grand jury proceedings, unlike petit jury proceedings (otherwise known as trials) are held in secret. This is a precaution against the release of inadmissible evidence to the public, as well as the unnecessary maligning of potential defendants who may never actually be charged with a crime. If, after examining all the evidence before it, the grand jury believes that there is probable cause to charge the defendant, they will issue an indictment. THEN the defendant must go to trial, where he or she may present a defense and be judged according to all the rules you see on television! Ahhh, television. The bastion of all legal understanding in our great country.

Cover Letter Girl

Tomorrow is my first day of class for Fall 2011. You might assume that I spent this last week relaxing during that oh so brief window of time between work and school. You’d be partially correct. I watched a lot of Criminal Minds and applied for judicial clerkships, both of which raise my blood pressure.

A clerkship is an optional intermediate step between being a law student and being a lawyer. It involves working for a judge for a relatively short term, typically one to two years. It’s a sort of apprenticeship for the budding young lawyer, an opportunity to sit in court, learn from their judge and make professional connections. The tricky part of it is that there are only a handful of judges hiring every year and literally thousands of students applying for those spots, not to mention the fact that many of the positions are pre-filled by students who have personal connections with certain judges. So in some ways, getting a clerkship is kind of like finding a needle that is actively hiding from you in a stack of pins while rabid mongeese gnaw at your ankles.

Applying for jobs of any type inevitably involves writing cover letters. The ideal cover letter should act as an excellence-illuminating flare, one that catches the eye of your intended employer, reveals all of your best attributes and includes the tantalizing promise of more to come if he or she offers you the job. It must simultaneously be demure and humble, ensuring the employer that you’re not a totally self-absorbed tool. One must be unique but not weird. One must never, EVER express doubt that you are the single most qualified person for this job, but mustn’t seem conceited.

Last night I finished my very last clerkship cover letter, and I have to say it felt GOOD. Applying for jobs is tedious and awkward. Now that I’m done, I can feel free to be filled with all the neuroses and quirks that make me awesome in a purely non-employable way… like the fact that I have extensive arguments with my dog Penny when I’m home alone. And that she almost always wins.

Now if you’ll excuse me, I have to go stand in the rain until the dog decides she’s ready to go back in.