🚀 go-pugleaf

There is a very good CALI on Evidence.  Two days with it got me a
Distinguished (our grades are Distinguished/Honors/Pass/Low Pass here)
in Evidence, so I highly recommend it.

--Tim Smith

My son will be attending law school in the fall and I told him I would get him a computer. I was wondering what would be a good system for law school. He wants a portable of some type. Any recommendations ?????


Ed Bank 

What's a CALI?

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Steven Alexander
Comp Sci grad student                           stevena@cs.berkeley.edu
& non-practicing lawyer

In article <2o27ci$l99@gazette.esd.sgi.com>, Ed Bank wrote:
> My son will be attending law school in the fall and I told him I would get him a computer. I was wondering what would be a good system for law school. He wants a portable of some type. Any recommendations ?????

Check in PC Magazine or one of those types and you'll find a myriad of
low-cost portables that would make a great machine for your son while he
is in law school.

Hope this helps ....

*********************************************************************
  Paul E. Achuff, Sr.              "Where's the ANY key?"

  paula@comtch.iea.com

  Software Services Plus, Spokane, Washington, USA
**********************************************************************

In article <2o0gk0$jfj@news.u.washington.edu>, Tim Smith wrote:
> There is a very good CALI on Evidence.  Two days with it got me a
> Distinguished (our grades are Distinguished/Honors/Pass/Low Pass here)
> in Evidence, so I highly recommend it.
> 

What is CALI?  Where is it available?

**********************************************************************
  Paul E. Achuff, Sr.              "Where's the ANY key?"

  paula@comtch.iea.com

  Software Services Plus, Spokane, Washington, USA
**********************************************************************

In article <2o0gk0$jfj@news.u.washington.edu>,
Tim Smith <tzs@u.washington.edu> wrote:
>There is a very good CALI on Evidence.  Two days with it got me a
>Distinguished (our grades are Distinguished/Honors/Pass/Low Pass here)
>in Evidence, so I highly recommend it.
>
>--Tim Smith

No offense Tim, CALI can be helpful but not everyone has Junker for 
evidence.......

From a non-geek computer user I will do my best to explain, please no 
flames if I use inappropriate terminology to define "CALI".

The law school I attend (and many others) has computer programs which are 
used as study aids for various subjects.  CALI stands for computer 
assisted legal instruction or some such nonsense.  Basically the programs 
involve hypotheticals and questions.  You type in a brief answer and 
depending upon whether or not you answer "correctly" you get another 
chance or the opportunity to justify/explain your answere where there is 
no single correct response.  I have used them for Evidence and Civil 
Procedure.  They also have them for Con Law, Property and other areas.  
They can be very useful especially for lazy professors who give objective 
short answer or multiple choice type exams with questions that are thinly 
disguised CALI hypos.

They are fun, and help you learn rule type rote subjects but I found them 
less than inspiring in terms of analytical evaluation of policies behind 
various rules.  I can still remember the Evidence CALI, a long series of 
hypos based on the Lizzie Borden case.  Like should testimony by the town 
druggist that Lizzie was in buying arsenic a week before the murders be 
admissible...  To give you another example there was a slip and fall hypo 
set in a grocery store and wife told the paramedic that her husband 
slipped on spilled Catsup.  Is it hearsay?  What exception, if any would 
apply?  That is the general idea of the questions.  If you respond that 
it would not come in the program tries to help you out, it asks you to 
consider X...  and then asks you if you want to change your answer.  Of 
course it does this with correct responses too, just to try and trick you.

From my notebook of insane law school experiences...

Stephanie

In <HeffjCJwXaam057yn@comtch.iea.com> paula@comtch.iea.com (Paul Achuff) writes:

>In article <2o27ci$l99@gazette.esd.sgi.com>, Ed Bank wrote:
>> My son will be attending law school in the fall and I told him I would get him a computer. I was wondering what would be a good system for law school. He wants a portable of some type. Any recommendations ?????

>Check in PC Magazine or one of those types and you'll find a myriad of
>low-cost portables that would make a great machine for your son while he
>is in law school.


Although not in Law School, my girlfriend is.  Let me give you
some experiences that I have from helping her with computers in
law school.


First, there are a number of considerations.  

1.  How much does he know about computers?
2.  Is where he is going to school the same location
    that the computer is at?
3.  How much money are we talking about?


The first two questions deal with potential problems with the
computer.  It is true that I could go to PC Mag and find
a low-cost clone.  I would do that myself, but that's because
most of the problems (hardware and software) that could go
wrong would be fixable by myself or someone I know.  Most
of the problems with computers will happen in the
first 6 months, so the last thing you want to happen is
to buy a cheap computer (saving maybe 300 $) and have it
go out right before your sons 1st semester finals.  From what
I pick up from this group, the first and second semesters are
it as far as "success".  If you screw up the first year your
destined for ambulance chasing (bit of an overstatement, agreed).


So, let me assume that your son has low-medium knowledge of computers.

If he is going to law school in the same city where you will buy the
computer then if it malfunctions he could just bring it in to the dealer
and have it fixed quickly.  If you bought it from a magazine you
would typically have to ship it to them for repair.  Much more time,
and a bigger headache just when the rest of his life should be
calm.

If he is going to a city different than you, find a national chain
to buy it from that has an office in his new city.

As far as brand, don't buy a cheap computer.  There is a reason why
they are cheaper.  If it's PC, go for the brand names (Toshiba, 
IBM, Sharp, etc).  

You get what you pay for.  My girlfriend orignally had a  clone laptop
from a company that had gone out of business.  The batteries for
this thing cost 400 $ because they stopped making them.  I sold it
to someone and bought a less full featured brand name, and she has
had no troubles.


What type?  Depends on money, of course.  My experience from dealing
with this and my girlfriend is to buy a lesser loaded computer and
buy some good peripherals.  What I would suggest:

Computer (Mono or Passive Color, 4 Meg Ram, 120 Meg HD).  When using
Dos and Stacker or Doublespace a 120 Meg Harddrive will fit about
200 Meg on it.

Get a fast modem, either a PCMCIA modem or an external pocket modem.
I would go for an external pocket modem, but you have to make
sure that the computer has enough ports for the modem, mouse, and
printer.  I think that external pocket modems go for about  180 $ or so
for decent ones.


Did I mention printer?  Oh yeah, my girlfriend has a cheap Epson printer
that takes about 4 minutes/page to print.  When she wants to print
a 30 page document she can come over to my place, use my laser printer,
have dinner, and be back at home before her printer would be done.
I don't think a laser printer is necessary, but a good printer would
be very useful.


In short, (if you doubt that I can be short, read on ...), If I had
3000 to spend:


External Pocket Modem (14.4)  Viva Brand                     238.00
Printer: (Lower end HP, Panasonic, Star Laser Printer)       600.00
Computer:  Compaq LTE Lite 4/25 (4,120)                     2000.00
Additional Battery:                                           50.00


Or, if you wanted some color , you could do:
External Pocket Modem (14.4)  Viva Brand                     238.00
Printer: (Good ink jet)                                      400.00
Computer:  *AST Bravo NB, Dual Scan (4,120)                   2300.00
Additional Battery:                                           50.00

*  I recently read an article that has elevated my opinion of
AST's from one of those brands that I would avoid to one
that I would buy.   

The extra battery would give about 4-6 hours/day of computer
use on batteries, probably enough for all classes.


I guess my philosophy is if you are going to do it, do it right.
If you want to spend less, you can certainly get lower featured
components for eveything listed above.  For example, a 9600 baud
modem might be enough because it seems that that is all 
Westlaw and Lexis (us?) can handle. I think that would be about 120 $ or
so.


Well, hope this helps.  At least I hope it doesn't hurt.  My prices were
out of "Computer Shopper", so you could expect retail stores to
be about 10% higher.  But then again, my magazine is about 3 months old,
so it is likely that prices have dropped.




mark



-------------------------------------------------------------------

Mark Coyle
PhD Candidate, Computer Science Department
0L, U of Minn Law School entering in Fall 1994

U of Minnesota
Minneapolis, MN  55414

coyle@cs.umn.edu
coyle@dexter.psych.umn.edu
-------------------------------------------------------------------

The question was:
>
>A has sued C for injuries received in an automobile accident.  F, a 
>passenger in A's car, testified on direct examination that C caused the 
>accident by turning without warning into the traffic lane occupied by A's 
>vehicle.  On cross-examination, F specifically denied telling an 
>insurance investigator for F's insurance company that A had been speeding 
>at the time of the accident.  Later in the trial the insurance 
>investigator testified that F had told him that A had been speeding.  
>During the cross-examination of the insurance investigator, A's attorney 
>has the investigator authenticate the report of the interview that the 
>agent prepared and F signed.  The report contains the following: "We were 
>in a hurry to get to an appointment, but I knew we would be late.  The 
>traffic was so bad that we just couldn't move very quickly.  And then C's 
>car cut right in front of us."  A's attorney now offers the report into 
>evidence.  Should it be admitted?

My tentative answer is:

The report signed by F is hearsay if it is an out of court written 
assertion used for the purpose of proving the truth of the matter 
asserted.  FRE 801(a), (c).  Before considering hearsay use, though, 
there are two non-hearsay uses of the evidence.

First, the report could be used as a prior inconsistent statement to 
impeach the testimony of the insurance investigator.  Regardless of 
whether the statement is true, the fact that it was in the investigator's 
report undermines the probative value of the later testimony at trial.  
Second, the report could be used to bolster F's credibility, which has 
been impliedly been attacked by the investigator's testimony.  The first 
use seems permissible; I'm not sure whether the second use is permissible.

The hearsay use of the report is governed by FRE 801(d)(1).  If used 
against the insurance investigator, 801(d)(1)(A) controls.  The 
investigator is available at trial and would be subject to 
cross-examination.  The report appears to be somewhat inconsistent with 
the testimony at trial, but may in fact not be.  Regardless, the report 
should not be admitted under this section because the investigator did 
not make it under oath subject to the penalty of perjury.

F appears to be available at trial and subject to cross-examination.  If 
the investigator's testimony is an "implied charge . . . of recent 
fabrication or improper influence or motive," then the report can be 
admitted to rebut this inference under FRE 801(d)(1)(B).  The report is 
consistent with F's testimony because he states traffic prevented them 
from driving "very quickly" (i.e., speeding).

The report is relevant to show whether it was more likely or not that A, 
not C, caused the accident by speeding.  FRE 401.  Assuming the report is 
admissible for its truth under a hearsay exemption, the judge may still 
exclude it if the probative value is substantially outweighed by 
consideration of undue waste of time.  FRE 403.  Since the Federal Rules 
have a bias towards admitting evidence, this evidence probably would be 
admissible.

Did I miss anything?

Fred

I have the CALI Evidence exercises.  They are DOS-based, rote study 
aids.  They ask a question, you press one of three buttons (or type in a 
word) and then the program gives you a right, wrong, maybe screen.  They 
are marginally useful.

Does anyone know if there are any better uses of computer technology in 
law school?  I was hoping to get a newsgroup off the ground at Boalt, but 
there are few takers.  What about any Windows-based software?  I heard an 
attorney has put the Federal Rules of Civil Procedure, the Rules of 
Evidence and the Federal Constitution into Windows Help format.  Does 
anyone have this or know where to get it?

Virtually,
Fred

The question was:
>D is charged with possession and sale of narcotics.  As part of her 
>defense she offers to testify that she has never been arrested or 
>convicted for anything more serious than a minor traffic violation.  
>Should the prosecutor's objection to this testimony be sustained?

My answer is:
Evidence that D never broke the law is relevant on two grounds.  First, 
it shows that D has a good, law-abiding character.  Therefore, it is less 
likely that she possessed and sold narcotics.  Second, this evidence may 
show that D is in the habit of obeying the law.  Again, if this shows D's 
law-abiding habit (if such a thing exists), she is less likely to be 
guilty of the crime charged.

In general, character evidence offered to prove action in conformity 
therewith on a particular occasion is not admissible.  FRE 404(a).  
Evidence of other acts besides the one charged is not admissible to prove 
character in order to show action in conformity therewith.  FRE 404(b).  
Evidence that D was not arrested or convicted seems like it should 
logically be treated in the same was as evidence that she was arrested or 
convicted would be, in the same way that action or non-action can be an 
element of a substantive crime.  However, I'm not sure if FRE 404(b) does 
apply to evidence that establishes that an act did not occur.  If it 
does, this evidence can't be admitted for its character use.

404(b) would allow the evidence to be admitted "for other purposes, such 
as proof of motive, opportunity, intent, preparation, plan, knowledge, 
identity, or absence of mistake or accident."  Assuming we're treating 
non-acts like acts, should the rule be extended to the complete mirror 
opposite?  That is, evidence that D was not arrested used to show she had 
no motive, no opportunity, etc.?  The rules do not seem clear on this 
issue, perhaps because the probative value of such evidence is so small.  
Under 403, the probative value of proving that D had no prior record 
seems to be outweighed by the dangers of delay or confusion of the 
issues.  If the evidence of no prior arrested were controverted, a 
"mini-trial" could ensue to establish whether in fact D had no prior 
record.  No prior record seems to me to be a factor that the judge should 
take into account at sentencing, but should not be submitted to the jury 
as part of its fact-finding mission for the case at issue.

Evidence of no prior arrests or convictions does not seem to show a habit 
under FRE 406.  The difference between "habit" and "character" is a 
tricky one, but the Advisory Committee's Note states that "adequacy of 
sampling and uniformity of response are key factors."  Or, in McCormick's 
words, "[Habit] describes one's regular response to a repeated specific 
situation."  Obeying the law in the course of ordinary life does not seem 
to fit this definition.  An additional factor that adds content to the 
term "character" is the moral connotation of always obeying the law.  A 
common use of the term "character" is to refer to a person's propensity 
to obey the law.  Thus, D's evidence would not be admissible as proving 
habit under FRE 406.

Anyone else have any thoughts on this?

Fred

Here's another evidence question.  I'll provide my answer within a week.  If 
there are objections to the cross-posting, I'll post follow-ups to 
ucb.boalt only.

This is based on a California case.

P, a resident near the D Airport, sues D Airport to recover damages for 
physical injuries and emotional damages sustained because of jet aircraft 
noise.  P's complaint alleges a hearing loss and emotional distress 
resulting in ulcers and high blood pressure.  

By interrogatories, D seeks 
from P all ailments, physical or mental, suffered from whatever cause, 
during P's lifetime, and the names of all treating physicians and 
psychiatrists.  

P refuses to answer and D seeks a court order to compel P 
to answer the interrogatories.  P resists, claiming the physician-patient 
and psychotherapist-patient privileges.  D urges the patient-litigant 
exception to compel disclosure.  

Should P's claim of privilege be sustained?

-- 
bross@uclink.berkeley.edu (Bonnie Ross)
Boalt Hall School of Law
---

This is a follow-up to my previously-posted evidence question on P's suit 
against an airport.  The source of this question is Judge Jefferson's two 
volume benchbook on Evidence (1982).  I was told that Kaplan, et al, 
lift their problems from Jefferson.

I'll post Jefferson's answer in the next message.

The question is "should P's claim of privilege be sustained?"  I'm going 
to pretend that the question was broader just to go through more of the 
privileges-dance.

This is a California case, but if it were federal, under FRE 501, 
privileges in civil actions are determined in accordance with state law.

CA Evidence Code ("CEC") 994 and 1014 provide that a patient has a 
privilege to refuse to disclose a confidential communication between the 
patient and physician or psychotherapist.  Here, P was a patient, so 
there's no problem of whether the person asserting holds the privilege.

D has the burden of proving that the communication was not confidential 
under CEC 917.  D is not claiming no confidentiality, so we don't need to 
inquire into whether D has met that burden.

With regard to whether the info sought was a communcation, CEC 992 and 
1012 state that a confidential communication includes a diagnosis made by 
the physician  and psychotherapist.  The rationale for the privilege is 
to encourage full disclosure to aid in treatment.  The "ailments" D wants 
to know about would require P to reveal his doctor's diagnosis, thus the 
communications D seeks would qualify as confidential communications.

P has not waived the privilege in any way.  P did not fail to object, 
consent to disclosure, or call the doctors as witnesses.

CEC 996 and 1016 provide that there is no privilege "relevant to an issue 
concerning the condition of the patient if such issue has been tendered" 
by the patient.  In _ In re Lifshutz _,  the CA S.Ct. found that a 
patient's communications to his psychiatrist had lost their privileged 
status when the patient put his mental condition in issue by seeking to 
recover damages for mental and emotional distress.  Similarly in the 
question posed, D can argue that by claiming physical injuries and 
emotional damages, P has put his medical and psychological history at issue.

P's doctors won't be able to argue that their constitutional right to 
privacy is infringed, since the CA S.Ct. settled that issue in favor of 
disclosure in _Lifschutz_.

The problem is that D's demand is too broad.  P has not put all his 
ailments, from whatever cause, during his lifetime, in issue.  P has only 
tendered the issue of his injuries and damages from the aircraft noise.  
Thus the patient-litigant exception would not deprive P of his privilege 
as to a communication with his doctors regarding, say, the leg he broke 
while skiing or the counseling he sought while going through a divorce 
prior to when he lived next to the airport.

P's claim of privilege should be sustained with regard to communications 
between P and his doctors that fall outside the scope of the litigation.

Might D argue that he needs P's entire history because P's condition was 
caused by something other than exposure to airport noise?  I wouldn't 
know -- I don't see any guidance in the rules and we haven't covered case 
law on this.


 -- 
bross@uclink.berkeley.edu (Bonnie Ross)
Boalt Hall School of Law
---

Here's Judge Jefferson's answer to the airport problem:

P's claim of privilege should be sustained.  (See _Britt v. Superior 
Court_ (1978) 20 C3d 844, 143 CR 695.)

In Britt, the court held that the patient-litigant exception, which comes 
into play when the patient tneders the issue of his physical or 
emotional condition, does not waive the privileges for physical or mental 
conditions not specifically in issue by his lawsuit.  Thus, D Airport was 
not entitled to obtain the lifetime medical histories of P by invoking 
the patient-litigant exception to the physician-patient and 
psychotherapist-patient privileges.  The Britt court reaffirmed its 
previous  views in _In re Lifschutz_, and _Roberts v. Superior Court_ 
that the patient-litigant exception was to be given a narrow 
interpretaion as to the waiver of these privileges resulting from a 
patient suing and putting only specified medical and mental conditions in 
issue.  Here, P's lawsuit put in issue only a hearing loss and emotional 
stress resulting in ulcers and high blood pressure -- not every ailment 
in his lifetime for which he had ever sought medical or psychiatric help.

-- 
bross@uclink.berkeley.edu (Bonnie Ross) Boalt Hall School of Law
---