This Symposium is partnered with a program presented by the Stetson Law Review and Stetson’s Office of Continuing Legal Education, Bridging the Gap between Evidence and Advocacy.’ When the Stetson Law Review contacted me, outlining the program and asking my advice on the feasibility of such an undertaking, I was out of state and knew I would be so for the duration of the planning stage. Consequently, my response was easy: ‘Yes, do it!” But never in my wildest dreams did I anticipate the availability of the distinguished group of presenters that the Stetson Law Review would secure. The authors of the articles in this Symposium issue are surely the “Who’s Who” of evidence and advocacy teachers in the United States.
Page 1 of 4
I know it is not fashionable to speak this way, but I must confess, I love the law of evidence. Applying the law of evidence is what separates lawyers from the citizenry; it is our currency in the courtroom. The law of evidence is a friend of the trial lawyer and it gives judges the opportunity to be fair. It also provides trial lawyers with a game plan on how to be persuasive in ways that often have little to do with winning or losing the objection and everything to do with reminding the jurors why they are in court and entitled to the verdict. Two commentators, both former judges and trial lawyers and current evidence teachers—one of whom is an author in this Symposium—put it well: The Rules bring real life, with its strengths and weaknesses, into a courtroom, to be presented, in most cases, to an untrained audience. The audience will create its own version of the story of the case, reflecting each member’s life experiences and intelligence.
When a trial lawyer becomes a trial judge, the earth moves. Nothing in the trial lawyer’s training or experience prepares him or her for the role of neutral arbiter. Everything looks and sounds different. It is not just that he or she has acquired the power to decide. It is more than the fact that all participants are looking up at him or her, waiting for a ruling. The real change is the realization that he or she now has to be right as often as possible. People are looking.
It has been twenty-five years since the first time I walked up those steps to the highest chair in the courtroom. On that day, I learned two important lessons. First, I realized that everyone was standing because some guy with a gun was telling them to, a point that seems obvious but is really hard to grasp, if not retain. Second, I realized I had to rule in favor of somebody and, obviously, against somebody.
This Article will address the following question: What makes a judge rule one way and not the other?
In 1871, Salomone Mortara was undoubtedly the most famous Italian Jew in the world, though for reasons that had brought him nothing but heartbreak. Thirteen years earlier, Salomone and his wife Marianna had been living with their eight children in the City of Bologna, which at the time was under the authority of the Papal States. On June 23, 1858, the Jewish couple’s six-year-old son Edgardo was seized by the papal police and taken directly to the Vatican, where he was subsequently adopted by Pope Pius IX.
It seems that about five years earlier a fourteen-year-old Christian domestic servant in the Mortara home, fearing that Edgardo might die from a childhood illness, had sprinkled a bit of water on the boy’s brow while he slept, whispering “I baptize you in the name of the father, of the Son, and of the Holy Ghost.” This act, it turns out, was sufficient under Canon law to constitute a baptism Unbeknownst to him or his parents, the sleeping Edgardo was instantly transformed into a Catholic.
When I told my cousin-in-law Gary Ruben, a lawyer in Chicago, that I had agreed to write an article for a Symposium on trial advocacy in the twenty-first century, he responded incredulously, “We are supposed to be doing something different than trying to make a jury understand what happened and be persuaded by our version of the events?” Well, Gary, in one sense you are absolutely correct to be skeptical because the objectives of trial advocacy that you described have remained immutable, regardless of the century. However, two interrelated changes are occurring as we enter the new millennium that must affect the way trial lawyers present their cases to the jury — the evolution in the demographics of the jury pool and the revolution in technology that has transformed how our new breed of juror receives and is presented out-of-court information.
The doors of the movie theater fly open. Crowds of moviegoers pour out. They are somber. A few talk quietly, but none are smiling. Some are crying, while others just sniffle. What has affected them so? Leonardo DiCaprio has just gone down with the Titanic. Next door, a crowd sits in the dark on the edge of their seats. Some have their hands over their eyes. Others suppress a scream. The T-Rex has just eaten a lawyer in Jurassic Park. Across town at the airport, a man sits in the lounge reading a well-worn paperback novel. He turns the pages methodically, his eyes never leaving the pages. Nothing breaks his concentration — the crowds, the blaring loudspeakers, the general hubbub of thousands on the move. On the next aisle another person reads a paperback, dabbing moist eyes with a tissue. A few miles out of town, gathered around a roaring campfire, listeners shiver slightly as they hear a tale of haunted woods and visitors in the night.
Some commentators have suggested that, in the United States, trial by jury is becoming trial by expert. It is undeniable that the use of expert testimony is widespread. In the early 1990s, the Rand Corporation released a study on the incidence of expert testimony. The database included 529 civil cases tried in California Superior Court. The researchers found that [e]xperts testified in 86% of these civil jury trials. Overall, there were an average of 3.3 experts per trial; in the trials in which any experts appeared, there were an average of 3.8. Most trials with experts had two, three, four or five of them.
The State of Florida holds title to thousands of miles of real property in public trust for the people of Florida. Miami’s South Beach, a well-known tourist and recreational hot-spot, is included in this property. “In 1982, the State [of Florida] entered into a management agreement with the City [of Miami (the City)] allowing the City to manage South Beach.” The management agreement (1) provided that the State “holds title” to the beach property; (2) granted the City “management responsibilities” of the beach for twenty-five years; (3) required the City to submit a “management plan” providing for the “limitation and control of land and water related activities such as boating, bathing, surfing, rental of beach equipment, and sale of goods and services to the public;” and (4) required the City to pay the State twenty-five percent of revenues collected from private concessionaires.
The City, County and Local Government Law Section of The Florida Bar, in conjunction with Stetson Law Review, is pleased to present this Eighteenth Edition of the Local Government Law Symposium. On the one hand, this Symposium is filled with Articles and Last Words that offer current practical advice to the local government attorney. On the other hand, it highlights trends and themes in local government law worthy of our thoughtful analysis and study.
After the events of September 11, 2001, the tension between violence and civilization, individual rights and security, and the minority and the majority have come into focus in new ways. This Symposium discusses and explains many such tensions.
Many states have enacted programs to enable families to send their children to private schools. These programs range from vouchers that pay part or all of the child’s private-school tuition, to tax credits or deductions for private-school tuition and other expenses, to tax credits for donations to “tuition-scholarship organizations,” charitable organizations that provide scholarships for students to attend private schools.
As the Supreme Court has recognized, the goal of assisting low-income families in sending their children to the school of their choice is legitimate and even laudable. In Committee for Public Education and Religious Liberty v. Nyquist, the Court noted that “the tailoring of [a state program] to channel the aid provided primarily to afford low-income families the option of determining where their children are to be educated is most appealing.” Because the substantial majority of private elementary and secondary schools are religious schools, however, such programs raise issues of governmental subsidization of religion and are subject to constitutional challenge under the Establishment Clause of the First Amendment of the United States Constitution. In addition, not only do states have their own constitutional prohibitions similar to the Establishment Clause, but many also have additional constitutional provisions containing language that appears specifically to bar government aid to religion, religious instruction, and religious institutions.