Phillip Toutant – Summary Disposition

The “global economic crisis” has reached the July 2009 Michigan Bar Exam. Through this debacle, Michigan’s people and industries have been some of the most impacted in the country. Given this, the Michigan State Board of Law Examiners was wise to make financial problems prominent on this summer’s bar exam.

Over a quarter of the essay questions on the written portion of the July 2009 exam directly dealt with financial problems. Here is a summary of directly recession-related topics on the essay portion of the July 2009 Michigan Bar Examination, by topic:

#8    Workman’s Compensation. An auto worker is injured, and his employer – a component supplier – gave him a “[non]meaningful” replacement job. As the recession deepened, the component supplier terminated the worker’s meaningless job, assuring him that he would receive unemployment compensation, rather than workman’s comp. weekly wage loss benefits.

#10    Professional Responsibility. A partner in a law firm set up a real estate investment entity on behalf of a managing investor. The partner left, taking his client. The real estate investment company did not turn out to be that profitable, as evidenced by the fact that the non-managing investors decided to sue the managing investors (including the former partner’s client. They retained the partner’s former law firm, creating a conflict of interest.

#12    Corporations. Stockholder derivative suit. A mortgage lender issued the stock as the foreclosure crisis began. Soon, the company’s stock value was decimated. Thus, stockholder sued mortgage lender for the issuance of stock to management employees, arguing violation of the directors’ fiduciary duties.

#15    Real Estate. The appropriate grand finale. Mortgage priority dispute between a purchase money mortgage lender and a second mortgage lender.

On a side note, I, personally, think I passed the exam. It will take until November, however, to find out.

I am a Juris Doctor! As of tomorrow, it is official. Woo hoo! It has been a wild ride. Irrespective of all the work, it was a ton of fun.

Next up, the Michigan Bar Exam.

I went to Seattle for a Mock Trial tournament from Wednesday, 2/25 through Sunday, 3/1. Along with my coach and teammates, I participated in the American Association of Justice (AAJ) regional mock trial tournament at the King County Courthouse in Downtown Seattle.

Wayne Law AAJ Team (minus myself)

The competition was from Friday through Sunday, and it was an intense couple of days. Though we have not yet received our results, we suspect that the team won two rounds and lost one. We wanted to go undefeated, but obviously, we could have done much worse.

We argued a civil premises liability/wrongful death case. The case can be summed up like this: guy has shady business connections; guy goes on vacation with wife; guy goes to hotel prior to catching his flight; hotel has bad security system; guy is robbed and shot “execution style” (once in the back of the head) after a struggle in the parking lot. Widow sues hotel and the parties fail to settle.

It was a pretty tough case for both sides – lawyers that heard our arguments before we left agreed that they would not “sign the case up” with their firm, given the facts and the decedent’s association with organized crime. We, however, did not have that option.

I also got a chance to get out and see the Seattle area, and was pleasantly surprised. It was (relatively) warm, and did not rain cats and dogs constantly, like I thought it would. When it did rain, it was light and consistent. Sunday was 50ºF and rainy. I was surprised by the number of people staying active on what I thought was a dreary day. There were at least ten sailboats out on Lake Washington. The University of Washington softball team was playing Boise State, the fans in slickers and umbrellas. People were even playing tennis on campus! For as active as everyone seemed, my friend – a Washington resident/Michigan expat. – was less optimistic about the Western Washington weather – he is planning on moving to Virginia come summer. He has spent four years in the Seattle area, and the seven months of mostly clouds and rain got to him.

Lake Washington - 3/1/2009

For me, the dreary weather was mitigated by the the overflowing coffee. It was everywhere. The good stuff, too. It seemed that there were baristas on every corner – and not just Starbucks (which originates from Seattle). For me, and with that amount of coffee, the city could have been in a constant state of freezing ice blizzard, and I still would have found it pleasant and productive.

I finally shot a deer! After years of buying licenses, sitting out in the cold and seeing nothing, success!

The Dog, The Deer, And Me

The photo does not illustrate it well, but this is a four-point buck: three points on one side, and one long crooked spike on the other.

Ok, so it is not the largest deer ever. And its antlers are a little deformed. And crooked. Nonetheless, I am still elated for my first deer hunting success.

I do not think I can call myself “world’s worst hunter” anymore. I must say that I am a little sad to abandon this self-anointed title. Before the deer, I had been hunting dozens of times, and had gotten nothing but one roughed grouse, a squirrel, and quite a few cases of what was bordering on hypothermia. It was comical, sort of.

This hunting success was a nice boost, going into the finals season. Hopefully, my luck and perseverance will continue through my bankruptcy exam…

I have not posted many photographs on my blog recently. This is for a reason. Loyal readers (since I publish bi-monthly, I doubt there are any) must have noticed that my postings no longer contain any original photographs.

It is because I blew up my digital camera’s charger in Croatia this summer. It was sort of like this:

Photo of an electrical storm taken by S.R.S. Barnes

Sort of like that, except taking place thirty feet to the right of where this awesome photo was taken. And inside my camera’s charger. Wish I would have read the max voltage on the side of the transformer.

Another travel lesson learned.

Once this blunder is corrected I will continue posting photos, including those taken during my Eastern European Roadtrip – those taken before my camera charger exploded, that is.

In my first substantive blog posted on this site, I spoke of my hope of finally getting a high-quality coffee maker out of the Black and Decker DE790B. I thought that the DE790B would make my coffee well into my thirties.

I was wrong. The DE790B is dead. Not the decanter like the last two, though – she just stopped heating the water this morning. This means that I have killed three coffee makers since I started law school. Unbelievable. I will have purchased four coffee makers over a two-and-a-half year period.

I would write more about this abomination, but I need to get to a coffee shop, and then a department store, so I can get a cup of coffee, a new coffee maker, and then get to studying.

Normally, I am critical of my alma mater, Lakeview High School, pledging to send my children to private schools. Today I have altered my criticism, slightly.

Lakeview Public Schools is a trendsetting district. For example, it, like the prestigious Bloomfield-Andover High, adopted a math curriculum known as Core Plus, developed by Western Michigan University. This program has been strongly criticized for its focus on “real-world” mathematics rather than more theoretical traditional math, and flat-lining ACT scores. Personally, I feel that I learned more about math in my advanced physics and chemistry courses than I did in Core Plus.

My history program merely required a class on U.S. history, which almost exclusively tracked Howard Zinn’s (left-of-center) The People’s History of the United States’ section on the 20th Century. I learned a great deal about American Proxy imperialism and pre-Brown v. Board segregation. That was it. I did not learn what the magna carta was until I went to law school. I had simply not been told, and had no reason to find out for myself. Perplexingly, we were taught some ancient and world history in our English classes, of all places, but they myopically focused on the arts and humanities. For example, I can still pick Giotto’s Bell Tower, the Pantheon, and the “Pendulum Theory” out of a police lineup, if required. However, I left high school with no concise idea of how the Roman Empire fell, what caused World War I,* or why the United States was formed the way it was.

Today, however, I embodied a small victory for the Lakeview Schools curriculum over the forces of ignorance: CNN reported on a pagan protest of the erection of a museum at Greece’s acropolis. According to CNN:

“Dressed in crisp white apparel, the pagans gathered before the east wing of the temple’s imposing Corinthian columns and prayed to Athena, the ancient Greek goddess of wisdom and patron of Athens, asking her to protect the Parthenon from further destruction.”

Any graduate of Lakeview High School would know the error committed: the “imposing” columns of the Parthenon are not of the Corinthian order, but rather less ostentatious Doric columns. Corinthian columns are normally associated with the hedonistic Roman Empire, rather than the Humanistic Greeks, who preferred the austere Doric order.

My public school sure helped me tilt that windmill…

* Aside from the overstated crux of the assassination of Arch-Duke Ferdinand, which I learned independently.

Normally, I like unhealthy cheeseburgers – when in Detroit, I have one of The Bronx Bar’s excellent swiss cheeseburgers once a week on average. With The Baconator, I found an exception. One of my coworkers, a vegetarian, was telling me about how her husband loves a sandwich called The Baconator, and how he would occasionally make late-night special trips to the particular fast-food restaurant that serves this abomination to order it. I was caught up in the name – it sounded funny, and I was hungry –  so therefore I was sold.

I ordered a Baconator, and washed it down with cheap coffee. It did not taste particularly good – certainly not good enough to justify the $4.00-plus price, but that was not what was terrible about the sandwich.

I returned to work, and it was like curdled cheese and bacon fat were congealing in my brain. I could not think, focusing on my work became a struggle as a general malaise set in. I was lethargic, and felt as if I had just taken months off my life. I probably had, considering the nutritional value of the thing.

According to wikipedia‘s Baconator page, The Baconator weighs 553 grams, and contains 51 grams of fat. It does not take a mathematician to realize that this sandwich is approximately 10% pure fat. It has 840 calories, and 1 gram of dietary fiber, for that matter.

In conclusion, I can only recommend that you, reader, not be sucked in – do not order The Baconator.

One of the unique opportunities of being an intern in a prosecutor’s office is the distinct possibility of handling a jury trial. I was to have my first jury trial this Monday, but it was unfortunately pushed back until mid July. I anxiously await the chance to put the materials I have prepared to the test.

Matters regarding the jury are now my concern every day. What will they believe? What won’t they? What can I say in front of the jury? What will get me a mistrial? Jury concerns have recently reached a new level of tedium. I am drafting a motion to exclude some evidence, and I was struck with the question of whether a jury is a “they” or an “it.” As in “the jury said they would not go to the beach,” or “the jury said it would not go to the beach.” Tense agreement and legal entities is a common grammar mistake regarding courts, i.e., a court is an “it,” not a “they,” which can be particularly confusing when appeals courts have multiple judges, and just seem, logically to be a “they,” not an “it.” An appeals court is an “it,” and after consulting with more than one individual in my office, we decided the same goes for juries.

I recently received an unexpected opportunity regarding juries – the opportunity to serve on one. An eligibility survey came in the mail yesterday. I see this as a double-edged sword. On one hand, assuming I am not almost immediately the subject of a peremptory challenge, I could see the inner workings of the “black box” that is a jury. On the other, I will loose precious time that could be spent at my internship, thinking about how to argue to a jury from a lawyer’s perspective. Obviously, I have to serve if called, but I am not sure at this point whether I want to serve or not. Irrespective, I would probably get struck immediately, if I were to get into the voir dire (where the petit jury is decided by the parties to a trial). I am a law student, work in a prosecutor’s office, and worked in a civil law firm. If I were trying a case and had to choose to strike me or not, I would strike me, for risk that I would sway the jury. We will see if this actually happens.

Last week I went to the Prosecuting Attorney’s Association of Michigan (PAAM) summer intern boot camp. This conference was intended to teach interns the basics of trial practice. The boot camp’s combination of lecture and trial exercises did successfully introduce me to trial in a way that was both entertaining and informative.

One insight a Wayne County (contains Detroit) prosecutor shared when instructing was that direct and cross-examination are exercises in “herding cats.” This metaphor stuck in my head both for its humor, and for the fact that it soon proved itself to be true.

Before becoming an intern at a prosecutor’s office, I imagined myself working in many capacities, but never as a cat wrangler. The PAAM exercises soon proved the metaphor correct. My witnesses made unexpected statements at inappropriate times, equivocated, shaded the truth, flat-out lied, and were generally difficult. At points, it felt like cross-examination resulted in making our cases worse, rather than impeaching the defendant’s credibility. And this was for good reason – we were questioning prosecutors with dozens of years of trial experience, acting out difficulty-prone fact patterns. The exercise taught us using some of the most difficult facts we could be exposed to this summer.

Though I am certainly not yet proficient at cat herding, I have certainly laid good groundwork. I cannot wait until I can try it in the courtroom.