Last Saturday, I took part of my family to Wiseguys on 25th Street to see Shawn Paulsen’s hypnotist/comedy show. My daughter was one of the volunteers, and soon she was quite hypnotized.
Part of the show involves Shawn convincing the volunteers they are on the roof of a 100-story building, rather than a 10-inch-high stage. Then he jumps off. Then he waits. Everyone on stage freaks out and the audience laughs and Shawn waits. Then he jumps back on stage. Everyone on stage freaks out again.
My daughter suddenly became distraught and aggravated. Her logical mind was telling her that someone doesn’t jump off a 100-story building and then jump back up. She said, “Wait, that isn’t logical. You would fall at 9.8 meters per second, increasing exponentially.” Unsaid was that the speed of the descent would have resulted in a resounding splat. Yet, there Shawn stood, unscathed and unharmed.
Maybe it is self-flattery, but I was glad that, even in her hypnotized state, my daughter was displaying signs of being logical, like some genetic lawyer gene passed down.
In order to get into law school, you have to take the LSAT, which is primarily a test of your logic. Here is one sample question:
Buses 1, 2 and 3 make one trip each day, and they are the only ones that riders A, B, C, D, E, F and G take to work. Neither E nor G takes bus 1 on a day when B does. G does not take bus 2 on a day when D does. When A and F take the same bus, it is always bus 3. C always takes bus 3. Traveling together to work, B, C and G could take which of the same buses on a given day?
A) 1 only; B) 2 only; C) 3 only; D) 2 and 3 only; E) 1, 2 and 3
This is one of the easy questions. (The answer is C. Because rider C can only take bus 3, riders B and G have to be on bus 3 to ride with rider C — simple logic.)
So admission to law school is based in large part on an aptitude at logic problems. In a way, it makes sense because the practice of law is ostensibly about interpreting statutes and applying them to factual scenarios.
Couple this with the appellate court’s standard of review of statutory language — plain meaning — and you have the recipe for the downfall of the rookie lawyer.
The language may be plain and unequivocal, but somehow “may” turns into “shall,” or worse, “shall” turns into “may,” which is a big deal when you are trying to predict what a judge is going to rule. The language and the legal practice do not always match up.
Even 20-plus years into the practice of law, I have conversations with the other attorney in my office over the supposed plain meaning of some statutory language. Just this week, we were trying to decide what was meant by “any act” and whether continuing a foreclosure sale was an “act” according to the statute.
No LSAT problem prepares you for that question. And logic isn’t much help either. The only thing that helps is experience.
Last week in my column, I wrote that, because of the Fifth Amendment, no one could ask a question of a defendant in a criminal trial if that defendant didn’t testify.
I received an email from a reader telling me I was inaccurate, that the Fifth Amendment doesn’t prevent questions from being asked, but rather just prevents a defendant from being “compelled in any criminal case to be a witness against himself,” meaning the defendant could be asked questions but doesn’t have to answer.
Technically, that’s right, according to the plain meaning of the constitutional language. Technically, by the plain meaning, we could also compel women to testify against themselves because there is only the male pronoun in the Fifth Amendment.
Yet, practically, it applies to both genders, and if you are at a trial in front of a jury, you can’t force the defendant onto the stand just to get that person to say that he or she won’t answer.
Unfortunately, most armchair constitutional law falls into the technically correct, practically wrong category, i.e., Utah Legislature and the Second Amendment.
The law may rely on logic and plain meaning, but in the end, reality and the judge’s ruling is more important because that decides where the guns get pointed.
The law isn’t a hypnotist show with illusion, but rather a human system designed to create predictable results — most of the time.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or firstname.lastname@example.org.