Mar 252008

I’ve been a pretty poor blogger this month, first being preoccupied with dealing with my earlier writing project and then with planning last week’s trip to London. The reasons for my trip I’ll divulge as soon as I have a moment to catch my breath, but long-time readers may be impressed (or is it shocked?) to discover it had absolutely nothing to do with Huey Lewis… (Or even Stephen Fry, for that matter.)

As per my usual cheapskate custom, I stayed in a hostel, the only nominally affordable lodging solution in London. The enormous downside to this arrangement is that for the second consecutive time, I found myself sharing a room containing someone who snores. All hopes of overcoming jetlag were dashed on the first night, as I didn’t just find myself lodged with someone who snores but someone who seemed to snore through every. single. sleep stage.

On the upside, in shared rooms you do get occasion to meet people. Including, on this occasion, a non-snoring French paralegal who’s studying to become an attorney.

It was really interesting speaking with her, comparing notes about legal practice in our respective countries. First off, it’s interesting to discover that in France, like in various US states, a legitimate path to practice is through study while working at a law firm. I’m not sure it’s an any more conventional route there than it is here, but I think it serves the profession well when not everyone is forced to march lockstep through the same becoming a lawyer drudgery. In France, like in America, she will eventually be aided by the fact that she won’t be as financially vulnerable by the time she finally receives her license as those who became a lawyer through schooling exclusively, which then hopefully will give her more flexibility to pursue public interest work. Additionally, by having already worked in the law she will both understand the practice and what she wants out of her own than someone suddenly let loose to it right after graduation.

We talked on, having a laugh over my inability to pronounce “synallagmatique,” although I at least get points being an American lawyer who’s familiar with the word, since, unlike in France and Germany, it’s not a term we use to describe bilateral contracts.

But what was most interesting was our comparison of the relation between tort and penal law in our respective countries. To use the OJ Simpson trial as an example, as we did, there are some stark differences between how his trials were handled in the US versus how they would have been in France.

In France there is the idea of one crime, one consequence. The culprit can face either a civil penalty, or a criminal one, but not both. On the other hand, a private party — the victim — can pursue either a criminal or civil remedy. There is a role that the government will play in pursuing criminal charges, but the victim party may, depending on the circumstances, choose to join the prosecution in pursuing the penal remedy or go his own way in pursuing a civil one. However, if the victim chooses the latter option and the government fails to prove its case, then in order for the victim to obtain a civil remedy, it will need to come up with additional evidence, as the evidence the government used in its trial was clearly insufficient.

This situation contrasts with American law, where private parties cannot pursue penal remedies, and where the outcome of a criminal trial only bears indirectly on a subsequent civil one. For example, note that OJ Simpson was acquitted of criminal guilt, but still found liable for wrongful death related to the same event. This difference is due to variations in the standards of proof for criminal and civil trials (e.g., “beyond a reasonable doubt” v. “preponderance of the evidence”), as well as the differences between the way criminal laws are articulated and the way civil ones are. In other words, in order to prove murder the prosecution will need to prove several specific elements (e.g., (1) a killing, (2) of a person, (2) with malice, etc.) but these may not necessarily be the same elements necessary to prove in a wrongful death suit.

The above is what I remember taking away from our conversation. It is of course limited by our respective lack of fluency in each others’ language, but I trust that we did hit upon an interesting issue of comparison, and I’m glad to have made her acquaintance.

The same sadly cannot be said for yet another roommate, however. She’s the first German I’ve met, despite all my time spent there, who so perfectly embodied the stereotype of rigid, Germanic authoritarianism. While I suspect the language barrier complicated things, I have the distinct sense that even if my German were perfect we still would still have had problems as I was not willing to be ordered around by her.

At one point she told me that I’d be a terrible lawyer seeing how I was so unwilling to follow the rules. (Which makes me think she really doesn’t understand lawyers…) The problem, however, was that the rules that she wanted me to follow were the rules articulated only in her head, rules which failed to meet any sort of reasonableness standard. For instance, why would it have been acceptable hostel behavior for me to have read a book in bed but not a laptop? A mouseclick makes no more noise than a turning page, the screen casts no more light than the small reading lamp each bed was outfitted with. Meanwhile, although it was late and I was looking to soon wind down and pack it in myself, I certainly wasn’t amenable to her ordering me to stop as soon as she decreed it (“It is night! You sleep now!”), particularly given how earlier in the morning she’d woken me up by blowdrying her hair three feet from my bed (“It is morning! It is not time for more sleeping!”). Hostels can be nice places to meet people from all over the world, but sadly her unwillingness to reach any sort of mutually respectful compromise made ours a fairly hostile hostel… Which makes me feel bad, as I’d like to think that with a little tolerance and understanding all conflicts can be resolved. But even my German dispute resolution class was of no use to me in this situation. You just can’t negotiate reasonable solutions with someone bent on ordering you around.

Anyway, I’m back in the US now, getting plugged back into my regular American legal life. I did, of course, come away with a few more souvenirs, since once again I was drawn to the fourth floor of the Piccadilly Circus Waterstone’s by its Sirens of law books commanding me to own them… Added to my collection now are a primer on English land law, another on English constitutional law to help make the previous one I got make more sense, and another book translating English law for English lay people, which seemed like a useful tool for anyone who wanted to know more about it. Including geeky American weirdos like me…

 Posted by at 12:28 pm

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