Tongue in Cheek: Diets and Establishing the Burden of Proof

Abstract: You know you're too deep into law school when you begin thinking about your diet in legalistic terms.

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When you undertake a diet, it is very likely that a significant other (including--but not limited to--a close friend, wife, or domestic partner) (hereinafter “S.O.”) will be involved in your efforts. Just as in a judicial setting, it is imperative to know the burden of proof or persuasion in a given matter, it is equally important to know what your burden of proof shall be in order to show to the S.O. or others, as trier(s) of fact, that you are truly in the process of accomplishing your goals. Hence, when you approach the S.O. on this issue, you may wish to consider the following guidelines as to each level of the evidentiary hierarchy:

• Probable Cause: You’ve been eating cheeseburgers and pizza all day, and chasing them down with regular Cokes. But someone managed to catch you one time in the middle of the night, sipping a SlimFast shake while watching a Jerry Springer episode. There is probable cause to support the contention that a diet has occurred and that you’re the one committing it.

• Preponderance of the Evidence: You concede under cross-examination that in the recent past, you’ve ingested a cup cake or two. And a bag of popcorn. And a double quarter-pounder (super-sized). You’ve even been caught nibbling off of the double-layered chocolate cake your S.O. was reserving for her nephews. (Well, all right, you’ve made the cake into the similitude of “PacMan,” but the evidence was circumstantial.) Still, if you’ve been drinking Diet Coke all day, have at least one good low-calorie meal, and follow it up with a few carrot sticks, you may be able to convince the fact-finder that more likely than not, you have been dieting.

• Clear and Convincing: Many of your meals are low-calorie. Your weight has been trending lower, although there are some up-ticks here and there. One time you’re caught inside of a McDonald’s, and when asked what you are doing there, you immediately corrected your order and asked for a Caesar salad. Your opponent can raise doubts over whether you are truly dieting; even so, the odds are largely in your favor.

• Beyond a Reasonable Doubt: You’re close to meeting your desired weight. Occasionally you’ll still have a french fry or two from your toddler’s Happy Meal. Your opponent may try to put forward a theory that you still eat mixed nuts in the middle of the night and fantasize about cheesecake dripping with wild cherry sauce, but you can respond that this is preposterous…and besides, you’re allergic to nuts. Counsel would be able to tell the jury with a straight face that you even look at the nutrition labels on bottled water to determine whether you are in keeping with your daily caloric intake. Under this burden, it would take a reasonable jury no more than a few hours to agree with you.

• Absolute Burden: You walk into the courtroom below the minimum weight recommended by the Surgeon General and scare the wits out of most of the jury simply by sitting at counsel’s table. At least three expert witnesses (all of whom are doctors who know the local standard of care for prescribing a diet regimen) all testify that you need to start increasing your calories immediately. One lay-witness testifies that you had already forgotten what a chocolate torte was, and when asked, you told him it was the conversion of cocoa plants in Brazil without the owner’s permission. Your opponent is too stunned to object to the hearsay and waives the point. Even the court takes judicial notice of your condition and offers you a ham sandwich (taxing it as costs against the other side). You’ve met the most stringent of burdens as to both production and persuasion.

With the above in mind, the following is a rough outline of the various burdens you will encounter when dealing with various individuals:

• Co-workers, distant relatives: You can generally get away with a probable cause standard, but the nosier of your associates may rise to the preponderance level, so some caution would be in order.

• Closer relatives, but not inside your immediate family (i.e., nephews, grandparents): You will be working inside a range that will fall largely under a preponderance standard. A few will rise to the clear and convincing level (for example, your uncle Ralph, who lifts weights in his spare time and looks to Jack LaLane as his childhood hero). Others will not care at all; your burden is diminished as to these individuals.

• Your S.O. and immediate family: You should presume a reasonable doubt standard unless the evidence begins to preponderate otherwise. For example, if your spouse one day makes you an pumpkin pie and adds a liberal amount of whipped cream, then henceforth you may be able to operate under a clear and convincing standard.

• Life insurance carriers, your personal physician, yourself: Beyond a reasonable doubt. A few insurance companies may even seek to impose an absolute burden. And of course, you have to live with yourself 24/7/365/etc., and there’s no getting away from that. (Not unless one has an out-of-body experience, but that’s well beyond the scope of this discussion, and will have to be saved for a later time.)

• Door-to-door salesmen, outright strangers, opposing counsel (as to other matters), the photographer at Wal-Mart: No burden whatsoever.

Appellate procedure. If you are assessed under the wrong standard, you could try to argue there was an abuse of discretion and that (s)he should try to re-examine your situation de novo without a presumption of correctness, but then, that person will look at you as if you were from another planet and wonder what in creation you are talking about. So perhaps it would be better to leave the matter alone and simply diet with increased zeal (so long as your efforts remain within reasonable or prescribed limits).

Conclusion. Factoring in the burden of proof when executing a diet and exercise plan may not cause you to lose additional pounds. But it may reduce the stress and friction you may receive while en route to your destination, which in turn will allow you to focus your attention towards weightier matters. Such as pondering whether a theft of $500 is a misdemeanor or a felony, or whether you should file a Rule 11 motion against opposing counsel because she gave you a very strange look during a summary judgment hearing.

Special Disclaimer. I did mention this was meant to be humor, right...?

Considerations in Selecting a Law School

NOTE: The following item was originally posted at lawschooldiscussion.org, but I felt it was worth retaining here.

As many can attest, there is not a "one size fits all" approach that can be taken in choosing a law school. For most students, an American Bar Association ("ABA")-certified school is arguably the preferred route. Nonetheless, I would submit there are limited instances where the selection of a non-ABA (but state-certified) law school would be appropriate. The key is to make the decision--whatever it is--as objectively as possible and in full understanding of the consequences.Factors weighing into the decision would include (but is not limited to) the following--

• Whether someone is entering law school directly from an undergraduate or bachelor's degree, or if there has been an intervening number of years of work experience;
• Whether that person can afford to proceed to law school without outside employment (even after considering the availability of student loans and scholarships);
• The availability of law schools within a reasonable driving distance of home and employment;
• Whether the student would be willing to relocate solely for the purposes of entering into a law school;
• Whether the law school's schedule will be compatible with outside employment; or in the alternative, whether a night school is available;
• Whether the school is ABA accredited; or in the alternative, whether one would be able to accept the implications of going to a school that only has state accreditation (including certain jurisdictional limitations on where one can practice);
• Family considerations (i.e., spouse, dependants, significant others, etc.);
• The quality of the school(s) being considered, independent of the certification issue, including the track record of students that have have previously graduated from the school;
• The student's prior accomplishments and legal aptitude (i.e., GPA and LSAT), including whether the student will be able to receive one or more scholarships at the desired school;
• The cost of tuition for the schools being considered (or alternatively, the estimated amount of debt one will face after completion of studies); and,
• One's reasons for going to law school in the first place, and to what extent these reasons are career-oriented.

Arguably, perhaps the last factor may be among the most important. If one's motive is specifically to join the top 5% of law firms anywhere in the country, or to work in a high profile position in federal or state government, the school one goes to becomes highly relevant. At the other extreme, there are those who study the law purely from the standpoint of personal interest or to supplement knowledge in one's current career. In such instances, the school becomes somewhat less relevant. Between these extremes are combinations of personal interest and career in various amounts, and these have to be balanced out carefully against the remaining factors as outlined above. --Sandy

Hello and Welcome

On this date, Witzlaw's Commentary is open for business. If you are just joining us, you haven't missed very much. :-)

What I think I would want to do at some point is to publish a statement of some guiding principles, which in turn will hopefully place my subsequent remarks into context. But for right now, let me say at the very outset the following:

• I will probably be more conservative than liberal, but beyond that, I'm not sure I would fit into a specific portion of the political spectrum. I'll consider myself independent for the time being, but this may be subject to change.
  
• I will not seek to offend, but there will undoubtedly be some topics and some viewpoints that I will feel very passionate about. As to such items, I will seek to approach the subject matter tactfully and diplomatically, but at the same time zealously and perhaps even forcefully. That's not an easy balance, but it will be what I shall strive for. Obviously it will not be possible to be in agreement with everyone...such is life, especially in the world of everyday discourse. But even if one is in disagreement with a particular viewpoint, I believe that it is possible to handle differences in a way that respect is maintained and even cultivated.
  
• Of course, all of the above sounds very idealistic. If it is so, it is because I am an idealist. I would like to talk more about how things ought to be, rather than how things actually are.
  
• Finally, I will also note that my religious beliefs and my testimony are very important to me. It is the key building block on my life and is the foundation behind my growing family. Which is not to say that I intend to impose my religious beliefs upon others...in fact, I feel very strongly against such behavior. In a world of extremely divergent viewpoints, especially in matters of religion, it is important to recognize that our spiritual journey is a deeply personal one. In that context, the two most important things we can do are 1) Follow the spiritual compass that God has given to each of us, and 2) Stand firmly behind the things you know to be true, no matter what.

And that will do it for my first point. Stay tuned for some initial remarks about law school. And thank you for your time in looking through Witzlaw. I think it's going to be a very interesting journey indeed.

Cordially,
Sander J. "Sandy" Rabinowitz