Although I do not own a television, I am aware of certain customs and practices which television employs. One greatly successful endeavor is to broadcast certain portions of popular shows featuring the actors messing up their lines, falling down, breaking into hysterics when they are supposed to keep their cool, and the like. Everyone enjoys seeing someone who qualifies for the cover of People magazine screwing up.
These scenes, of course, do not make it into the actual show. With this in mind, I present some outtakes … snippets that never made it into an actual column, but which I kept around, in case I ran out of ideas, something that happens altogether too often, especially in court.
During a recent voir dire, I directly observed the Clever Hans phenomenon.
An attorney asked a prospective juror whether she would be able, if the Plaintiff failed to prove her case, to send her home with no money. The venireperson said no. This did not bode well for the defendants.
Later, another lawyer asked the same question. Now, the same venireperson answered yes. I looked at the questioning attorney. I am not a horse, but my personality has been likened to a particular portion of a horse's anatomy under other circumstances. Nevertheless, I was able to observe that the asking attorney's body language, facial expression and hairstyle all screamed that the venireperson should answer, "Yes!"
From time to time in context of my work, I am moved to consult the Diagnostic and Statistical Manual of Mental Disorders. This is a fascinating sourcebook. Perusal by those not suitably qualified could occupy many happy hours in self-diagnosis. Over the years, I have determined that I suffer from dissociative trance disorder induced by excessive use of internet legal research engines after midnight.
The DSM has undergone a number of revisions. It will shortly emerge in a fifth incarnation. With each successive version, new, more elaborate syndromes, conditions, and codes have been added, and previously existing ones modified, so as to refine the features, diagnostic criteria and associated problems which might be confused with or mistaken for other illnesses, or deleted altogether. One of these new editions barely made it out of the publishing house before it required an overhaul; the new model was simply called the DSM III-R.
Having encountered more than the usual complement of dysfunctional situations peculiar to the profession in the recent past, it occurred to me that our profession could use a diagnostic and statistical manual of its own. I propose to call it the DSM-L.
The scene: New England, 2012
The cast: Leonard, a lawyer.
The setting: An office file room, with cabinets, and a large, prominently displayed copier.
Leonard enters, looking worried, carrying a large sheaf of paper. He sets the paper down on the copier. The orchestra begins to play softly, in the background, in a minor key.
Leonard: (to himself) Only 45 minutes until the court closes — I have to get this brief in. (He grimaces, glancing at the wall clock.) 44 minutes. (He studies the keypad.)
Leonard: Okay, this is easy! I don't know why I never do this myself. (He pauses) Okay. It says to put the copies in face … up. Here we go!
Leonard stacks the sheaf of paper, and places it on the feeder. He studies the controls again. He licks his finger and presses a button. The copier begins taking the paper in, steadily. Suddenly, it stops. The orchestra swells ominously.
Leonard: Oh, God. I only have 40 minutes! What am I going to do?
We will return to our regularly scheduled program next week. •