Thursday, June 09, 2005

Applying the Law to the Facts of Russell Crowe's Phone-Throwing

Bar Exams consist mostly of "issue spotting" essay questions. Certain facts are described, and you need to figure out which rules of law may apply to those facts, what possible outcomes the applicable rules lead to, and what likely priority will be given to multiple rules that all apply and might appear to lead to conflicting outcomes.

You can think of law as the place where two different universes come together to communicate. One is the world of phenomena, that messy place we all live in, where human beings engage in every possible form of abuse of one another, and each of us recalls the past, if at all, in radically incompatible ways. It is empty of fixed reference -- it is in fact nothing but a mad flux of appearances continually manifesting and vanishing. But that is reality.

The other universe is the world of law, a world of formal rules that are ideally all-inclusive and self-consistent. A world that offers the stability, predictability, and certainty the world of phenomena lacks. But a universe that cannot exist outside of our imaginations.

Reality and imagination cannot communicate directly with one another. Each must undergo a kind of tempering process in order to be understood in terms of the other.

Judges allow certain allusions to phenomena to become part of a record. These allusions are known as evidence. From this evidence Judges infer a collection of relevant facts. Relevant facts are highly formalized characterizations of phenomena that begin to be acceptible to the imagination.

Meanwhile, the rules are each associated with small collections of facts. The association of a certain localized pattern of facts with a certain rule is known as a "holding" -- perhaps because the rule holds the even more imaginary fact-pattern together.

So now we have rules linked to fact-patterns, on the one hand, and collections of relevant facts, on the other. If the judges have done their job elegantly, today's relevant facts closely match yesterday's patterns impling certain rules -- and it is easy to apply the same rules to the new facts. This results in a new "holding," and the process repeats itself across the generations.

This process is called "applying the law to the facts." Skill at it is tested by the Bar exam, because it is in truth the very essence of being a lawyer.

For example, my morning paper repoted that Russell Crowe was arrested last night at 4:12 a.m. in the lobby of the Mercer Hotel in Soho, and charged with assault. According to the newspaper, he had been attempting to reach his wife in Australia, but after a number of attempts still could not get the telephone in his $3,000 per night suite to work. The night clerk from whom Mr. Crowe requested assistance proved unhelpful. Having experienced the smug, smirking, too-cool-for-thou staff at the Mercer Hotel myself, not to mention the incomperensible long-distance dialing instructions at many hotels around the world, I can well imagine how infuriated Mr. Crowe might have been.

Perhaps not too wisely, Mr. Crowe proceeded to the front lobby to continue his dialogue with the night clerk, carrying with him for demonstration purposes the malfunctioning telephone. While attempting to communicate his view of the matter, Mr. Crowe threw the offending telephone, hitting the clerk in the face.

Anyone studying for the Bar exam would instantly apply to the newspaper account of the facts the rules recounting the necessary elements of the intentional torts of "battery" and "assault." Battery requires an intentional "harmful or unpermitted touching" of "the person." Assault requires putting someone "In apprehension" of an "immediate battery."

What did Mr. Crowe's lawyer have to say about this incident? Three simple declaratives:

"Mr. Crowe threw the telephone at the wall";
"Mr. Crowe never intended to assault anyone"; and
"Mr. Crowe never touched anyone. "

And so we see the elements of Mr. Crowe's legal defense already fully-formed: First, there is no battery, because there was no touching of the night clerk. This defense will almosty certainly fail, because touching someone with a weapon is still considered "touching" in almost all common-law jurisdictions. But perhaps more craftily, Mr. Crowe's lawyer is attempting to establish that Mr. Crowe intended to throw the telephone "at the wall": in other words, he lacked the necessary intent ahead of time to touch the night clerk in an unpermitted manner. Because he did not intend, when he threw the telephone, to hit the night clerk, he did not commit an assault, even if he did commit the battery -- because he had no intent to put the night clerk "in apprehension" of the battery that was about to occur.

About which I have only one thing more to say: Movie Star Suite at the Mercer Hotel: $3,000 per night. Excellent criminal defense lawyer kept on 24-hour retainer by Cinderella Man's distributor: $750 per hour. Throwing a telephone at a smarmy Mercer Hotel staffer: Priceless. For everything else, there's Mastercard.

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