1.关于律师的职业道德 众所周知,事实真相与法律事实是有严格的区别的。真实发生过的事情,即使在人的记忆中都有可能被歪曲,更何况通过逻辑推理,证据证明而得来的法律事实。任何方式的重演都将是失真的,而法庭上兵戈相见的目的并非拍一部跌宕起伏的纪录片。双方各自带着损伤来到法庭,希望通过正当程序解决问题的时候,一个公正的法庭能做到的就是尽可能了解更多的信息,以期还给受到相对不公正待遇的一方正义。这是法律,甚至法庭,之神圣的所在。而非律师存在的意义。律师并非通过自己悲天悯人的情怀来工作。就像电影中所说得那样,“如果一个律师具备同情心,就像一个医生晕血一样可怕”,没有任何一个病人希望得知自己的医生晕血,但是却有很多的当事人至少希望自己的律师同情,怜悯甚至伸出援助之手。而这恰恰是律师职业道德中最具挑战的事情,因为同情往往会“clouds the eyes”。律师靠的是专业,是理智,是对当事人负责的态度。而这种敬业精神,在某些情况下可能会和作为一个人所具有的良心是背道而驰的。往往这才是考验一个律师是否具有职业道德的关键时刻。没有必要把社会道德的沦丧放在对于一种职业的批判上,毕竟,无论原告还是被告,都有着法律所规定的权利,律师要做的并非去歪曲公理,而是最大限度的去为自己的当事人争取其依法享有的权利。这也是律师这个行业一直吸引我的一个重大原因,理智与情感这种二选一从来都要在最严酷的考问下才能找到答案。
Civil Action is, I think, one of the best movies about how American law really works. The movie is based on a book (the same name)—and the book is based on a true story. The movie tells the story of pollution in a small town in Massachusetts. In this town young children get sick and die of cancer. The mothers and fathers think that maybe they are dying because a factory’s polluting the water in the town. A young lawyer (played by the actor John Travolta) becomes the lawyer for the families. The lawyer brings a lawsuit to ask a U.S. court to order that companies that were responsible for the pollution stop the pollution and pay the families damages. The kind of lawsuit is called a “toxic tort” lawsuit—because the plaintiffs say that they were harmed (tort) by poisonous chemicals (you du de). There are many interesting and important things that we can learn about and discuss from the movie. These things include: (1) Career Model: “Plaintiffs” John Travolta is a “plaintiffs lawyer.” He represents people who do not have the money to pay for lawyers. He spends his own (and his small law firm’s) money to do the work. In exchange he hopes to get paid well if the lawsuit is won.
In watching the movie, think about: (1) why is John Travolta being a plaintiffs lawyer (to become rich or famous, to help people, both?) (2) what strategy do the lawyers for the defendant companies use to oppose John Travolta? (3) what are the moral issues John Travolta has when the lawsuit becomes very expensive and John Travolta’s law firm has little money left?
(2) Tool: Discovery.
As we have discussed, one of the most important and special features in American law is “discovery.” The American rules of civil procedure (Federal and state) provide that before the parties go to trial, they should be able to get all the information they need about the case. In many cases, including probably the most complicated civil cases , the parties do not go to trial—they settle the case after they take discovery and find out how strong (or weak) their case is, and how strong (or weak) the case for the other side is.
Basically, in discovery, a party can get information from the other side in three ways:
a) Deposition. In a deposition a party gets to ask questions of people. The people can be the defendant (including officials of a company or of the government, if the defendant is company or government) or a “third party.” The testimony is like court testimony—the witness has to tell the truth, and a record is kept. But there is no judge or jury present.
Depositions can be very very useful and powerful. The court can order that even the most important people (government or companies) have to make themselves available for deposition. (As you may recall, when he was being sued by a woman, President Bill Clinton had to testify at a deposition). In depositions about environmental pollution by a company, a plaintiff’s lawyer can find out things that the government (or the newspapers or public) do not know.
b) Documents. In addition to asking questions of witnesses, parties conduct “documentary” discovery. They can ask the other side (or a third party, though court approval may be needed)) for documents that may be related to the case. (Today, of course, documents include emails and other “e-documents.”)
c) “Interrogatories.” Finally, in discovery parties can ask each other to answer—in writing-written questions.
In the movie we will see how depositions work. You will see how John Travolta tries to get information from the company witnesses, and how the company lawyers try to depose the families of the children who died. This is an example of the way it really is.
(3) Tool: Expert witnesses. The families live near polluted water. The children die. The families and John Travolta have a simple argument-- the companies polluted the water, the children drank the water, the children died. The companies have lots of money for lawyers and experts. They argue that it is much more complicated. The companies did not pollute the water. If they polluted the water, the children did not get sick and die from the water –the children had many other reasons to get sick.
(4) Strategy. I will not tell you how the movie ends, but the movie—again based on a true story—shows that in real life sometimes things work out differently than what lawyers plan for.
(5) Settlement and settlement strategy. As the Movie explains, most cases do not go trial—but are settled before the judge or jury has to decide. In many cases this is because in discovery the parties can learn about each other’s case, and see how strong or weak the cases are. A good part of the movie is about the way in which both sides go about trying to settle the case. Watch carefully
(6) Lawyer personalities. A great part of the movie is watching the differences between the key lawyers-“Jan,” “Mr. Cheeseman” and Mr. Facher. In America lawyers have many different styles. Watch these different styles-see what you like and what you don’t. Is what you like most effective-or maybe what you don’t like?
(7) Moral Questions The movie presents very good examples of moral questions. They include: ~~What kind of methods can or should lawyers who oppose “public interest” lawyers use? ~~What should a “public interest” lawyer do when his/her interest in survival (having enough money) comes in conflict with client interest? ~~What should public interest lawyers and clients do when the defendant offers to settle the case—and the settlement may help lawyer or client, but maybe not the larger public interest.
老师让我们看的时候prepare answers for three questions: 1. Would you have taken the case? 2. Would you have settled? When? How would you have addressed this issue with your clients? 3. Would you want John Travolta's character or Robert Duval's character to be your lawyer? Why?
My answers would be: 1. Yes. Because the case is definitely profitable, given the fact that two large companies: Beatrice Food and W. R. Grace are involved. 2. Yes. Out of the court room, waiting for the jury's decision. I would say that I have tried my best, but I can no longer afford the huge expenses of investigation. This amount of money is a result of cost-and-benefit analysis. Though monetary value can never compensate and redeem your loss, we have tried our best to match up. 3. Robert Duval. I don't know how much a degree says, but in this movie, a lawyer from and teaches at Harvard is certainly more chill. He knows the rules, and manipulates them sometimes. He adjusts well and 扮猪吃老虎 in the legal world. 食物链中的上游. His personality and versatility speaks for everything. I don't like a lawyer who is too easy to read, and who is too eager for cases. His ignorant pride, so to speak. 身段不够柔软。