Et Lege Lata: The Foreign, Unknown Language of the Law
My first day of law school began with contracts law. In the days leading up to the first day of class, we were assigned readings, mostly consisting of cases. I’m pretty sure most of us going into that first day of contracts law read the cases but understood less than 25% of what we read, or at least that’s how I felt. The case captions, citations, facts, procedural history, statement of law, analysis, and conclusion were pretty much a foreign language to me. Even after my father—who was a law professor, lawyer, and former justice of our nation’s supreme court—explained it to me, I still struggled to understand a lot of it.
The thing about law school is there is no introduction to law, or law 101. A first year law student is given a schedule consisting of the typical first year classes: contracts, torts, constitutional law, civil procedure, and legal writing. Professors assign students readings before each lecture. When students come to class, the professor will cold call on a student and drill the person on the specifics of the case. The student is put on the spot and asked questions like, “What happened in this case?” and “How would the court rule if this happened?” Professors will twist the facts of cases, throw out hypotheticals, and force students to explain the reasoning of the judge’s opinion. This law school teaching method, called the Socratic Method, is how professors teach their students how to think like lawyers. For most law students, it is cruel, inhumane, nerve-wracking, and sometimes a humiliating experience. For professors, it’s fun and enjoyable to watch nerdy people squirm and struggle.
In fact, I always tell prospective law students that law school is best summed up by Professor Kingsfield in the 1973 movie titled The Paper Chase, a movie that chronicles a young man’s journey through Harvard Law School. Like my first day of law school, the main character’s day began with contracts law. His professor was Charles Kingsfield, a no-nonsense, stoic older gentleman who stays true to the Socratic teaching method. A memorable scene in that movie is when Professor Kingsfield says to his students at the beginning of the semester: “You teach yourselves the law, but I train your minds. You come in here with a skull full of mush, and you leave thinking like a lawyer.”
Professor Kingsfield is correct in how law school works. You don’t go to law school to learn the law. Anybody can pick up a book of statutes/codes/ordinances and read what the law is. Even grade school kids know about the U.S. Constitution and that they have rights under it like the freedom of speech and right to religion. It does not take a lawyer for you to know that punching someone in the face is a crime under the law, assuming there are no issues of insanity. Along those same lines, we know people can argue insanity as a defense to a crime. Knowing the law is easy, or should be, but knowing how it applies and how to interpret it is quite another thing. Law school teaches you how to do that—to think like a lawyer.
I practiced law for a number of years in various jurisdictions, mostly tribal. I’ve given a number of lectures to law students on federal Indian law, and I’ve taught judges and lawyers about the importance of common law in tribal courts. My most recent work has been writing a doctoral dissertation and trying to figure out how Native Nations can do things differently, economically and politically, to help alleviate some of the problems on reservations.
In my experience working as a lawyer in tribal jurisdictions, I’ve come to see that a big problem is in the laws of the tribe and methods of jurisprudence. I’ve been in tribal courts where the criminal proceedings have become so routine and scripted that it’s like taking a trip to the DMV. The prosecutors are in the room with defense counsel and the defendant. Judges arrive shortly after. Usually everyone in the room knows each other like the judge, lawyers, bailiffs, and court reporter. Ironically, the only odd person out is almost always the defendant. When the proceedings start, the judge reads the charges, rights of the defendant, and asks if the defendant understands. The defendant will almost always say yes, especially if their lawyer is with them. The judge and lawyers then engage in conversations ranging from probable cause to bail to release conditions. All of those things are pretty much a foreign language to the defendant.
Witnessing cases, both criminal and civil, play out in a routine manner time and time again has made me wonder why courts allow that to happen. The parties to a case, whose liberty and rights are at stake, are usually the only ones in the courtroom who do not understand what is going on. For instance, I prosecuted a case awhile back in tribal court where the defendant was an elder in the community who spoke the Native language fluently. When the court proceeding started, the judge engaged in no informal conversation with anyone, made almost no eye contact with people in the room, and read off a script. During the judge’s scripted reading, the defendant looked around the room and at the judge a couple times. When he was asked by the judge, “Do you understand your rights as I have read them to you?” the defendant looked at me and then back at the judge. After a few moments of silence, he answered yes and the proceeding continued, even though it was clear that the defendant did not understand the proceedings, charges, or what was being said. He even indicated that his English was limited.
At that point, I requested that the court appoint the defendant a lawyer, stating that the defendant was an elder, and in every Native Nation, elders are afforded a great amount of respect. Not only that, but as a prosecutor, I took an oath to protect the nature of the proceedings and not take unfair advantage of defendants. Nonetheless, the judge declined my request, saying that the tribe’s criminal code was clear that if a defendant did not meet the income requirements for indigency (i.e. the defendant made too much money to qualify for a public defender), the court is unable to appoint the defendant a lawyer. The judge said his hands were tied. Not only was the judge’s statement completely untrue, but it also illustrates a major problem in tribal courts: tribal courts, in their operation and structure, have become foreign to the very people they serve.
When people do not understand the courts or laws being applied, they lose respect for the rule of law and institutions of justice. This is not only an occurrence in tribal courts, but courts across the country. Ask anyone out there (which I have done) what