【Episode 25 – Frivolous Litigation (2)】
"Could you come by my office briefly during Tuesday's lunch hour?
There is something I would like to discuss with you in advance regarding our Moot Court Competition preparations."
A summons had come from Professor Alastair Mitchell, who had agreed to serve as our team's coach for the Immigration Law Mock Trial Competition.
Since the official competition guidelines had not even been released yet, I was a little nervous about what he wanted to discuss.
"Michael couldn't come with me because he had something else to do."
"Oh, that's fine. From now on, unless I specifically ask you all to come together, it is fine for just one representative to come. The reason I called you today is that there is a proposal I would like to make to the team regarding oral argument preparations."
Fortunately, it was not the bad news that he would be unable to coach us due to scheduling conflicts.
"I read the brief you submitted during team selection. It was an excellent brief—a document written so well that it is hard to believe it was written by first-years. If it was not a fluke, I expect you will pass the preliminary round, which is decided by written submissions, without issue."
"Thank you."
"Now then, what I am curious about is how you plan to prepare for the main event—the oral argument stage."
The Moot Court Competition proceeds in two stages: the preliminary round, conducted through written argumentation, and the main round, conducted through oral argumentation.
When the host committee announces a hypothetical case (facts and issues) related to immigration law in mid-December, participating teams submit briefs containing their arguments by the end of January. That is the preliminary round.
The committee carefully reviews the submitted briefs for one week, then selects sixteen teams that wrote the most persuasive documents. Those sixteen selected teams then compete in the main round at the NYU mock courtroom on the weekend of the first week of February.
The main round, held over two days, proceeds through oral arguments before actual judges well-versed in immigration law. Because it is a tournament format, the winner is decided immediately after each argument; the losing team is eliminated, and the winning team advances to meet the winning team from another bracket in the next round.
That is why it is called a *competition*.
"Honestly, I had not thought that far ahead yet."
Unable to hesitate any longer at the professor's question, I answered.
"Hmm—you are first-years who have just entered law school, so I will let it slide this time. However, since you have asked me to be your coach, you will need to be far more proactive in making plans going forward."
"I will keep that in mind."
A tweed vest fastened so tightly the buttons looked ready to pop, and a checkered bow tie.
A red beard covering his entire jawline, and neatly combed curly hair slicked back with pomade.
It was an appearance that might have seemed comical in passing, but meeting him as a coach, there was nothing laughable about it.
"The flower of moot court is oral argument. Written argument is merely a cutoff line—the easiest way to filter out unqualified teams. I have no intention of coaching an unqualified team. As long as I am your coach, our goal is..."
"Victory."
"That's right. Victory. To win, you must prepare for oral argument. At Oxford, where I studied, all exams are oral. Not just law—unless it is a subject that absolutely must be written, most exams are conducted orally. If you cannot explain something in words, it is not your knowledge. A true lawyer must be able to persuade with words. Do you understand what I am saying?"
He was a formidable man who could make people nervous, and there could have been no better choice as a coach for an inexperienced freshman team.
"Then, what sort of preparations should we be making until next February, when the main round takes place?"
In truth, first-year law students do not have many opportunities to practice oral argument.
While all students experience mock trials through Lawyering class, and some professors may administer exams in an oral argument format at their discretion, those things mostly happen in the second semester—in the spring.
Even if we were lucky enough to have such an experience this semester, it would not be enough.
"That is why there is something I would like to propose."
"What kind of proposal?"
"I was wondering if you might take on a pro bono case."
"A pro bono case?"
"Yes. First, I will train intensively with you on oral argument throughout January, but in the meantime, experiencing more of what the profession of a lawyer truly entails would be very helpful. There are things you can only learn through real cases, not hypothetical ones. What do you say? Will you do it?"
*
After leaving Professor Mitchell's office, we headed to a hamburger place near campus.
At the professor's unexpected proposal, no one was quick to break the silence.
"By the way, Heon, are you going to be okay? You have your research assistant position too, plus moot court prep and pro bono on top of that."
Pro bono is short for the Latin phrase *pro bono publico*, meaning "for the public good," and refers to American lawyers providing free legal services to underprivileged groups.
The American Bar Association recommends that lawyers perform at least fifty hours of pro bono work annually, but to date, no state mandates pro bono work.
However, eight states including New York have established rules requiring that taking on a pro bono case be reported to the state bar association, and in particular, New York has a rule that law school graduates must complete fifty hours of pro bono work to obtain a New York state law license.
"I have to do it eventually anyway."
"But won't it be difficult?"
Most students complete their fifty-hour pro bono requirement during their third year.
And for good reason: it is difficult in the first year due to lack of experience, and in the second year, students are busy securing positions at the law firms they will join after graduation.
Therefore, most pro bono work is done during the relatively freer third year, and some even do it after graduation, before obtaining their law license.
Of course, it is different if your goal is to become a human rights lawyer or enter politics.
Those students actively seek out pro bono work from their first year.
"We still have to do it. The professor told us to. Did you see his expression earlier?"
"I saw. I saw. Kekekek."
The mood seemed to have gotten too heavy, so I did an impression of the professor, and Sein burst into laughter.
"If we had said no, he looked like he would say, 'I'm not coaching you! Get lost!'"
"Right. He totally would."
"Hyung, you're okay with this, right?"
"Me? I'm fine. If you hadn't suggested doing moot court, I was actually thinking of trying pro bono."
Usually, domestic lawyers or prosecutors who come on sabbatical leave study abroad with the mindset of taking a year off.
Even passionate people focus on getting their degree or building connections with local lawyers; they do not do pro bono work.
Donguk was different.
Because his goal was to work at a New York law firm, he intended to climb the ladder step by step like a real law student here.
"But, Heon, earlier when the professor told us to look into Pro Bono Placement, why did you ask if we could take on a case personally? Is there a case someone you know requested?"
At NYU, there is something called Pro Bono Placement, in which cases requesting free legal services are posted separately on the school's community job board.
They are mainly small-scale cases or cases posted by people who cannot afford a lawyer.
Furthermore, because law students are not yet lawyers (with a few exceptions), they cannot formally take on cases themselves, so the system is operated with a director who oversees student case assignments.
Therefore, a law student could only take on a case with the permission of the pro bono director or under the supervision of a professor or a practicing attorney.
That was why I had asked Professor Alastair Mitchell.
Because a case I wanted to take on had just come to mind.
"It is not a case from someone I know."
"Then?"
"It is a case for someone who runs a restaurant in Koreatown."
A case in which a lawyer at a large law firm burned his tongue while eating gukbap at a Koreatown restaurant.
It was a case that was scheduled to appear in the local Korean newspaper the following week.
"A Koreatown restaurant?"
And that was how we came to take on a case of frivolous litigation.
Frivolous Litigation (3)
In 1994, an interesting trial was held in a New Mexico state court.
An elderly woman over eighty had filed a lawsuit against McDonald's.
The outline of the case was simple.
"On February 27, 1992, a woman named Stella Liebeck ordered and received a 49-cent coffee from a McDonald's drive-thru in New Mexico.
At the time, the woman was in the passenger seat of a 1989 Ford Probe driven by her grandson; because the model had no cup holders, the grandson parked the car so his grandmother could add sugar and cream to her coffee.
When the car stopped, Stella Liebeck held the cup of coffee between her knees and opened the lid.
In the process, the cup tipped over, spilling the hot coffee onto her thighs, groin, and buttocks.
At the time of the accident, she was wearing cotton sweatpants and sustained third-degree burns. She was hospitalized for eight days, requiring skin grafts and treatment, followed by three weeks of outpatient care.
Because she was seventy-nine years old at the time of the accident, recovery was not easy."
She had not filed the lawsuit from the beginning. She had initially demanded approximately twenty thousand dollars from McDonald's to cover her medical expenses, but McDonald's refused and offered eight hundred dollars instead.
Thereupon, she hired Texas attorney Reed Morgan, and her attorney filed suit against McDonald's.
In fact, attorney Reed Morgan had also made several attempts to settle the case.
However, McDonald's maintained that they had merely served "hot" coffee hot and had no intention of taking responsibility for an accident caused by the consumer's carelessness.
As a result, the trial was held in a New Mexico state court in August 1994.
And when the ten-day trial concluded, all of America was in an uproar.
Because the jury's verdict in that case was shocking.
"McDonald's is to pay Stella Liebeck one hundred sixty thousand dollars in compensatory damages for medical expenses, and two million seven hundred thousand dollars in punitive damages."
A verdict awarding over three billion won in damages for a cup of hot coffee spilled due to one's own carelessness had been handed down.
...
Eighteen years later,
a similar accident occurred at a small Korean restaurant in New York.
"Hi, come on in. What would you like today?"
(Welcome. What can I get you?)
"Hello. We are NYU Law School students. Could we speak with the owner?"