Prospective Law Clerk, Test Your Mettle (or Your Legal Acumen or ... Whatever)

Peter Plaintiff brings a civil action for damages against David Defendant in a court of the State of Blackacre. The complaint avers that Defendant was Plaintiff’s landlord and that Defendant unlawfully evicted Plaintiff from the apartment that Plaintiff had leased from Defendant. In his answer Defendant denies that he evicted Plaintiff. Defendant avers, in the alternative, that he had good cause to evict Plaintiff and terminate the apartment lease.

This civil action – Peter Plaintiff versus David Defendant – proceeds to trial. The presiding judge is Judge Bolix Wisdom. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

In her opening statement Plaintiff’s counsel asserts that the evidence at the trial will show that a bomb destroyed the bathroom in Plaintiff’s apartment six months before the expiration of Plaintiff’s lease and that Plaintiff, not having a bathroom, decided to move out of the apartment. Plaintiff’s counsel further states that the evidence at the trial will show that Defendant arranged for the bomb explosion that destroyed the bathroom in the apartment and that Defendant did this vile deed because he wanted to be rid of Plaintiff because Defendant had found a prospective tenant who was willing to pay vastly more rent for the apartment than Plaintiff was obligated to pay.

Defendant’s counsel tells a very different story in his opening statement. Although he agrees that a bomb destroyed the bathroom in the leased apartment, Defendant’s counsel states that the evidence at the trial will show that the bomb explosion in the apartment was caused, not by Defendant, but by Plaintiff. Defendant’s counsel adds that the evidence will show that Plaintiff built the bomb that destroyed the bathroom in the apartment.

Peter Plaintiff is the first witness. On direct examination he gives testimony that tends to support his claim that David Defendant arranged for the bomb explosion in the apartment. At the conclusion of the direct examination of Plaintiff , Defendant’s counsel asks for a bench conference and then states:

Your Honor, we believe Plaintiff was and is a member of the Sao Paolo Branch for Political and Religious Liberation, or – as it is commonly known – SPBPRL. We believe that SPBPRL was and is a neo-Maoist political and military movement, a movement whose founding was inspired, oddly enough, by South America’s Catholic Liberation Theology. SPBPRL was and is dedicated to the elimination of capitalism and the destruction of all property. We believe that a chapter of SPBPRL – a chapter consisting of Peter Plaintiff and two other people – held weekly meetings in Plaintiff’s apartment to plot the destruction of capitalism and property in Blackacre. We believe that Plaintiff and his cohorts built and exploded the bomb in the bathroom of his apartment in an effort to eliminate capitalism and destroy property in Blackacre. During our cross-examination of Plaintiff, we will ask Plaintiff to confirm these points. If he denies any of them, your Honor, we propose to call his former roommate and collaborator Rabid Rouser, who has personal knowledge of all the matters I have just mentioned. I should add, your Honor, that Plaintiff and Rouser were not merely members of the Blackacre chapter of SPBPRL. They were in fact co-founders of SPBPRL. We will also confirm this point during our cross-examination of Plaintiff or, if need be, through the testimony of Rouser. This is our offer, your Honor, and we ask that you rule that we can proceed in the manner I have just described.

Plaintiff’s counsel states, "Your Honor, this is the most ridiculous story I have ever heard. In any event, all of the testimony and evidence that my esteemed colleague vainly hopes to elicit from Plaintiff and Rouser is inadmissible. And let me tell you why." Before Plaintiff’s counsel can say anything more, Judge Wisdom interrupts her by saying, "No, that’s o.k. I don’t want to hear anything more from you. I’ve got a very bright law clerk. But my sense is that there are some thorny evidence issues here. I’m going to adjourn the trial for a day so that I can consider them diligently." Snickering slightly, Judge Wisdom turns to you and says:

Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if the testimony that defense counsel hopes to elicit from Plaintiff or Rouser – or from both of them – is admissible or inadmissible. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this thorny problem without doing some legal research. So get to work.

Write the memorandum and submit it within 24 hours.