Is Dictation a Lost Legal Skill?

20 10 2011

In the “olden days” of law, which don’t go back so far, lawyers used dictation to write briefs, correspondence, etc.  They would talk into a tape recorder and then their paralegal or secretary would listen to the tape and transcribe everything.  The lawyer would then go through a printout with a (usually red) pen and give it back to the typist who would make the revisions.  This would go on until the document was complete.

Recently, I spoke with an attorney, who is not that old, who still uses this method.  For a number of years, he has been using digital recorders instead of cassettes, and outsourcing the typing.  Instead of his paralegal/secretary doing the typing, he would email the sound recording to a service, which would transcribe it and then email it back as a Word document.  He could then make revisions himself (often on a printout with a pen which he would then give to his paralegal/secretary).

For many lawyers, this method makes sense since they do not type as fast as a trained typist, and they have practice “thinking through speaking.”

For those of us who grew up with computers, this is neither a natural method of thinking, nor efficient.  My smartphone has a voice recorder, so I recently experimented with writing a letter this way.  I found dictation extremely uncomfortable.  Without the ability to quickly glance at what I “wrote” previously, and quickly make edits, I was lost.  For me, doing my own typing and editing is invaluable.  For my clients, it is a huge money saver – my end work product is much faster than if I dictated and had somebody else type, and my hourly rate is lower because I don’t have to cover the costs of a typist.

But I can see how dictation could be a valuable legal skill.  For instance, every motion is spoken instead of written.  This gives the attorney practice making the arguments that he or she will make in court.  By revising the motion multiple times from start to finish, the attorney also gets very familiar with the brief.  I don’t know if this leads to more victories or just costs more, but it is certainly a skill which newer lawyers will not have.

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What Is Reasonable Doubt?

5 10 2011

Beyond a Reasonable Doubt – if you don’t know the phrase from school, you know it from TV crime shows, along with another important one – Innocent Until Proven Guilty. You could easily repeat those phrases back to me, and you could probably tell me a little bit about what they mean. But how well do you understand them? This is an important question, because, while legal scholars have written countless articles and books about the burden of proof in a criminal case, it is ordinary Americans who apply these concepts in courtrooms across the country every day.

In order to find a criminal defendant guilty, you must determine that his guilt was established at trial “beyond a reasonable doubt.” No matter what the defendant is accused of, he is innocent until his guilt is established to that degree, and it is each juror’s responsibility to view the defendant as innocent until he is proven guilty even if that takes a great effort. The burden of proof in a criminal case is very high, and it is designed so that it is more likely for a jury to find a guilty person innocent than an innocent person guilty. A criminal defendant has his or her freedom at stake, and a conviction should not be taken lightly.

In civil cases, as opposed to criminal cases, jurors use lower standards of proof – proof by a “Preponderance of the Evidence” or proof by “Clear and Convincing Evidence.” There is a preponderance of the evidence where one side has more evidence in its favor than the other one does, so that the scales tip slightly to one side. Clear and convincing evidence is present where the evidence establishes a high probability that something is true. Beyond a reasonable doubt, therefore, requires that the evidence prove more than a high probability of guilt.

Even if you think the defendant committed the crime charged, you may not be able to find him or her guilty beyond a reasonable doubt. If, in light of all the evidence, there is a reasonable alternative explanation, even if that reasonable explanation is much less likely than guilt, you have reasonable doubt and the defendant is not guilty.

But how do you decide if your doubt is reasonable? The certainty required for conviction is often described as a “moral certainty” that the defendant is guilty. This moral certainty must exist in every juror, and it is a subjective test, so each juror must make an individual decision as to whether he or she has reasonable doubt. Although the jury deliberates together, the verdict is not a group decision, and each juror has a duty to vote in accordance with his or her own belief as to the existence or absence of reasonable doubt.

Juries often confuse this analysis, simply because it doesn’t come naturally. Presented with a crime, a jury’s natural inclination is to determine what happened, and punish the person responsible. They often become mired in details when, in a proper, beyond a reasonable doubt analysis, the case would immediately fail.

Many of us have lost sight of the seriousness of a criminal conviction and the extent to which all of our rights depend on the high burden of proof in a criminal trial. Our legal system is designed so that the ultimate decision in a criminal case rests on the shoulders of twelve impartial jurors, not on the shoulders of law enforcement, defense attorneys, prosecutors, or victims. It is not the jury’s job to ensure that a criminal doesn’t end up back on the streets, and it is not the jury’s job to avenge or comfort a victim or a victim’s family. It is the jury’s job to ensure that a person who might not be guilty is never convicted.