Tuesday, September 20, 2011
In 2007, the defendant shot a police officer in a Dunkin Donuts in Philadelphia. That fact is uncontested. For the jury, the issue was whether the offense was first or second degree murder. There was a surveillance video of the murder, and the prosecutor showed it in slow motion. (Remember the ending of the movie Bonnie and Clyde?) The trial judge overruled the objection that the slow-motion showing would prejudice the jury. The defendant was convicted of first degree murder.
The issue is now before the state’s Supreme Court. Based on reports of the oral argument. The state’s attorney justified the showing by asserting that the slower video allowed the jury to assess the defendant’s intent. Upon further questioning, the attorney seemed unable to support this statement. Based on reports of the oral argument, I am not sure whether the Court will throw out the trial verdict I am flabbergasted. Commonwealth v. Jordan.
An interesting debate is playing out at Catholic University over the law school's new policy of eliminating co-ed dorms and instead creating same-sex dorms. Catholic Law School's position at its most basic is explained in the below quote from Catholic University President Victor Nakas,
"The transition to single-sex residence halls – a return to a policy that was once common – is rooted mainly in a desire to curb the abuse of alcohol and to stymie development of a “hook-up” culture at the University. The University’s decision will contribute to strengthening its educational process and the holistic development of its students. . . ."
The plan is being opposed by George Washington University Law Professor John Banzhaf who contends the move to same-sex residence halls is an unlawful form of discrimination under Washington D.C.'s Human Rights Act. As you can imagine Catholic disputes Banzhaf's position and believes the plan to move to same-sex dormitories is legally permissible.
For a more detailed discussion of the controversy see the link below.
The Harvard Business Review’s HBR Blog Network includes a post with advice about making oral presentations. Useful reminders even for those with experience in public speaking (or in making a pitch to a client or potential client), and helpful advice for newbies to the task.
Jerry Weissman, Never Ask ‘Does That Make Sense?,’ HBR Blog Network, September 14, 2011.
Tomorrow, from 1:00 to 2:00 p.m. (Eastern Daylight Time), the Practising Law Institute will offer a free webcast for new lawyers beginning practice in a law firm. Topics include:
- Getting to know your colleagues and your competition
- Acting as an ambassador for your firm
- Developing a reputation as a team player
- Becoming a valued resource for co-workers and clients
- Earning cooperation from non-legal staff
- Nurturing client relationships
Practising Law Institute, Welcome to the Firm: Now What? What They Didn’t Teach You in Law School (audio only) (September 21, 2011).
Monday, September 19, 2011
Then you may be interested in the "New Directions" program at Pace Law School which is designed to help attorneys return to practice after an extended absence as well as help those who have never practiced develop their legal chops. Here's a brief description of the program followed by enrollment information for the next session which will begin in January.
From the New Directions website:
Are you an attorney who has taken a leave from practice or never practiced? Would you like to return to the practice of law, or an alternative legal career, but you’re not sure how or where to begin? Would you like to bring your legal skills up to speed, learn and practice on-line legal research, develop a resume, refresh your interviewing skills? Would you like to obtain a current practical legal experience and, as a result, develop a current writing sample, references, and networking contacts?
Pace Law School has developed a unique and innovative program, New Directions, to give lawyers the substantive law updates, professional skills and practical experience they need to return to the legal marketplace, either as practicing attorneys or professionals working in alternative legal careers.
- Comprehensive program consisting of practical legal skills, a substantive law curriculum and career guidance
- Externship with sponsor organization which provides practical experience, supervision and mentoring
- Diverse curriculum covering a wide range of practice areas
- A specially tailored legal research and writing course
- Individualized career counseling and guidance
- Substantive and career-related reading materials and resources
- Assistance with preparation of job-seeking tools, including creation of a resume and cover letter
- Enhancement of job-seeking skills, including preparation for interviews through, among other things, mock interviews
- Instruction in classes earning over 24 New York State CLE credits
- An unlimited number of additional CLE classes through Pace Law CCLE at no extra cost for one year from the first day of the Session
- Networking within the legal community
- Access to job postings during the program and for an additional three months after completion of the program.
New Directions is accepting applications for the upcoming session, which (tentatively) runs from January 17 – June 29, 2012. The deadline to apply is December 1, 2011. Pace will be hosting two information sessions in advance of the deadline. They are:
October 20, 6-8 p.m., Gerber Glass Lounge (3rd floor), Pace Law School, 78 North Broadway, White Plains, NY. RSVP by October 12, email@example.com
November 18, noon-2 p.m., Pace Midtown Center, Room 811, 551 Fifth Ave., New York, NY. RSVP by November 11, firstname.lastname@example.org
7th Circuit bench-slaps attorney for poor writing threatening him with loss of federal bar membership
[Updated with new link - thanks to a reader for letting us that the opinion has been removed from the original site]
Wow. The 7th Circuit really tee-ed off on this plaintiff's attorney for filing an "incomprehensible" complaint and then writing an appellate brief that is so bad, according to the court, that the attorney has been ordered to show cause as to why his license to practice before the 7th Circuit should not be revoked.
The case, Stanard v. Nygren, No. 09-1487, slip op. (7th Cir. Sept. 19, 2011), [try this link if the previous one is dead] involves an alleged violation of the plaintiff's civil rights because the local sheriff apparently required him to hire county deputies as a private security force for an outdoor performance venue the plaintiff had constructed. After giving the plaintiff's attorney three tries at filing an "intelligible" complaint at the trial level, the district dismissed the action with prejudice. The plaintiff then appealed and the 7th Circuit affirmed making things worse for the plaintiff's attorney by ordering him to show cause as to why his license to practice before that court should not be revoked. In addition, the attorney must send a copy of the court's order to the Illinois Attorney Registration and Disciplinary Commission.
Here are some excerpts:
"We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym's persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge's decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym's appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission."
"Applying these principles here, the district court was well within its discretion in refusing to accept Stanard's proposed second amended complaint. We agree that it crossed the line from just 'unnecessarily long' to 'unintelligible.' Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency. Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general 'kitchen sink' approach to pleading the case. This was Maksym's third attempt to draft a comprehensible pleading, yet his effort to comply with the court's earlier directions was half-hearted at best; the proffered second amended complaint was rife with errors. We include a sampling to provide an understanding of its shortcomings: [omitting list on pp. 13-16, including footnote 7, which reproduces a 345-word sentence and runs about 1.5 pages in the slip opinion]"
"One final note: Compounding the problems he exhibited in the district court, Maksym failed to file a reasonably coherent brief on appeal. All the deficiencies that plagued the various versions of the complaint also infected his briefs here. Maksym never directly addressed the issues before this court, relying instead on cases of marginal or no relevance. In the table of authorities in his opening brief, he cites 81 cases, but almost all of them are completely irrelevant to the issues presented here. In his reply brief, after the defendants had crystallized the issues, Maksym again failed to meaningfully-or even comprehensibly-articulate an argument. His appellate briefing was characterized by a reliance on irrelevant, conclusory, and often incoherent arguments of which the following is a representative example: 'Plaintiffs claims were not "intelligible"- no "needle in a haystack" as Appellees' claim.'"
A big hat tip to our own Twitter brief-writing champion Chris Wren for this story.
Competing with the big firms is often a challenge. When it comes to marketing yourself online, the Law Firm Web Strategy Blog (Sept. 13) offers advice:
1. Focus on your specialties.
2. Emphasize service—the personal touch.
3. Offer a fair price—but not too low a price.
The blog posting offers detailed how-to advice.
The topic of discussion this weekend on @lawschoolchat was case briefing. It was interesting to see the opinions/suggestions from students about case briefing as a study tool and what they thought were the best study aids. BTW, Examples & Explanations (especially for “Contracts”) was the clear favorite.
Here are some useful resources to help students master case briefing:
Andrew J. McClurg, 1L of a Ride: A Well-Traveled Professor's Roadmap to Success in the First Year of Law School (2009)
Shana Connell Noyes & Henry S. Noyes, Acing Your First Year of Law School: The Ten Steps to Success You Won't Learn in Class (2008)
Ruta K. Stropus & Charlotte D. Taylor, Bridging the Gap Between College and Law School: Strategies for Success (2009)
Peter T. Wendel, Deconstructing Legal Analysis: A 1L Primer (2009)
Westlaw & LexisNexis – students can read the case summaries prepared by the editors (although this is no substitute for writing a case brief, I am told that students use this tool to be “prepared” for being called on in class).
Sunday, September 18, 2011
Do those long "privilege" disclaimers at the end of emails really protect against inadvertent waivers?
Even if they don't, what's the downside to including them other than creating a minor annoyance? And as one commenter pointed out, a disclaimer may be effective insofar as it identifies the body of the email as "confidential." From the Economist:
Spare us the e-mail yada, yada.
“IF THIS e-mail is received in error, notify the sender immediately.” “This e-mail does not create an attorney-client relationship.” “Any tax advice in this e-mail is not intended to be used for the purpose of avoiding penalties under the Internal Revenue Code.” Many firms—The Economist included—automatically append these sorts of disclaimers to every message sent from their e-mail servers, no matter how brief and trivial the message itself might be.
E-mail disclaimers are one of the minor nuisances of modern office life, along with fire drills, annual appraisals and colleagues who keep sneezing loudly. Just think of all the extra waste paper generated when messages containing such waffle are printed. They are assumed to be a wise precaution. But they are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.
Many disclaimers are, in effect, seeking to impose a contractual obligation unilaterally, and thus are probably unenforceable. This is clear in Europe, where a directive from the European Commission tells the courts to strike out any unreasonable contractual obligation on a consumer if he has not freely negotiated it. And a footer stating that nothing in the e-mail should be used to break the law would be of no protection to a lawyer or financial adviser sending a message that did suggest something illegal.
So why are the disclaimers there? Company lawyers often insist on them because they see others using them. As with Latin vocabulary and judges’ robes, once something has become a legal habit it has a tendency to stick. Might they at least remind people to behave sensibly? Michael Overly, a lawyer for Foley & Lardner in Los Angeles, thinks not: the proliferation of predictable yada-yada at the bottom of messages means that people have long since stopped paying any attention to it.
So what should you do in the event of an inadvertent disclosure? The Lawyerist blog suggest that the steps you take immediately upon learning of it will likely be the most relevant evidence to a court trying to decide whether the privilege has been waived.
Thanks to our sister publication the Legal Profession Blog for this arcane bit of practice management advice. The story refers to an order from the South Carolina Supreme Court which ruled that an attorney appointed to protect the interests of another attorney's clients (presumably because the first attorney was censured or disbarred?) can destroy the client's files if they have not been maintained in a sanitary or safe manner.
On several occasions, an attorney appointed to protect the interests of another lawyer's clients...has notified the Court that the lawyer's client files are not maintained in a sanitary and safe condition. In some cases, the attorney to protect has advised the Court that the lawyer's client files are moldy and/or infested with rodents and insects. As a consequence, the attorney to protect clients' interests is hesitant to inventory the lawyer's client files, to remove original documents from the client files, and to relinquish control of the files to the lawyer's clients upon client request.
In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.
The Conference also authorized an increase in the Judiciary's electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system.
The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of six months.
The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.
The list is from Lateral Link via Above the Law. Most of it is equally good advice for getting ahead in law school too but especially pertinent may be the tip about making your rough drafts as good as possible - the more effort you put into them, the quicker you'll move up the learning curve.
Be professional…always – You will establish your reputation early in your career, so be wary about your emails, phone calls, and conversations. Reputation at the firm matters and junior associates’ (and summer associates’) reputations carry with them for many years. It takes years of diligence and trust to develop a reputation; it only takes one unprofessional email (and feature story on Above the Law) to ruin it. (Ed note: we used to refer to this as the coral reef syndrome in law school - as in "it takes thousands of hours to build a good GPA [or coral reef] and all it takes is one bad grade [or storm] to destroy it."
Know your deadlines - For every assignment, always ascertain the deadline and find out if it is a soft or hard deadline. A hard deadline is the absolute final date that an assignment must be completed by (i.e. a filing date); soft deadlines are typically internal to the firm or a partner. Regardless of the type of deadline, you should be diligent either way and get your assignments complete on time. By knowing your deadlines and planning in advance, you can plan your personal life around your professional life. Sometimes deadlines will interfere no matter how diligent you are with your schedule. In that case, suck it up unless it is really important.
Make your rough drafts solid - A rough draft should be as close to perfect as possible. "Rough" only refers to the legal analysis, not the writing, grammar, or spelling. Your rough draft should not look like a drunk text you sent the previous weekend, so no cute abbreviations or emoticons. Any notations or comments that make sense only to you should be removed or clarified.Network early and get connected - Firms are very political and knowing the right people can make a huge difference in which direction your career takes. Get to know and work with the most influential people at the firm (partners and associates) and you will greatly improve your working experience and longevity. Even though it’s been over a year since the last big firm associate layoff, you should never forget that you may fall victim to a future round of layoffs. It is a lot harder to fire someone you know and like than a person you only know on paper. Furthermore, if you are well-connected within your firm, there will be more people willing to go to bat for you (whether that means a good assignment, promotion, or getting to keep your job).
Read the rest of the tips here.
Maybe we should think about a more aggressive and preventative approach to dealing with student stress. From the Chronicle of Higher Education:
China’s Ministry of Education has ruled that all university students must take mental-health classes covering sex education and how to handle romance and academic pressure, the official China Daily newspaper reports, quoting a senior ministry official. Previously, such courses were voluntary, but the ministry ordered universities to draft a seven-part compulsory program in June, the official said. A pilot program in April at Beijing universities drew ridicule from some students, who criticized it as unnecessary. The ministry is concerned over the number of students who struggle to cope in college, according to the official. Many of China’s students come from single-child families, face enormous pressure to succeed, and have little experience of group living.
A few weeks ago, I blogged that behavioral biology is an important legal skill because it provides the proper model for human behavior, which is necessary to understand the law. Having the right behavioral model is especially important to an area like feminism, where advocates feel that significant changes need to be made. I have posted an article on SSRN entitled Evolutionary Feminism in which I deal with this issue.
Abstract: As a group of scientists have asserted, “insights provided by evolutionary psychology have increasingly been applied to practical societal problems.” Evolutionary feminists have employed evolutionary psychology to study gender problems. This includes law, and previous studies on gender have encompassed such issues as sexual harassment, sexual assault, and infanticide.
Evolutionary feminists think that evolutionary psychology provides better ways of studying gender problems than traditional feminist approaches. Professor Baker has declared: “Therein lies biology's attraction to feminists. By laying bare the harsh reality of nature, it forces us to embrace our normative convictions. . . . What feminists call patriarchal culture, biologists call nature, but whatever it is called, anyone with any moral sensitivity can readily see that it is an altogether inferior, unjust, and undesirable place to be. And as biology makes plain, it is up to us to change it.” Or, as Professor Vandermassen has declared, “I believe, however, as do other Darwinian feminists, that it is only through taking into account our evolved human nature that it will be possible fully to understand the sources of women’s oppression.” She has added: “Instead of being destiny, biology is our ally in the struggle for women’s rights.”
Part II of this paper will discussion evolutionary feminism in general and in the legal academy. It will begin with general principles of evolutionary psychology and evolutionary feminism. It will then examine how evolutionary feminists have dealt with particular gender problems, such as mate selection, marriage, domestic abuse, abortion, intrasexual female competition, and sexual harassment. Part III will evaluate evolutionary feminism and make additional proposals. This part will begin with a general critique of evolutionary feminism, then focus on the specific topics discussed in Part II.