November 17, 2010
"Move It Along, Counsel"
With these words, a judge or a master politely lets the lawyer know that the case is dragging and the lawyer needs to move through the evidence more quickly.
In “New Matter” (Oct. 2010), the publication of the Chester County (PA) Bar Association, James P. MacElree, President Judge of Pennsylvania’s 15th Judicial District states, “You can expect to have strict time limits imposed and enforced by the Judge or Maser for any of the following:
Using 40 words when 10 will do.
Answering questions with spin instead of directly.
Calling repetitive or cumulative witnesses.
Asking the same questions multiple times,
Certifying the case for one day when you know it will be longer.
Filing certificates of trial readiness when you are not really ready.
Failing to mark your exhibits in advance of trial.
Failing to properly prepare your witnesses.
Failing to supply the statute or case that supports your position.
Beating a dead horse until the rotted flesh is stripped from its bar bleached bones.”
Here is an 8 page report from the University of North Carolina School of Government on the authority of courts to impose time limits on trials and suggestions on how to impose limits in state courts so as to avoid reversal on appeal. (It is generally agreed that federal courts have this authority.)
November 16, 2010
Road Map Paragraphs: An Outdated Metaphor?
In teaching legal writing, most of us encourage students to write road map paragraphs, that is, a paragraph in the introduction that informs the reader of the organization of the ensuing discussion--where you are going. This metaphor works for readers who use maps. However, a few days ago, my 22 year old daughter refused to take a road map with her on her trip out of state. She told me that she doesn't really understand how to use maps. For her, GPS is the replacement. For others, it's Mapquest. Perhaps we need an updated metaphor for the new generation of students.
November 11, 2010
Integrating Practice Management Tools in Law School
Contributing editors of the Legal Skills Prof Blog, Dennis Kennedy and Tom Mighell, host a legal technology podcast called The Kennedy-Mighell Report on the Legal Talk Network. In the latest episode, "Integrating Practice Management Tools in Law School," they take a close look at one interesting development in the way legal technology tools used by practicing lawyers might be used in law school classes. They interview four people, including the professor and a student involved in the experiment, and try to give a practical, “on the ground” report of what happened, how it worked and how others might follow the same path.
Here’s the podcast description:
With law firms cutting back or eliminating summer internships and law schools focusing on teaching theoretical legal concepts, law students find themselves in a difficult position in a difficult market. How can law students learn needed practical skills, including how to use legal technology? In this episode, co-hosts Dennis Kennedy and Tom Mighell talk to Professor Clark D. Cunningham from Georgia State University College of Law, Jonathan Call, law school student at GSU College of Law, Jack Newton from Clio and Andy Adkins from the University of Florida Levin College of Law, about the exciting and innovative efforts to bring practical skills training, including legal technology, to law schools and law students.
Check out the podcast and let us know what you think. We’d also be interested in collecting examples of similar efforts. If you know of any, mention them in the comments to this post.
November 08, 2010
Congratulations to George Gopen!
Congratulations to George Gopen, who is the 2011 recipient of the Legal Writing Institute’s Golden Pen Award. I have long regarded George as my legal writing mentor. Years ago, I attended George’s 12 hour program at Duke. I discovered an approach to writing that went way beyond what the conventional sources had taught me. He was on the cutting edge. My students and I have been the beneficiaries of his hard work.
Here is a lengthy 2007 interview with George posted on Idealawg. It offers a delightful autobiography and an outline of his writing philosophy.
Drafting Independent Contract Agreements
The October 2010 issue of the “Wyoming Lawyer” offers a helpful article on drafting independent contractor agreements. As lawyer/author Robert W. Wood notes, in the absence of a well-drafted agreement, an independent contractor may be viewed as an employee, a recharacterization that has consequences. The article offer detailed advice for the drafter. Drafting an agreement could be a good class exercise. Here is a link to the issue of the publication. The article is on page 53.
November 07, 2010
Continuing Legal Education AND Pro Basketball
The Pennsylvania Bar Institute joins CLE with basketball. From 5 to 6 p.m., get an hour of CLE credit (CLE is mandatory in PA), and at 7, take in a home game with the Philadelphia 76ers. Great marketing. Now, how could we adapt this to our classes? Take the class and then adjourn to a sports bar with one free drink? How many sports metaphors could we squeeze into the class?
November 04, 2010
Open-ended Power of Attorney Can Go Too Far
Can a lawyer have a client sign a power of attorney authorizing the lawyer to execute for the client all the important documents in a matter—for example, settlement agreements and settlement checks? No, except in extraordinary circumstances say the Ohio Supreme Court’s ethics board. Such a practice “shortchanges the client’s role in the legal representation.”
Here, the ethics board was addressing a contingent fee agreement containing this authorization. Query: Would the same concerns apply to a non-contingent fee agreement? One would think so. U.S. Law Week summarizes the opinion in some detail.
Institute for Law Teaching and Learning Conference: June 1-3
The Institute for Law Teaching and Learning is inviting proposals for presentations at its upcoming conference at New York Law School on June 1-3, 2011. The title of the conference is “Engaging and Assessing Our Students." The conference invites proposals on techniques for generating student engagement and for improving assessment of students to enhance their learning. I have always found the Institute’s conferences to be rewarding and fun. The deadline for proposals is February15.
October 31, 2010
Poppy Seeds Give Positive Drug Test Results
Imagine a new mom losing her child because she ate a poppy seed bagel before giving birth. That’s what happened to a mom in New Castle, PA, when the seeds caused a false positive and led the county children and youth services agency to seize the new born without a hearing. According to the Pittsburgh Tribune-Review, mom and dad are suing with the assistance of the ACLU. Another issue of which lawyers should be cognizant.
October 29, 2010
Four-Year Old Can be Sued, Judge Rules in Bike Case
According to the New York Times, a four year old can be sued for negligence. While racing on her bike (with training wheels), the girl ran down an 87 year old woman. One wonders if the judge ever had children.
October 28, 2010
Clinics and Working with Practitioners can Prompt Law Reform
A recent article by Marisa Cianciarulo and Claudia David demonstrates how clinical work and practical expertise can contribute to developing law reform. The article is “Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women,” 59 American University Law Review 337 (2009). Here’s the abstract:
For over a decade, women seeking asylum from persecution inflicted by their abusive husbands and partners have found little protection in the United States. During that time, domestic violence-based asylum cases have languished in limbo, been denied, or occasionally been granted in unpublished opinions that have not provided a much-needed adjudicative standard. The main case setting forth the pre-Obama approach to domestic violence-based asylum is rife with misunderstanding of the nature of domestic violence and minimization of the role that society plays in the proliferation of domestic violence. Fortunately, however, a recent Obama-administration legal brief indicates that women fleeing countries where governments are unable or unwilling to protect them from their abusive husbands finally may be able to avail themselves of U.S. asylum law. This article proposes a workable standard for adjudicating such claims. Based in part on psychological research on the dynamics of abusive relationships, particularly the phenomenon known as “separation violence,” this article formulates a particular social group that satisfies the various legal elements for political asylum: “women who have left severely abusive relationships.” This social group is based on research demonstrating that abusers strike out with increased violence when their partners leave the relationships, in many cases even killing them. This article explores the dynamics of abusive relationships, the failure of U.S. adjudicators to understand those dynamics, and the application of international human rights law to domestic violence survivors.
Professor Cianciarulo conducts the Family Violence Clinic at the Chapman University School of Law and has an extensive background in the immigration field. Dr. David is a practicing psychologist specializing in abusive relationships. Their experience has permitted them to make a real contribution that may help refugees from domestic violence.
October 27, 2010
Hard Copy Texts or E-Books?
According to a study by the National Association of College Stores, 76 percent of students surveyed preferred hard copies. The Chronicle of Higher Education reports on the study.
October 26, 2010
The Consensus Builds: Legal Education Reform is Necessary
From guest blogger Christine Mooney at Villanova:
The march toward legal education reform continues. The latest conversation took place at a conference at the University of Wisconsin Law School on October 22-23 entitled “Legal Education Reform after Carnegie: Bringing Law-in-Action into the Law School Classroom.” Attendees included educators from around the country including Anne Colby and William Sullivan, two of the authors of the Carnegie Foundation report, “Educating Lawyers: Preparation for the Profession of Law.” The keynote presenter was David Wilkins, the Harvard organizer of the Future Ed program who hosted the FutureEd 2 in Cambridge the previous weekend.
The Wisconsin conference included a heavy emphasis on interdisciplinary teaching as well as ethics, including a panel focused specifically on teaching ideas for incorporating ethics into Legal Writing. One of the many examples of interdisciplinary teaching is Wisconsin’s Center for Patient Partnerships, a program that brings together students and professionals in law, medicine, public health, social work, pharmacy, public affairs and science to advocate on behalf of patients. Programs like these offer students the chance to partner with other professionals outside their own discipline. These experiences not only broaden student perspectives, but also prepare students for the team approach that clients increasingly seek from their lawyers. It seems to me that the key to success in developing these programs is to build around the strengths and resources already available at your institution. Initiatives can start with a partnership with one other discipline and expand to include others as the program develops.
October 25, 2010
Is Law School a Good Investment?
Yes, if the new lawyer’s salary is $65,000. So says Northwestern Law Dean David Van Sandt. Two law professors think the break even point may be higher. With higher tuition rates and an ongoing recession, they also predict that less prestigious law schools may close. For a report from the ABA Journal Online, click here.
October 22, 2010
CLE: Representing Individuals with Disabilities
Mark Murphy, Esq., Disabilities Rights Network and David Gates, Esq., Pennsylvania Health Law Project will discuss best practices in the field of disability law. The discussion will cover recent developments surrounding the Americans with Disabilities Act (ADA), as well as case studies showing what private attorneys need to know to help their clients with disabilities get health care. The case study portion of the CLE will focus the changing rights of persons with disabilities when they reach adulthood and challenges facing those with acquired disabilities.
Thursday, October 28, 2010, 3:45 – 6:00 pm
Villanova School of Law, Rm. 303
2 CLE credits - Free
There is no fee for this CLE, but please RSVP at eventbrite: http://www.eventbrite.com/event/852978281
Any questions, please feel free to contact Liz Dunn at email@example.com
Suing a D.A. for inadequately training employees
Gordon Cooney, a 1984 graduate of Villanova Law School and Managing Partner of the Philadelphia office of Morgan Lewis & Bockius, argued before the U.S. Supreme Court on October 6, continuing his 22 year representation of John Thompson. In 1985, Thompson, a 22-year-old New Orleans resident, was arrested, tried, convicted and sentenced to death for the murder of a wealthy white hotel executive. Cooney and his Morgan Lewis partner Michael Banks, took the case pro bono, and handled it through a series of appeals. When what appeared to be the final appeal was denied, Cooney and Banks began to prepare Thompson for his impending execution. Just weeks before Thompson’s execution was scheduled to occur, Cooney and Banks uncovered exculpatory evidence that had been intentionally suppressed by the prosecution. This resulted in another appeal in which Thompson’s conviction was overturned. He was retried, with Cooney and Banks as trial counsel, and Thompson was acquitted. In 2005, the lawyers helped Thompson file a civil suit against the Orleans Parish District Attorney’s Office, led at the time by Harry Connick, Sr. , and against prosecutors in their official and personal capacities, seeking compensation for Thompson’s unjust incarceration. Two years later, a jury found that Connick had engaged in a pattern and practice of failing to properly train his prosecutors about their obligations to provide defense attorneys with exculpatory evidence, as required the Supreme Court’s Brady decision, and that Thompson’s imprisonment was a direct result of those actions. Thompson won a $14 million verdict. The DA’s office appealed and Thompson prevailed in the 5th Circuit. The Supreme Court granted cert on the question of whether the usual rule of immunity that would protect a state prosecutor’s office from liability for the actions of its employees does not apply because the prosecutors acted illegally as a result of the office failure to train adequately its employees.
Applied Storytelling Conference, July 8-10
Applied Legal Storytelling Call for Proposals
The Legal Writing Institute and the Clinical Legal Education Association are co-sponsoring the third biennial International Applied Storytelling Conference, July 8-10, 2011 at University of Denver, Sturm College of Law. This is a very collegial and supportive conference and welcomes proposals from people who are new to applied storytelling as well as from those who have already been part of the conversation. Proposals are due December 7, 2010 and the information can be found here. A bibliography of articles from the first two conferences can be found here.
October 20, 2010
Advice from a Trial Judge
Advice From a Trial Judge
John E. Stively, Jr. was an eminent trial judge in Chester County , Pennylvania. When he retired in 1986, he was asked for his advice on being an effective courtroom advocate. Here are his 38 pieces of advice. Many years later, they remain timely.
1. Rise to your feet when addressing the Judge.
2. Show the Judge respect.
3. Don’t ask the Judge tactical questions.
4. Only object when questioning will hurt, not because
it’s technically correct.
5. At sidebar take a position and hold it; don’t withdraw
an argument because it makes a difficult decision
for the Judge.
6. Don’t protest an adverse ruling - get ready for the
7. Don’t appear to be a friend or buddy with opposing
counsel (in front of jury); don’t use first name;
8. Don’t let jury think the case is a joke; don’t smile too
much during trial or laugh.
9. Never argue directly with opposing counsel; address
the Judge and make comments through the Judge.
10. Don’t let opposing counsel make a speech to a jury.
When asked for the ground for objection, don’t let
him or her begin with “I’m trying to show”.
11. Don’t let counsel conclude with leading questions
to capsulize the testimony; don’t let counsel lead on
12. Appear to be in control in front of jury; seem to
know what you’re doing. Have correct papers organized;
don’t fumble with items in front of jury.
13. When standing in front of jury, stand on own feet,
look them in the eye; don’t lounge against anything.
14. Use change in volume to make a point; hit the
important points; vary your voice.
15. Avoid “ahh” and “you know”.
16. Listen to yourself once in awhile.
17. Have the witness speak up.
18. If a witness marks something, have it identified and
shown to the jury; let them in on the secret, not in
closing argument or jury room - YOU ARE TRYING
TO CONVINCE JURY.
19. Use diagrams and charts to help jury understand.
20. Prepare your case - facts and law.
21. Make a checklist of things you have to prove (e.g.,
value in theft case).
22. Have a checklist for each witness.
23. Don’t ask questions like “Do you know, if the watch
was running” because the answer “yes” implies the
watch was running but that isn’t the question. Don’t
use “Did you have the occasion to do something?”
24. Be careful of the last question on cross.
25. Highlight the essence of a witness testifying in closing
26. Rothblatt “The Art of Cross-Examination” - READ IT
27. In cross, try to figure out what you want to accomplish;
don’t just have witness regurgitate testimony;
leave alone good answers for you; don’t let the witness
have an opportunity to patch up an answer he
28. Make notes of direct examination; draw line down
middle what witness says on left, questions on right.
29. Sometimes it’s smart not to ask questions on cross.
You can imply that the witness is lying by the way
you tell the Judge that you “don’t have a single solitary
30. Every question of cross should be leading.
31. Don’t ask a question unless you have a chance of
proving it wrong; don’t let a witness give truthful
testimony - he’ll sound and look truthful. A witness
who is lying will want to testify about those aspects
of the matter which are truthful and brush over the
part where he has to lie. Focus your questions on
the part he’s lying about.
32. A witness with sympathy of jury (e.g., mentally
slow), don’t tear apart; cross examine kindly if you
33. Always remember the jury is the group you’re trying
34. Be the trial advocate you want to be and make yourself