Wednesday, October 26, 2011
This is a white paper from the information technology consulting firm Cognizant. The full title is "The Future of Legal Research: Meeting Lawyer Requirements by Delivering More Contextually-Sensitive and Relevant Results." From the summary:
Research is one of the most vital and time-consuming activities in a lawyer’s workload. While the legal information industry has innovated by improving search efficiency, the effectiveness of search largely relies on the research expertise of lawyers, paralegals and law librarians. The vast growth of available data adds additional challenges to the task of identifying the most critical and relevant information to a case or client matter.
With access to activities and data that a lawyer manages — including client information, current matters and ongoing client development opportunities — next-generation search algorithms should be able to understand lawyer research requirements and automatically parse legal information databases to extract relevant resources. The vast search history and usage patterns available from information service players can be leveraged to build intelligent search systems that can largely automate much of the tedious research work and present relevant results directly, improving speed, accuracy and relevance.
This white paper explores a scenario for constructing an automated search engine that parses complex legal information and returns more contextually-sensitive and relevant results that can be easily integrated with a law firm’s existing knowledge management systems and workflows.
Some highlights have been conveniently summarized here by Legal Research Plus:
Social media, crowdsourced data and other sources of information continue to generate volume and increase complexity.
Leveraging search history, information search providers can start analyzing how lawyers actually search to build artificial intelligence tools for constructing queries based on cases on which a lawyer is currently working.
Deriving context involves analyzing the pleadings to understand the legal issue.
Proactive search is an ideal opportunity to highlight the value of paid content. By providing relevant free content and abstracts of paid content, the legal information industry can target upgrading of customers.
Better value propositions such as pay-per-result and assistance in discovery of relevant results can improve conversion rates.
Ideally, a single-sign-in, cloud-based solution that provides access to various tools and ensures maximum integration of research and case data with litigation tools will benefit lawyers the most and also help to attract users and keep them loyal to one platform.
Thanks to Stanford's LRP for the tip and summary.
Judge Carolyn Tornetta Carluccio of the Montgomery County (PA) Court of Common Pleas tells me that when she hands out her Rules of Courtroom Decorum to the lawyers appearing before her, the proceeding flow more civilly.
- When addressing the Judge, always stand – it is a sign of respect for the process.
- Always direct comments and arguments to the bench – a conversation should not occur in the Courtroom with the Judge being left out.
- Know when to stop arguing. When a ruling or decision is made, accept it and move on to the next area of the case.
- During discussions and objections, don’t raise your voice in anger or objection to the Court or your opponent. You can always alter the volume of your voice, but a Courtroom is not the place for yelling and screaming.
- Never point your finger at the Judge, interrupt her or tell her she is wrong.
- Never criticize your opponent personally. Criticize the facts or evidence, but never your opponent or the Judge.
- Know the Rules of Evidence – if you argue them effectively, there will be no reason to have tantrums.
- The Court is not your secretary. Come to trial with sufficient copies of pre-marked exhibits.
- Remember your ethical and moral responsibility to the Court of candor and honesty.
- Don’t react emotionally to a ruling as if it were personally directed to you. If, for some reason, the case is indeed personal to you, you are too close to the issue to be the attorney for the client.
- Law is a profession, not a business. Remember, what is best for your client, may not always be best for your pocketbook.
- Remember you are a professional. You will win and you will lose. This is our legal process.
Tuesday, October 25, 2011
Tenure Track Position: Clinical Professor of Law to direct Media Law Clinic at Yale Law School
Yale Law School invites applications for a clinical professor of law to run a clinic on First Amendment, Media Freedom and Information Access issues at Yale Law School.
The clinical professor will work with Yale's Information Society Project (ISP) on media and information policy issues.
The professorship will be a tenure-track position with the potential of clinical tenure.
Nature of Position
(1) The clinical professor will run the law school's Media Freedom and Information Access clinic.
The clinical professor will manage litigation, teach, and supervise students in the clinic. The clinical professor will also coordinate the clinic's relationships with supervising attorneys with whom students may cooperate. Yale's Media Freedom and Information Access clinic will accept cases on issues related to both old and new media, in areas including freedom of speech, freedom of the press, freedom of information, telecommunications, intellectual property, privacy, and Internet law. The clinical professor will be expected to develop and expand the clinic's work through important litigation that promotes media freedom and information access. The clinical professor will be expected to establish and maintain the clinic's relationships with other organizations devoted to promoting media freedom and information access.
(2) The clinical professor will be a faculty fellow of the Yale Information Society Project (ISP). Founded in 1997, ISP is an interdisciplinary center that studies the implications of new information technologies for law and society, committed to the goals of democracy, development and civil liberties. As part of ISP, the clinical professor will work with ISP fellows on policy issues concerning Internet, telecommunications, and media law. The clinical professor will publish scholarship and oversee scholarship by ISP fellows and students on these and related issues. The clinical professor will also work with the fellows and students of the ISP in their amicus practice.
(3) In addition to directing the media freedom clinic, the clinical professor may also teach courses in the law school on media, Internet law, and related issues.
Applicants should have at least five years' experience in litigation concerning the First Amendment and media law-including both old and new media-and have broad experience in media and Internet-related issues including freedom of information, intellectual property, telecommunications and privacy. Applicants should have outstanding legal writing skills, high ethical standards, sound judgment, and the ability to motivate and train law students and promote teamwork.
The Law School seeks applications with strong academic ambitions who can help lead a program in media law and information policy at Yale that contains both litigation and policy components.
Highly desirable attributes that the appointments committee will consider include:
(1) Prior law school teaching experience.
(2) A track record of previous publications in media law, information policy, intellectual property, telecommunications, and privacy and related fields, and a demonstrated commitment to scholarship.
(3) A working knowledge of first amendment, media law, journalism, Internet law, and information policy organizations with which the clinic and the ISP might partner.
Interested candidates should sent a cover letter and c.v. to Beth Barnes at email@example.com.
Michael J. Wishnie
Clinical Professor of Law
Yale Law School
Last week, I posted the story of a criminal defendant assertin that he didn’t really mean the threats that he had posted on Facebook. I repost that email below. Update: The jury did not buy his argument and convicted him on four counts. Here is the story from law.com
A federal jury on Thursday found a Facebook user guilty of four counts of threatening his estranged wife, the Pennsylvania State Police and the Berks County Sheriff's Department, a kindergarten class, and an FBI agent and not guilty of threatening patrons and employees of Dorney Park, where he used to work.
A federal prosecutor and a defense attorney took the same social networking posts made by Anthony D. Elonis in the autumn of 2010 and asked a federal jury in the Eastern District of Pennsylvania to view them in very different ways.
To federal prosecutors, Elonis' posts on the site were the perfect way to make sure people in his life became fearful for their lives.But to defense counsel, Elonis' Facebook posts were a way to vent his anger as his life came unhinged when his home life fell apart and he lost his job.
Here is my earlier post:
From the Legal Intelligencer:
A man indicted for allegedly making violent threats on a social networking site toward his estranged wife, law enforcement officers, his former co-workers and to an unspecified kindergarten class was not committing a crime because his words were more like the lyrics of an artist who raps an intent to commit violent acts, his defense attorney argued in federal court Monday.
His lawyer argued that these postings were “rhyme settings” that enjoyed First Amendment protection.
The federal district judge evidently was not persuaded and declined to dismiss the charges. The jury will have to decide if the threats were “true threats” that violated a federal statute outlawing “any communication [in interstate or foreign commerce] containing any threat . . .. to injure the person of another.”
An op-ed in the New York Times by Clifford Winston suggests that the legal profession could be improved by getting rid of barriers to entry, such as law school and bar exams. The writer states, "The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance." The author charges that rather than protecting quality, these barriers protect lawyers from competition. He claims that if the barriers to entry were be eliminated, costs for legal services would come down, the poor would benefit from lower prices, lawyers would start their careers with less debt, and consumers would have more information. Finally, "if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do."
While this article sees real problems with the legal industry, it goes too far with its solutions. While I am not naive enough to think that lawyers don’t welcome the barriers to competition, the point that law school and the bar exam are needed to protect clients is an important one. Practicing law is not easy. While many people can write simple wills, those people cannot see the serious consequences that the will might have when the testator dies. Anyone can play chess, but only a chess master can see the long-term consequences of each individual move. I practiced law five years before going into teaching, and I can honestly say that I never had a simple case. I certainly do not want a doctor who did not go to medical school and pass the licensing exam to treat me. A few years ago, my father went to his doctor to have the wax cleaned out of his ears. The doctor found a heart value problem that was due to not having enough iron. He now takes iron everyday, and he is in good shape for an 88-year old.
As I have stated several times on this blog, we do need greater legal services for the poor. However, the poor do not need poorly-trained lawyers who will get them into greater trouble.
The writer is also correct that professionalism rules do prevent corporations from offering legal services, and that this is a barrier to entry. However, doctors lack this protection, and medical costs have gone up, not down. Adding businessmen to the provision of legal services creates another group of people who will want to be paid.
While I disagree with his draconian proposals, I do agree with the writer that significant changes need to be made in the legal profession. As we have stated many times on this blog, legal education needs to be reformed so that law school graduates are practice ready. Similarly, the bar exam needs to be reformed so that it tests better for practical skills. One can pass the bar exam without being able to write a will or a contract. Also, as I have argued several times before, there needs to be better legal services for those who have trouble paying for it. Moreover, as I have also mentioned before, something needs to be done about the student debt problem. Finally, consumers do need more information about lawyers.
Clifford Winston, an economist and a senior fellow at the Brookings Institution, is the co-author of “First Thing We Do, Let’s Deregulate All the Lawyers.”
In a sort-of book review in yesterday’s New York Times, technology writer Steve Lohr highlights a forthcoming e-book — Race Against The Machine: How the Digital Revolution is Accelerating Innovation, Driving Productivity, and Irreversibly Transforming Employment and the Economy — on the impact of technology innovation on job growth in what Paul Krugman has dubbed the “Lesser Depression.” With computerized technology rapidly working its way into domains (including law) formerly regarded as the exclusive provinces of human skills, one of the authors declares that “the key to winning the race is not to compete against machines but to compete with machines.” (Until, of course, the machines decide they’d rather compete against humans instead of with them.)
From the New York Times article:
A faltering economy explains much of the job shortage in America, but advancing technology has sharply magnified the effect, more so than is generally understood, according to two researchers at the Massachusetts Institute of Technology.
. . . .
Erik Brynjolfsson, an economist and director of the M.I.T. Center for Digital Business, and Andrew P. McAfee, associate director and principal research scientist at the center, are two of the nation’s leading experts on technology and productivity. The tone of alarm in their book is a departure for the pair, whose previous research has focused mainly on the benefits of advancing technology.
. . . .
Technology has always displaced some work and jobs. Over the years, many experts have warned — mistakenly — that machines were gaining the upper hand. In 1930, the economist John Maynard Keynes warned of a “new disease” that he termed “technological unemployment,” the inability of the economy to create new jobs faster than jobs were lost to automation.
But Mr. Brynjolfsson and Mr. McAfee argue that the pace of automation has picked up in recent years because of a combination of technologies including robotics, numerically controlled machines, computerized inventory control, voice recognition and online commerce.
Faster, cheaper computers and increasingly clever software, the authors say, are giving machines capabilities that were once thought to be distinctively human, like understanding speech, translating from one language to another and recognizing patterns. So automation is rapidly moving beyond factories to jobs in call centers, marketing and sales — parts of the services sector, which provides most jobs in the economy.
. . . .
The skills of machines, the authors write, will only improve. In 2004, two leading economists, Frank Levy and Richard J. Murnane, published “The New Division of Labor,” which analyzed the capabilities of computers and human workers. Truck driving was cited as an example of the kind of work computers could not handle, recognizing and reacting to moving objects in real time.
But last fall, Google announced that its robot-driven cars had logged thousands of miles on American roads with only an occasional assist from human back-seat drivers. The Google cars, Mr. Brynjolfsson said, are but one sign of the times.
. . . .
“This technology can do things now that only a few years ago were thought to be beyond the reach of computers,” Mr. Brynjolfsson said.
Yet computers, the authors say, tend to be narrow and literal-minded, good at assigned tasks but at a loss when a solution requires intuition and creativity — human traits. A partnership, they assert, is the path to job creation in the future.
“In medicine, law, finance, retailing, manufacturing and even scientific discovery,” they write, “the key to winning the race is not to compete against machines but to compete with machines.”
Steve Lohr, “More Jobs Predicted for Machines, Not People,” N.Y. Times, October 24, 2011, p. B3 (national edition).
Monday, October 24, 2011
Electronic distractions like laptops that cause students to disengage during class can be demoralizing to the teacher who gets most of his professional satisfaction and fulfillment by connecting with students. And that may lead to lower morale and less enthusiasm for other parts of the job such as scholarship and service. At least that's a theory suggested by this Chronicle of Higher Ed in this article titled "Ill-Mannered Students Can Wreck More Than Your Lecture."
Sure, there's the old saw that goes "if students are distracted, it's probably because you're a boring teacher." Teachers always have to look close and hard at their role in creating uninterested, disengaged students. On the other hand, even the most engaging teacher will have trouble competing with Facebook, video games, porn, shopping and other online attractions that our brain is programmed to seek out.
Enthusiasm for teaching is hard to sustain when students seldom make eye contact because their heads are bent over their iPhones, believe they can follow the class discussion while updating their Facebook pages, and habitually arrive late, leave early, or don't show up at all, confident that the day's material will be posted online and available "on demand." If the six million results yielded by a quick Google search of "digital distractions in the postsecondary classroom" is anything to go by, these are common occurrences. And they can undermine the enthusiasm of any professor.
. . . .
Being demoralized and offended, however, never propelled anyone further along the path of creative productivity. Instead, it digs us deeper and deeper into a rut of self-fulfilling prophecy. By berating ourselves for being poor classroom teachers, we become poor teachers. By criticizing our students' classroom behavior, we constantly find evidence to substantiate our claims. It becomes perversely gratifying to be proved right over and over again.
But it also becomes stale and self-defeating because the negative emotions associated with this state—indignation, self pity, cynicism, and apathy—block our ability to assume a consistently logical, objective perspective. And insofar as the best scholarly work is logical and objective, our ability to produce sound scholarly work is undermined. We become "stuck in a moment" of a limited, disheartening perspective. And there's no traction to be had there.
There's also no joy. Thus we lose an additional element necessary for a productive scholarly output: the self direction—and confidence—that comes from liking what we do. The different aspects of our jobs can't be neatly compartmentalized. An aversion to teaching (which constitutes a significant part of most faculty workloads) because we perceive our students to be disrespectful is bound to leach into, and undermine, other areas of work, including our research.
Continue reading here.
Are emoticons an effective way to communicate "tone" in a medium where it's easy to misunderstand the author's intent or do they instead reflect a general degradation of writing skills? It depends who you talk to.
Once the shortcut lingo of teenagers, emoticons are becoming more commonplace in the business world although serious writers abhor them according to this article from the New York Times:
Students of digital communication see the emerging acceptance of whimsical signifiers as inevitable, if not always desirable. “They’re part of the degradation of writing skills — grammar, syntax, sentence structure, even penmanship — that come with digital technology,” said Bill Lancaster, a lecturer in communications at Northeastern University in Boston. “Certainly I understand the need for clarity. But language, used properly, is clear on its own.”
Perhaps it’s no surprise, then, that writers and teachers of writing are among the last emoticon holdouts. “I am deeply offended by them,” said Maria McErlane, a British journalist, actress and radio personality on BBC Radio 2. “If anybody on Facebook sends me a message with a little smiley-frowny face or a little sunshine with glasses on them, I will de-friend them. I also de-friend for OMG and LOL. They get no second chance. I find it lazy. Are your words not enough? To use a little picture with sunglasses on it to let you know how you’re feeling is beyond ridiculous.”
Another harsh critic is Michele Farinet, a parent coordinator in an elementary school in Manhattan who spends much of her days answering and responding to e-mails of the (largely professional) body of parents. The whole subject touches a raw nerve.
“To me, it’s like bad moviemaking, where as soon as Dad grabs the puppy, the shot immediately goes to Junior’s teary face — like the director does not trust the audience to have an appropriately developed emotion by itself,” Ms. Farinet wrote in an e-mail. “That’s what emoticons do. PLEASE don’t ‘show’ me that I should be happy-faced or sad-faced or that you are sad-faced or happy-faced.
Continue reading here.
The electronic era continues apace:
The specially designated site will provide instant notification of the online posting of most Supreme Court information, such as orders, new rules, opinions and concurring and dissenting statements written by the justices, according to a press release from the Administrative Office of Pennsylvania Courts.
Anyone can sign-up to receive alerts from the court’s Twitter page, which can be accessed at http://twitter.com/SupremeCtofPA. “Follow Us On Twitter” links also will appear on the state court system’s Web site to take interested parties directly to the page.
Here is an article from The Reporter online.
I am currently reading Thinking Fast and Slow by Daniel Kahneman, which describes how our thinking works. Early in the book he poses the following problem. Try to come up with the answer.
Steve has been described as: "Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail." Is Steve more likely to be a librarian or a farmer?
Most people say librarian because Steve has the stereotypical personality of a librarian. However, the correct answer is farmer because there are twenty times as many male farmers in this country as there are librarians.
Kahneman thinks that this type of incorrect answer is due to a lack of motivation–laziness. On the other hand, those who come up with the correct answer are "engaged." Engaged people" are more alert, more intellectually active, less willing to be satisfied with superficially attractive answers, more skeptical about their intuitions."
Those of us who teach legal writing see this type of problem everyday. Students too often settle for the easy answer without thinking a problem through. We must teach our students to be engaged, to focus on all aspects of a particular problem. We can adopt exercises in Kahneman’s book to legal situations in order to force students to see what they have left out. For example, we can develop a problem on discrimination where the discrimination is obvious and is set out in great detail, but the statute requires at least fifty employees to be applicable with the employer in this case having thirty employees (this part is hidden in the middle of the text). The lazy thinker will probably focus on the sexy, more detailed part, but the engaged thinker will read the entire problem and come up with the correct answer.
SkyTruth, a non-profit environmental company, has launched an interactive map that tracks environmental incidents.
For more information, see this post on DesignTaxi.com.
SkyTruth’s web-based alert system provides daily updates of environmentally-significant incidents, such as water and air pollution, and oil spills.
On the site, details about the incidents would be provided—such as time, date, location, incident type, suspected responsible party, satellite images, aerial photography, investigations, analysis and data reports.
Take a look at the tool here. I think this would be an interesting resource for students studying environmental law.
hat tip Today's Social Media (@todaysocial)
Sunday, October 23, 2011
With the access to so much information on the internet, lawyers and judges are employing sources of authority that extend beyond cases, statutes, and law review articles. Temple Law School Professor Ellie Margolis explores this phenomen in her recent article Authority Without Borders: The World Wide Web and the Delegatization of Law, 41 Seton Hall Law Review 909 (2011). Here is the abstract:
We live in an information age, with massive amounts of information available at our fingertips, thanks to the internet. The last few generations of law students and lawyers, as well as the future generations – the digital natives – have shifted almost entirely to conducting legal research online. This shift to online research has led to a blurring of the once clear delineation between legal and nonlegal materials, and contributed to a broadening of the types of sources used as authority in support of legal analysis. This article will show that the traditional ways of defining legal authority are rooted in a print-based system that no longer exists, and that in the world of online research, it is all too easy to lose track of where a source comes from. The combination of accessibility of information and electronic means of retrieval is erasing the once clear line between the distinct domain of law and the broader world of information. This blurring of the line is reinforced by courts, which are increasingly citing to online, nonlegal sources in support of legal reasoning in judicial opinions. The article documents the ways in which traditional means of identifying authority no longer exist, and calls for a new vocabulary for defining authority that reflects the world that exists today.
This article studied the effect of teacher attractiveness, dressing well and possessing a "likeable" personality on student teaching evaluations. "Looking Good, Teaching Well? Linking Liking,
Looks, and Learning" 34 Teaching of Psychology 5 (2007) by Professors Regan A. R. Gurung and Kristin M. Vespia of the University of Wisconsin, Green Bay.
From the introduction:
Do attractive teachers’ students learn better? Researchers consistently find that people equate beauty with goodness and believe attractive individuals possess numerous positive qualities, but few negative attributes. Attractiveness also contributes to first impressions. Given the speed at which they occur and the resistance of first impressions to change, attractiveness and other personal characteristics may influence perceptions of others, including teachers. Attractiveness is a powerful social tool, but does that mean students learn more from attractive teachers?
A spate of recent publications have addressed this issue of teachers’ attractiveness, perhaps spurred by the popularity of Webbased systems such as which rate instructors not just on how clearly they present material and how helpful they are, but also on physical appearance. A substantial literature links attractiveness to evaluations. Furthermore, students believe instructor attractiveness relates to their educational experience. Students presented with a photograph of an attractive professor believed they would learn more from him or her than students who viewed a picture of an unattractive instructor. These students also recommended the attractive faculty member more highly to others, and they rated the teacher as more willing to provide help and less blameworthy for failing grades.
Other noninstructional factors influence student perceptions of instructors and course evaluations, including instructor warmth, immediacy, likability and reputation. Researchers have also investigated “ideal” instructor characteristics. [Citations omitted] for example, found that students’ ideal professor was accessible, personable, flexible, and explicit about course policies. Variables that make teachers attractive, likable, or ideal may also influence student learning, but few researchers
have evaluated this connection. We decided to conduct a comprehensive assessment of noninstructional factors that may influence learning. We defined noninstructional factors as factors not directly related to the skills of the instructor nor the subject material of the course. The personal characteristics of interest included instructors’ appearance (e.g., attractiveness, formality of dress), likability, and approachability. To assess the role of these noninstructional variables when compared to student behaviors and course design and rigor, we asked students to report on their attendance and participation,perceived course difficulty, and the class format (e.g., amount of lecture used). Challenging courses receive lower evaluations, and difficulty is likely associated with learning. Similarly, research points to the optimal course design for learning as one with multiple formats (i.e., lecture, discussion,
group work) and assignments (i.e., tests, papers.
Although we wanted to know more, in general, about students’ basic perceptions of instructors’ qualities, classroom characteristics, and their behaviors, our core research question concerned the relation between these dimensions and learning. We hypothesized that instructors’ personal qualities (e.g., appearance, approachableness, likability) would positively correlate with and predict student learning. We also expected student (e.g., participation, attendance) and classroom (e.g., diversity of formats) variables to predict learning. Acritical question, however, was what the relative contribution of each of these variables would be.
Hat tip Stephanie West Allen.
Some tech recommendations from the blog Attorney@work:
Attorneys have adopted portable scanners to turn paper that used to weigh pounds into gigabytes that, in total combination, weigh only as much as the device from which they are accessed.
Of course, choosing a scanner is one thing; but, selecting the right scanner is another matter altogether. It is, in most cases, easier and cheaper to buy a wand scanner (like this), or a slim scanner (like this); but, for a busy lawyer, with lots of documents to process, the most effective choice is a business-level device versus a home-use device, meant to scan old family photos, one at a time, of a Sunday afternoon.
Fast batch-scanning, double-side rendering, OCR-ing scanners that reproduce at high quality are the order of the present day for the lawyer about town. These are three top scanners for the law office that meet the referenced requirements:
- Fujitsu ScanSnap S1500 (specs: bundled with Adobe Acrobat; “M” version available for Macs; 20 ppm color; 50-sheet document feeder)
- Kodak ScanMate i1120 (specs: bundled with Nuance PDF; interactive color adjustment; 20 ppm color; 50-sheet document feeder)
- Canon ImageFormula P-150 (specs: bundled with Nuance PDF; Windows and Mac compatible; no plug, powers from computer via USB; 15 ppm; 20-sheet document feeder)
It’s owing to tools like these that the contemporary circuit ride does not any longer follow a barnstorming courthouse, but breaks, rather, whenever and wherever suits the roving, modern-day lawyer
Girls Gone Wild founder Joe Francis was so obstreperous during his deposition in a civil case over a Las Vegas casino gambling debt - refusing to answer even the most innocuous questions on 5th Amendment grounds - that it lead the court to enter summary judgment against him. From the Las Vegas Sun:
Wynn Las Vegas has won a court battle in the case involving the “Girls Gone Wild” founder and a $2 million marker at the Strip casino.
The Nevada Supreme Court on Thursday upheld the summary judgment granted by District Judge Michelle Leavitt, who ruled against Joseph Francis after he lost the money in a trip from Los Angeles in 2007.
After Francis lost the money, the casino made several efforts to collect. It then filed a civil suit, and shortly after it brought a criminal complaint of theft and passing a bad check.
When Francis showed up for his deposition in the civil suit, he invoked his Fifth Amendment right against self-incrimination in refusing to answer most questions, including whether he had been to Nevada, whether he was married, whether he had been to the Wynn and the names of his parents.
When the Wynn filed a motion for a summary judgment, Francis said he wanted to withdraw his Fifth Amendment answers and continue the deposition. Leavitt refused to reopen discovery and told Francis the case was “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen.”
The Nevada Supreme Court said the Wynn produced evidence to show Francis owed the marker. It said Francis failed to produce evidence to the contrary before the district court hearing on the summary judgment.
The court said, “Wynn produced evidence establishing that it did not induce Francis to gamble, alter the casino markers in any way, or engage in any of the activity that Francis alleged in his counterclaim.”
The court said, “Although answering some of Wynn’s questions at his deposition could have been incriminating, his refusal to answer nearly every question was unjustifiable.”
Hat tip to the Lawyerist blog.
Saturday, October 22, 2011
Alternative Dispute Resolution has become a significant method of resolving legal disputes. Because our students will increasingly be working in these nonjudicial fora,they should have at least a basic acquaintance with the practical aspects of arbitration. In a brief article, Miami attorney Jay M. Levy offers helpful advice. As is always the case, a successful strategy requires making planning decisions well before the formal arbitration begins. Here is the link.
Below one of my co-bloggers has posted about the new issue of the JALWD Journal. I would like to focus on one article Linguistic Hooks: Overcoming Adverse Cognitive Stock Structures in Statutory Interpretation by Michael Smith because it combines two of my research interests-- cognitive science and statutory interpretation. This article shows a great depth of understanding of both fields, and it demonstrates that scholarship by legal writing professors can be just as innovative as that by doctrinal scholars. In addition, while it does contain complex analysis, it is of significant practical value because it shows lawyers how to argue difficult statutory issues.
Many issues of statutory interpretation arise due to a cognitive collision between the facts of the case at hand and the mental stock structure implicated by a word or phrase in the applicable statute. Consider, for example, a statute that regulates "chairs". For most people, the stock structure for "chair" would be a mental image of an object with four legs and a backrest designed for one person to sit on. Would this statute apply to benches? How about stools? Or couches? Each of these words conjures up its own stock structure that is close to, yet inconsistent with, the stock structure for "chair". As this simple example illustrates, then, many issues of statutory interpretation arise based on a collision of seemingly incompatible cognitive images. Statutory issues such as these are a consequence of cognitive linguistics: Based on its typical linguistic usage in American English, the word at issue in the statute (like "chair") conjures up a specific cognitive stock structure that is incompatible with the item or concept represented by the current case (like a couch).
These types of statutory issues present unique problems for legal advocates. Generally, legal advocates attempting to resolve issues of statutory ambiguity turn directly to standard tools of statutory interpretation such as legislative history, canons of statutory construction, persuasive judicial precedent, and policy. However, in issues such as these, the statute seems to unambiguously exclude the item or concept under analysis, and courts generally prohibit the use of extrinsic adds of statutory interpretation when the statute is unambiguous on its face. Thus, a legal advocate in these situations faces a threshold linguistic hurdle. The advocate, as an initial matter, must offer a linguistic explanation B a linguistic hook, if you will B that plausibly reconciles the instinctive cognitive collision presented by the statutory issue at hand. Only after the statutory issue is at least plausibly resolved from a linguistic (and cognitive) standpoint can the advocate turn to the other, more conventional, tools of statutory argument.
This article explores some relatively untapped and underappreciated advocacy techniques for overcoming adverse stock structures implicated by statutory language. Specifically, this article explores strategies that enable a legal advocate to evoke B consciously and with design B an alternative and more favorable stock structure that is compatible with both the statutory language and the clients facts. As we will see, these strategies provide advocates with the very linguistic hook that is needed to open the issue up for other, more conventional, forms of statutory analysis. he ultimate goal of this article is to provide legal advocates with potentially powerful new advocacy strategies in issues of statutory interpretation.
Part I of this article explains the theory underlying cognitive stock structures and identifies two distinct forms of statutory ambiguity that stem from stock structures implicated by statutory language. As we will see, only one of these forms of ambiguity presents advocates with the type of linguistic hurdle discussed here. Part II then explores specific strategies by which a legal advocate can attempt to overcome this linguistic hurdle. Part III wraps up the discussion by explaining the relevance and usefulness of these techniques in the general context of statutory advocacy.
This self published book by Ellis Morgan might be a good reference book for law students and lawyers alike.
From the publisher's abstract:
Would you like to be more confident about language, grammar, punctuation and spelling? Do you want to write better emails, letters, leaflets and reports to improve sales, customer satisfaction and internal communications? Writing at Work will boost your writing confidence and get you and your business communicating more successfully. Presented in bite-sized chunks with practical examples, Writing at Work is an A to Z of everything you need to know to polish up your writing skills. There's also a useful List of Everyday Words that will help you banish gobbledegook forever. Plus you'll learn how to: • Find the right tone of voice for your audience. • Get rid of tautologies, jargon and meaningless phrases. • Tackle the important task of proof reading. • Make your documents more accessible. Writing at Work will become the reference handbook you reach for whenever you need help with your writing.
Friday, October 21, 2011
I have just received volume 8 of Legal Communication & Rhetoric: JALWD, the journal of the Association of Legal Writing Directors. The articles look spectacular. Here is the table of contents:
articles & essays
The Power of Rigor: James Madison as a Persuasive Writer
Thomas C. Berg, Julie A. Oseid & Joseph A. Orrino
The Legal Writer's Checklist Manifesto: Book Review
Jennifer Murphy Romig
Think (and Practice) like a Lawyer: Legal Research for the New Millennials
Aliza B. Kaplan & Kathleen Darvil
Judicial Clerkships: A Bibliography
Mary Dunnewold, Beth Honetschlager, & Brenda Tofte
To access the articles electronically, press Control and click on the link.
Thursday, October 20, 2011
These recommendations have been culled from several expert commentators and published by the blog Attorney@work.
- Calvetica is a calendar program that makes it easy to check availability when on the go with zero setup. It allows the user to easily jump to a specific month or day next year with two clicks.
- Noteshelf allows users to create multiple notebooks based on topic or client. It can customize the style of the notebook and the “paper” inside it. It can also save the notebook to PDF and you can email to yourself or others.
- GoodReader is great for reading pleadings, highlighting depositions, reviewing exhibits, and organizing documents.
- Auditorium Notes for iPad is an audio record app for use in note-taking.
- TelePrompt+, as the name implies, is a TelePrompter app that works well for presentations and those speeches you never had enough time to prepare for.
- QuickOffice is a great app for reviewing and editing documents.
For several more suggests, click here.