Marquette University Law School Faculty Blog

One of my students, Drew Walgreen, recommended this article by Bryan A. Garner, published originally in the Michigan Bar Journal.  Bryan Garner, if you haven’t already heard, is a noted legal writing specialist and author who has written books such as Legal Writing in Plain English.  This article focuses on twenty common mistakes lawyers make when editing sentences.  I like that the article gives an example of each mistake and the corrected version.

Each spring semester, when my first-year writing students have moved from objective writing from pre-selected authorities to persuasive writing and doing their own research, I have them keep track of their time. In law practice, time is money.  Even if a lawyer does not bill her hours to a client, she is likely still required to keep track of their time, if only for that organization’s internal purposes. For better or for worse, practicing attorneys must know well each .1 of an hour they work, on what, and for whom.

The time-keeping exercise is designed to provide students practice with billing their time, learning, for example, how to convert, say, twenty minutes of reading cases to .3 of research.  It’s also an exercise designed to give them practice on what kinds of activities to bill. The time spent online looking for case law? Yes.  The writing of the brief?  Of course.  But what about that one-hour meeting with the professor?  Sure.  I’d call that an office conference and lawyers have those all the time. 

After students have finished their first briefs and have turned in their time sheets, I have them reflect on keeping time and ask them what they learned from the exercise. Most students aren’t fond of the exercise, but do recognize its value. One student once asked why I couldn’t ask them to keep track of their time in “normal” increments, like .25, .50, .75, and 1.00. This year, one student responded that keeping time was, for him, incredibly painful.  You see, he said, he has Attention-Deficit, Hyperactivity Disorder (ADHD). Read more »

April is National Poetry Month, which may be Marquette University President Scott R. Pilarz, S.J.’s favorite month.  And for good reason.  Poetry can sometimes say what we can’t; it can touch our hearts and our souls with its inspiration, its longing, its joy, and its sadness.

Last year, on this blog, several of us wrote about poetry, sharing our favorites, composing new poetry in both traditional and different ways, or exploring poetry in and about the law.  As student Gabe Houghton noted this post, there are some judges who compose opinions in verse.

As April closes, I just wanted to remind everyone that poetry should be celebrated all months and remember that there are many kinds of poetry.  Songs can be considered poetry set to music. There are also poetry slams.   My favorite in this last genre is Taylor Mali, teacher and poet.  You can see him perform his poem “Totally like whatever, you know?” here.  It’s a nice reminder for those of us who love language that what we say, as well as how we say it, matters.

Property law – who could forget the Rule Against Perpetuities, fee simple, remainders or Blackacre from your second semester at Marquette Law? For me, it made me seriously question my abilities to reason through complex issues. For my sister, who practices Trusts and Estates law, it is her way of life.

But that second semester, the opportunity to apply the principles of property law became my reality. It seemed every semester I slogged through law school, I had a personal or business crisis that overlapped with my studies. We used arbitration to resolve a breach of contract during a commercial building project. We used an LLC formed by our neighbors to contend with an eminent domain issue, when the utility company condemned and forever marred our property with a gas line. And most interesting of all, we used property law and many other legal principles to deal with a business purchase.

As a foundation for this, let me explain the rest of my professional life. I graduated from Iowa State’s Veterinary School in 1981 and have run my own small animal veterinary practice in rural Wisconsin, one hour north of Milwaukee, since then. After 25 years out of the classroom, I had the itch to go back to school, for the opportunity to have a second career, and because I missed the energy of being in an academic setting.

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I had my “eureka” moment about appellate advocacy when I was still a law student. With too few credits to even apply for the Milwaukee District Attorney’s “prosecutor clinic,” I still made an appointment to meet with a deputy DA to see if there was some way I could still volunteer and be useful.

I was stashed aside in a room with a table, lots of books and stacks of papers to wait for the meeting, but as I waited my eye was drawn to a slip opinion sitting on the table. I started to read, of course. The case, as I recall, had something to do with how much Spanish language interpretation was due to a defendant at a particular point in the process. I never got to the end of the opinion, so I don’t know how it turned out.

But I remember feeling the light turn on in my head, recognizing in an instant that this was an area of the law where, if you believed passionately in something and gave it your all in the higher courts, win or lose, your words and your efforts had a resonance beyond just a single case.

Of course, at that time I don’t think I even realized that there was a difference between “published” and “unpublished” opinions. Too late now, the fuse was lit! Read more »

The 20th Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held this Friday, February 15, 2013 at the Law School. Proceeds from the event go to support PILS Fellowships to enable Marquette law students to do public interest work in the summer. Mindy Nolan, a current law student, shares her experience here as a PILS Fellow.  Besides her work as a PILS Fellow, Mindy did outstanding work in soliciting and compiling donations for this year’s auction.

Where did you work as a PILS Fellow?

This past summer I served as a law intern at the Wisconsin State Public Defender’s Office in Rhinelander, Wisconsin.

What kind of work did you do there?

In my role there, I prepared legal memoranda, motions, and conducted research for the four Assistant State Public Defenders working in that office. I conducted client and witness interviews over the phone and in person at the county jails. I also attended court hearings in three northern Wisconsin counties.

How was the experience meaningful to you?

This experience was extremely meaningful to me for several reasons, in particular the amount that I learned about the everyday workings of the criminal justice system. It was interesting to witness the dynamic of how the criminal justice system interacted with the three Native American tribes that are located in the three counties. It was also meaningful to see how the criminal justice system itself functions in three very small counties where there would sometimes only be one judge, one prosecutor, and one public defender working together day in and day out.

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In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.

The 20th Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held on February 15, 2013 at the Law School. Proceeds from the event go to support PILS Fellowships to enable Marquette law students to do public interest work in the summer. Kelli Nagel, a current law student, shares her experience here as a PILS Fellow.

Where did you work as a PILS Fellow?

This past summer, I worked in the Consular section of the U.S. Embassy in Mexico City.

What kind of work did you do there?

In my role there, I had many diverse experiences. In the non-immigrant visa section, I helped process the over 2,000 individuals who visit the Embassy daily for visa interviews. I spent some time in the American Citizen Services section visiting U.S. citizens incarcerated in Mexico. And for the majority of my internship, I worked in the Fraud Prevention Unit conducting an investigation on the human trafficking of women and children between Tlaxcala, Mexico and various cities throughout the U.S. and Mexico.

How was the experience meaningful to you?

This experience was the fulfillment of a dream I had from when I studied abroad in Mexico as an undergraduate student in 2008. At that time, the U.S. Embassy came to visit American students at our university. One of the Foreign Service Officers told our group of students that the State Department was a great place to work, and I thought “I want to try that.”

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The 20th Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held on February 15, 2013 at the Law School. Proceeds from the event go to support PILS Fellowships to enable Marquette law students to do public interest work in the summer. Maria Lopez, a current law student, shares her experience here as a PILS Fellow.

Where did you work as a PILS Fellow?

I interned with the Illinois Migrant Legal Assistance Project (IMLAP) at their office in Rantoul, Illinois.

What kind of work did you do there?

IMLAP’s mission is to advocate on behalf migrant agricultural workers and educate them on their rights as workers. My duties included outreach to workers at their housing or work sites, collaboration with local agencies such as Migrant Head Start and the Department of Human Services, and meeting with employers on behalf of our clients.

How was the experience meaningful to you?

My experience with IMLAP was meaningful because it provided me with an opportunity to work closely with great people–not only my clients, but also my supervisors and coworkers, as well as other agency representatives, all of whom were very supportive.

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First, I would like to thank Marquette University Law School for the privilege of serving as the Alumni Blogger of the Month. Second, I would ask that readers of my posts please note that my submissions are my personal thoughts and opinions (unless otherwise indicated) and do not necessarily represent the views of the Wisconsin National Guard or the U.S. Armed Forces.

I will now begin the more substantive portion of my post.

In September 2011, I received mobilization orders to deploy as a member of the 157th Maneuver Enhancement Brigade (MEB). The MEB is located in Milwaukee. After approximately two months of training at Camp Atterbury, Indiana and Hohenfels, Germany, the MEB embarked on a NATO Peace Keeping mission serving as KFOR (Kosovo Force) 15. More specifically, the MEB served as the command element of Multi-National Battle Group-East. Read more »

As most students at Eckstein are frantically and diligently studying to ensure we put forth our best efforts during this finals period, I can’t help but think about the certain “presumptions” built into our institution of law. Numerous assumptions and presumptions are used in many different areas of law, but they seem to be accentuated when looking at the Federal Rules of Evidence.

Let’s look at Federal Rule 801 2(b), for instance. Is it really true that a failure to respond makes for an adopted admission? Those who have had, or have, a significant other: have you ever been silent to an assertion made by your significant other? I’m assuming that, like me, you remained silent not because you wanted to tacitly give your approval of the assertion, but rather because you wanted to save the feelings of your significant other, or eliminate a needless argument. I am aware that most things that end up in court may not be so trivial, but nevertheless this example popped into my head rather quickly without much thought. I am sure that the same could be said for many others, and it is the basis of the presumption in general I find unreliable.

Let’s turn to another presumption by looking at Federal Rule 804(b)(2), the “Dying Declaration.”   Read more »

Many law firm shingles still read “Attorneys and Counselors at Law.”  Each term carries with it a distinct meaning and independent importance in the legal profession.  Do we risk marginalizing the counselor role as we strive to achieve efficiencies in the delivery of legal services through specialization?  And if so, why does it matter?

Lawyers are trained to analyze the law and to prepare legal documents; however, in order to provide effective legal advice, and in order to exercise their highest and best use in our justice system, lawyers must possess much more than technical knowledge and skills.  Lawyers must also be able to fulfill their roles as counselors.  This requires that they be able to craft creative solutions, sustain client morale during difficult times, and to offer wisdom and sound judgment, not just knowledge.  (See, e.g., Anthony L. Cochran, They Don’t Call Us “Counselor” For Nothing.) Read more »