The Importance of Document Design

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Jim Dimitri’s article, WordWise:  Best Practices in Document Design, is a must read for any lawyer interested in taking advantage of document design in drafting legal documents. Dimitri advises that a writer should “use the most readable font” and “use effective vertical and horizontal spacing” in designing a legal document. Dimitri’s article is useful not only for the advice he gives, but because he defines key concepts in document design, such as monospaced fonts (which “use the same width for each letter”) and proportionally spaced fonts (which use “different widths for different letters”). Dimitri suggests that a writer use proportionally spaced fonts because they are easier to read.

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Cut It Out

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EditingKnow how and when to cut words from your sentences during the editing process?  Here are some links to help.

Bryan Garner’s April 2014 ABA Journal magazine article provides a good list of unnecessary phrases.  Garner recommends “axing” words like “herein” from legal documents.

WordRake is an editing program that allows you to upload a document and receive line edits on concision and clarity.  This blog tested the program on some sample Supreme Court authority with favorable results.  Also check out the WordRake blog for editing advice.

One easy starting point for editing is to look for and eliminate “there is” and “it is” from your sentences.  These phrases add meaningless fluff at the most important point of a sentence—the beginning—and often signal the passive voice and nominalizations.  This blog suggests ways to streamline your writing by eliminating “there is” and “it is” (or the past tense version) or phrases like “given the fact that” or “in light of the fact that.”

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Storytelling for Lawyers

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An excellent primer on narrative theory for lawyer-storytellers has now appeared. I refer to Philip N. Meyer’s recently published Storytelling for Lawyers (Oxford University Press, 2014), which is available in Kindle, hardcover and paperback versions.

Meyer convincingly makes the point that much of what lawyers do is storytelling. Whether they are presenting cases in the courtroom or representing clients in contract negotiations, lawyers tell stories. Furthermore, a lawyer’s success depends to a surprising extent on his or her skills as a storyteller.

Meyer suggests lawyers’ stories are relatively straightforward and more like those in Hollywood movies than those in literary novels. However, all stories—simple or complex—include a setting, characters, a plot, a point of view, and a narrative voice. Meyer demonstrates how conscious attention to each of these components can improve a story.

I found especially interesting Meyer’s observation that careful crafting of a story’s beginning greatly improves the likelihood of a story’s conclusion being effective and convincing. He illustrates this point with insightful commentaries on the closing arguments offered by Jeremiah Donovan on behalf of Louis Failla and Gerry Spence on behalf of Karen Silkwood.

Overall, Meyer’s book is a great story about lawyers telling stories. He brings his lawyer-storytellers to life and critiques their narrative efforts with great delight. I welcomed his reminder that the best lawyers can be and are artists.

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The Problem of Having Really Good Plaintiff Cases

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If you handle plaintiff cases your dreams are of what I call the “Holy Trinity” cases: Great Liability, Big Damages, and a Well Insured Deep Pocket Defendant. And, even better, you would think, is one after another of those cases. But, as they say, in every silver lining there is a black cloud.

A recent three-week trial provides lessons for long-term career development for trial lawyers principally handling cases for plaintiffs. Since my practice consists of two-thirds defense and one-third plaintiffs (including one nine figure verdict for a plaintiff) I can give you a view from both sides of the “v”. In this case I happened to be defending.

The injuries were initially catastrophic with the plaintiff having “died” (a bit of exaggeration by plaintiff’s counsel in opening statement, but nonetheless she did have a very low pulse and respiration rate) in the ambulance to the hospital. She had been crushed between my client’s semi-tractor trailer and a stopped car in a sorority car wash taking place in a shopping center parking lot. “Squished” was plaintiff’s counsel favorite word in the trial.

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“The King’s Speech” and Trying Cases

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The King's Speech

“The movie “The King’s Speech” is the story of . . . .”

How do I begin to tell you what it is about?

Do I:

give you the history of which King of England is the subject of the movie, or

tell you it is about a speech problem he had and the unique relationship that he and a speech therapist (who had no credentials) developed to mitigate the problem, or

tell you about the likely problems that caused his stammering or the relationship this has to his brother who abdicated the throne to marry Mrs. Simpson?

With mountains of information, visuals, and audio recordings available, how does an author or screen writer:

pick and choose what tells the story best,

order it in an understandable fashion, and

tell the core of the story (in this case, the character and relationship of a King and a commoner and a speech impediment) in a fashion that connects to the viewer?

With mountains of discovery, investigative reports, photos and video available how does a trial attorney:

pick and choose what tells the story best,

order it in an understandable fashion,

and tell the core of the story (in our cases, how the accident or event occurred, the contract breached or employment wrongfully terminated and the damages that were caused and who is responsible) in a fashion that connects to the juror?

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Winning & Losing in the Courtroom: It’s Not the Same X + Y + Z You Did in the Last Trial

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Ric Gass

WINNING & LOSING IN THE COURTROOM

IT’S NOT DOING THE SAME X + Y + Z YOU DID IN THE LAST TRIAL

FIGURING OUT WHY YOU WON OR LOST
IS WHAT WILL MAKE YOU A “GO TO” LAWYER

For trial lawyers who really try cases it’s not just how many cases you’ve tried, won, or lost. It’s not how high your IQ is or how smart or intelligent you are. It’s how much understanding you have of why you “won” or “lost” and of how you tried the case and why the jury found the way it did.

I started my trial career a long time ago in a galaxy far far away. It was a time when young lawyers could and did go to trial virtually every week and sometimes twice a week. The firm I was with at that time had as clients the municipal bus company (on a retainer so the more cases they tried the better from the client’s standpoint), three taxi cab companies and a slew of carriers with lots of subrogation work.

The firm had two “rules” relative to trials: first, win, lose or draw you shook hands with the opposing counsel after the verdict (and if you won you did not strut, crow or rub it in). Second, you called all the jurors afterwards or talked to them in the courtroom and found out what they thought about the case, you, and your presentation: again win, lose or draw. That could be exhilarating, humbling or instructive. It made some heads swell out of proportion to what they did versus what the facts did or what the investigators had done. It was instructive, but it also had the potential to be misleading.

What was never made really clear to me was that you may have won or lost not because of single thing you did or didn’t do, but rather because of the facts you were dealt or because of what the investigator did in working up the case, or some other wild card, the makeup of the jury for instance. So if you won and you did x, y, & z, and your level of understanding was that win = x + y + z, you could be sadly mistaken not only for the next trial, but more importantly, you would not have “grown” as a trial lawyer.

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Deposition Weirdness

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Photocopiers

If you haven’t yet watched this reenactment of a deposition segment about the meaning of the word “photocopier” on the New York Times website, you should.  The New York Times summarizes the lawsuit in which the deposition was taken as follows:

In 2010, the Cuyahoga County Recorder’s Office in Ohio changed their policy about copying records. Digital files would no longer be available, and the public would have to make hard copies of documents for $2 per page.  This would prove to be prohibitively expensive for Data Trace Information Services and Property Insight, companies that collect hundreds of pages of this public information each week.  They sued the Recorder’s Office for access to digital versions of the documents on a CD.  In the middle of the case, a lawyer representing them questioned the IT administrator of the Recorder’s Office, which led to a 10-page argument over the semantics of photocopiers.

The deposition segment starts with a question about whether the Recorder’s Office used “photocopying machines – any photocopying machine?”  The deponent attempts to turn the table: “When you say photocopying machine, what do you mean?”  The ensuing dialogue would not be out of place in an absurdist play. Read more »

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Federal Courts App

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The Federal Courts app provides access to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Evidence, and all the local rules, as well as PACER.  The app is now available for Android, iPhone, and iPad from KosInteractive, which also has state court apps (but not yet apparently for Wisconsin).

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Pro Bono and Public Interest Legal Work at Marquette

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Friday was the 2014 Posner Exchange and Pro Bono Society Induction at the Law School.  The event honors law students who have achieved 50 or more hours of pro bono service while attending law school.  Special recognition is given to students who have achieved 120 or more hours. The Hon. Ramona E. Romero, the general counsel of the United States Department of Agriculture, was the speaker at this year’s event.  Congratulations to the honorees for starting their careers by including pro bono service in their work.

Recently I attended a panel presentation at the Law School on pro bono opportunities available to our law students.  I was so impressed by the opportunities that I am highlighting them here.  To qualify as pro bono, the work must be supervised by a licensed attorney, not for pay or credit, primarily legal in nature, and in the service of underserved populations–those with barriers to equal access to justice, or for an organization whose mission is to serve underserved populations.

Students gain valuable experience in client interviewing skills and accessing and completing forms, two practical skills that are difficult to convey in a classroom setting. Pro bono also gives students exposure to a variety of practice areas and opportunity to work alongside and be mentored by a cadre of more than 250 volunteer attorneys.

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21st Annual Howard B. Eisenberg Do-Gooders’ Auction–An Interview with PILS Fellow Patrick Winter

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Patrick WinterThe 21st Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held in the evening on Friday, February 21, 2014 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.  Patrick Winter, a current law student, shares his experience here as a PILS Fellow.  Besides his work as a PILS Fellow, Patrick is helping to organize this year’s Auction.

You may attend the Auction by purchasing tickets here, or you may purhcase tickets at the door.  This link also provides you with an option to donate to the Auction.

Where did you work as a PILS Fellow?

I worked for the U.S. State Department, at the U.S. Mission to the United Nations in New York.

What kind of work did you do there?

I worked with the U.S. policy negotiation teams for the Middle East and East Africa to forward U.S. policy on issues pertaining to Syria, South Sudan, Somalia, and the Democratic Republic of the Congo. I attended UN Security Council proceedings as well as bilateral and multilateral negotiations with other UNSC Member States, and prepared briefing memorandums for senior U.S. government officers on issues arising in the Council. Much of my work involved operational issues with peacekeeping operations, as well as topics on the protection of women and children in armed conflict zones, and UN mandated country-specific sanctions. I received reports from peacekeeping operations abroad, created diplomatic cables on current progress and setbacks in conflict zones, and prepared reports on legal issues pertaining to regulatory sanctions imposed by the UN and the United States.

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21st Howard B. Eisenberg Do-Gooders’ Auction–An Interview with PILS Fellow Trisha Fritz

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Trisha FritzThe 21st Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held in the evening on Friday, February 21, 2014 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.  Trisha Fritz, a current law student, shares her experience here as a PILS Fellow.  Besides her work as a PILS Fellow, Trisha is helping to organize this year’s Auction.

You may attend the Auction by purchasing tickets here, or you may purchase tickets at the door.  This link also provides you with an option to donate to the Auction.

Where did you work as a PILS Fellow?

I worked at the Milwaukee County Public Defender’s Office in the Juvenile and Mental Health Office located in Wauwatosa.

What kind of work did you do there?

I mainly worked with Juveniles involved in Juvenile Delinquency cases. The office also handles CHIPS, TPR, JIPS, and Mental Health Commitment cases, and I was able to dapple in those areas, but I mainly worked with Delinquency cases. All of the Juveniles that come through the delinquency system have a state public defender assigned to their case. My role was to interview clients and families and continue to handle their cases at various stages through the criminal process. I was able to practice under the student practice rule where I was able to handle all delinquency hearings from the initial detention hearing to disposition hearing (sentencing in the juvenile system).

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21st Howard B. Eisenberg Do-Gooders’ Auction–An Interview with PILS Fellow Zachariah Fudge

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Zach FudgeThe 21st Annual Howard B. Eisenberg Do-Gooders’ Auction on behalf of the Law School’s Public Interest Law Society (PILS) will be held in the evening on Friday, February 21, 2014 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. Zachariah Fudge, a current law student, shares his experience here as a PILS Fellow.  Besides his work as a PILS Fellow, Zachariah is active on the PILS student board.

You may attend the Auction by purchasing tickets here or you may purchase tickets at the door.  This link also provides you with an opportunity to donate to the Auction.

Where did you work as a PILS Fellow?

This past summer I was a legal intern at the Alternate Public Defender’s Office in San Diego.

What kind of work did you do there?

The Alternate Public Defender took on felony cases where there was a conflict with the main Public Defender’s Office, so our cases were usually more complex, multi-defendant affairs. I was able to do quite a bit over the course of my brief tenure, including conducting client and witness interviews, researching, drafting motions, and representing clients during various types of hearings. I was able to second chair a ten-day trial that ended in the dismissal of all charges, so that was exciting.

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