The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4^th District, 2^nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages.  According to the California court’s website, many parties simply agree to cancel oral argument after seeing the tentative opinion.  Even if oral argument proceeds, it is much more focused because counsel are well aware of how the judges are thinking about the case and which issues are most important.  Less frequently, counsel may even notice errors in the tentative opinion’s discussion of the underlying law or facts, and use the oral argument to correct them.

If the first point is true, the practice seemingly amounts to suppression of oral arguments that would otherwise occur.  I am sympathetic to but not persuaded by the accompanying claim that this outcome may save time for the courts and money for the litigants.  I still believe there is significant value in oral argument.  Some of the reasons are obvious.  In a few cases, the panel really will be on the knife’s edge of indecision because the case is so close.  In other cases, the argument allows the litigants to correct any misimpressions of the governing facts or law made by harried judges or law clerks before they are set in ink.  If an opinion, however tentative, has already been issued, it seems to me that judges will be more defensive about its perceived weak points.

Oral argument also allows the panel to “argue” to one another by asking leading questions and thus ensuring that certain points will be stressed to their colleagues.  Speaking as a former law clerk on an appellate court, I think litigants should not underestimate the importance of this point.  Advocates always ready themselves for the hard questions, but don’t do enough to run with “softball” questions that will almost inevitably come.   In the very close cases, members of the panel often are forced to become advocates for one side or the other in the judicial conference room.

Finally, I think there is an intrinsic and cathartic value in telling the appellate court why the lower court got it wrong.  In my experience, this holds true both for lawyers (directly) and the clients they represent (vicariously).  When citizens see that the nation’s highest courts allow litigants to tell their stories and correct mistakes, it can provide a much-needed boost to public confidence in the judiciary and the judicial system.

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

Similarly, when a lawyer’s online activity belies what he’s told his superiors or the court, trouble can follow.  According to the New York Times article, a lawyer asked a judge for trial delay because there was a death in his family.  The judge granted the delay, but noticed on the lawyer’s Facebook page that while there was indeed a death in the family, there were also a number of posts by the lawyer about partying and motorbiking.  When the lawyer asked for a second delay, the judge denied his request and notified his firm.  Repercussions for such conduct may be not only the loss of one’s job, as it might be for others in society, but also fines and discipline by the state’s board of bar examiners or other office of lawyer regulation.  In fact, some lawyer licensing organizations are considering or adopting policies whereby they examine applicants’ social networking sites as part of the licensing process.    

This topic, which can be broadly categorized as the professionalism of the younger generation of lawyers, is a topic that is often talked about in the legal academy, particularly among those of us who teach legal skills.  Our students are of a generation that has grown up with email and the Internet, with reality television shows, and a penchant for revealing to the public their personal lives and thoughts. 

However, most practicing lawyers grew up in generations that emphasized a certain formality of one’s conduct, and law has always been a more conservative profession than most.  The influx of a younger, more open generation into the profession means that there will inevitably be a difference in how each defines what it means to be a professional.  A younger lawyer would likely see nothing unprofessional with posting a rant about the partners at his firm, especially if he doesn’t expressly name them (e.g., “Suffered through a two-hour meeting today with the boring partner and the a-hole partner.”), whereas an older lawyer, who may think the exact same thing, would find such a public disclosure wholly unprofessional. 

 There are, I believe, positive aspects of social networking.  When life is so hectic, it’s nice to quickly catch up with family and friends all over the country by checking status updates on Facebook.  But not everything that goes on with my family and friends is something that I want to know – or think I should know.  There comes a point when what’s posted is too much information (TMI).  And most of the time, TMI often translates into “unprofessional,” especially if you’re a lawyer or lawyer-to-be.

Truth be told, it’s not easy to keep client service in mind.  We think of ourselves as practitioners of the law–and we are–and we often want to do things in the way we see as “right” or interesting or novel. When I say “right” I’m talking about your professional opinion about the way things ought to be done, not an ethical or moral rectitude. But sometimes our clients don’t want or need things done the way you or I think they ought to be done. Sometimes clients want interesting or novel thinking, and sometimes they don’t. That’s when it can be difficult to remember that your job is to serve your client and not simply to practice law by your own lights.

Consider a poignant example. I recently sat in a room with one of my company’s outside counsel who is handling a large litigation for us.  She enjoyed telling me the story about defending one of her first big cases in which damages to her client could have been in the range of several tens of millions of dollars. The case settled for closer to ten million, and her client celebrated the result. She thought the client had gone insane: who celebrates losing ten million dollars, and not clearing their good name in court to boot?  But her feelings demonstrate the disconnect between a then-less-seasoned attorney and her client. She wanted to try the case and score a “win”; the client wanted to minimize risk and expense, and believed that settling the case for a fraction of the potential damages was the way to achieve that goal.  She did not have a good understanding of her client’s view of the world, nor of her client’s goals at the time.  If she had, she would have celebrated the “win” with the client rather than doubting the client’s sanity. 

Talk to your clients. Understand their goals. Discuss various ways to achieve those goals. Realize that your client may desire a result or a way of getting to that result that is not what you would have chosen. Then go out and deliver what your client asked for. You’ll find this to be a successful  business model (gasp!).  Lawyers are notoriously bad business persons, but at a minimum we should be good listeners. And if listening leads to action and good communication between you and your client, you’ll find that your legal practice is ultimately more successful and more fulfilling. If you don’t listen to your clients, you may find that you don’t have much law to practice.

This is not to suggest that you should avoid communicating frankly with your clients when their expectations are out of whack. Quite the opposite. You are the professional, and the subject matter expert. But sometimes clients tell us their goals and we go right to the list of reasons why those goals can’t be achieved. Before you do that, take a moment to think outside of the box. Can you do something differently, or approach the problem in a different way, in order to deliver results for your client?  Talk it over; think it over; be creative and thoughtful. And once you’ve looked at the problem from all sides, communicate with your client about realistic expectations.

One final thought on client service: win the easy ones (as a certain Marquette University Law School Dean likes to say). If your client has a deadline, meet it. If your client wants the work product to be in a certain form, make it so. If your client wants to be updated on a specific schedule, then update them accordingly. You’d be surprised–or perhaps you wouldn’t–how many lawyers fail miserably at these very simple tasks. When you can’t deliver on these basic requests, when clearly communicated to you by your client, why should anyone think that you can deliver good work on more complicated tasks?  Win the easy ones and you’re 90% of the way towards making your clients happy.  Remember, lawyers provide service, we don’t just practice law. Act accordingly.

In theory, this may be true, and perhaps large clients (as in those who spend enormous sums of money with their law firms on an annual basis) have put some of this theory into practice.  But I’m not so convinced that the billable hour has earned its demise quite yet.  For one thing I work as in house counsel at a Fortune 1000 company and I see very few alternative billing arrangements.  (For another, I used to work at a big law firm that also saw few alternative billing arrangements.)  That is due in part to our own taste for risk.  After all, alternative billing arrangements must incentivize both parties, meaning the client may end up paying more for a given set of services than it otherwise would have under a billable hour system.

For instance, if I hire an outside lawyer to handle a litigation for my company and the lawyer agrees to take the engagement on a flat-fee basis, both my lawyer and I take on risk.  She bears the risk of cost-overruns (i.e. performing the work less efficiently than she anticipated).  I bear the risk that the litigation will turn out in such a way that it would have been cheaper for me to pay by the hour (e.g. a good settlement opportunity arises early in the case).  It is the latter risk that causes some clients to balk at the idea of alternative billing in some cases.

I may be overstating the case a bit.  I’m not personally afraid of the risk that my lawyer will work more efficiently and, as a result, make more profit.  In fact, I’m glad to see it because we’ve aligned our incentives–I get my lawyers behaving how I want them to behave (staffing cases leanly, working efficiently, focusing on lawyering and letting non-lawyers perform non-lawyer tasks), and my lawyers get to earn more money and act more like lawyers, instead of churning out billable hours on menial tasks that don’t require a law degree, or perhaps even a college degree.  But I know other in-house lawyers who are afraid of the risk that the current iterations of alternative billing arrangements just misalign incentives in other ways and create the risk that they’ll pay more than they would have under a billable-hour system.

The problem is viewing the lawyer-client relationship (or any relationship for that matter, if you’ll briefly indulge my pontification) as a zero-sum game.  It is not about making sure that the client wins and the lawyer suffers; although after years on end of the billable hour system, I assure you that is how some clients feel.

Instead, alternative billing arrangements will work when lawyer and client understand that both must benefit from the arrangement.  Clients can cap their exposure and create predictability for their business people, which is all most clients are after, and lawyers can stop writing down what they’re doing every minute of the day, focus on turning over the right stones instead of all the stones, and earn a good living doing it, while also sharing the risk with the client that lawsuits and legal transactions don’t always go as planned.

Until clients and lawyers figure out how to align their incentives–not an easy task–and accept that their financial relationship is not a zero-sum game, the billable hour is not going away.

Don’t get me wrong.  I’m not saying I don’t want the billable hour to go away, both for my lawyers’ sake and my own.  But I don’t believe it will anytime soon.  Inertia is a powerful force, and, as Donald Rumsfeld might say, unknown unknowns are more frightening than known unknowns.

While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures.  It is, as one text notes, law school’s “signature pedagogy.”  It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.

And students learn.  They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.”  Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.”  This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.

For all of the successes of the Socratic method, some have argued that it has serious flaws.  Most recently, Professor Elizabeth Mertz has criticized the Socratic method because of its “acontextual context.”  She notes that the Socratic method virtually ignores morality and social context in its attempt to teach students “objective” analysis.

Most lawyers will readily agree that to “think like a lawyer” is to think differently than others.    For some, this is unsettling because the rational, analytical processes one gains while learning to “think like a lawyer” can make them feel that their core values are being challenged or even changed.  Professor Lawrence Krieger, in his pamphlet “The Hidden Sources of Law School Stress,” says that “[i]f you begin to ignore your sense of right and wrong . . . in order to rationalize any possible outcome, you will dampen the ideals and values that brought you to law school in the first place.”  This loss of connectedness to one’s long-held personal beliefs affects one’s sense of self.

This shift in thinking can also mean a shift in the law student or lawyer’s personal relationships.  Several years ago, Marquette Law School alumnus Steven Radke was asked to give remarks at a reception during Orientation.  Among the many wise things Radke said was this:  “Over the next few years, you will develop a highly tuned ability to make distinctions that do not make a difference to most people, a capacity to see ambiguity where others see things as crystal clear, and an ability to see issues from all sides.  You will be able to artfully manipulate facts and sharply and persuasively argue any point. . . . [But] your spouse is not the appropriate person on whom you should practice any of these skills.”  For that matter, neither are parents, children, and friends who themselves are not lawyers.  I will never forget a classmate of mine telling a story about her mother, a lawyer, who once spent a long day in depositions.  The mother asked my classmate, then a girl six or seven, I believe, how her day at school was.  My classmate’s response was the kind of simple, non-detailed answer children are apt to give.  The mother said, “That answer is non-responsive to the question.”

It is good to remember, as Professor Lawrence Krieger says, that to think like a lawyer is “a legal skill but not a life skill.” It can be hard not to bring to our daily life situations the same thought processes in which we have been inculcated and with which we earn our living.  In fact, it probably requires as much discipline as we used in learning those processes, if not more.  I can think of innumerable occasions when I have been told by people close to me that I was “using that lawyer-speak again.”  And they weren’t meaning that as a compliment.

Then-Assistant Dean Meg Gaines once wrote in a student newsletter when I was a law student at the University of Wisconsin – Madison that “law school trains us to stay in our heads – in our rational minds.”  But, she added, “good relationships necessitate a broader consciousness,” and it was “integrating . . . our whole selves” that made us “better professionals and better people.”  I remember that newsletter article well, and I remember where I was standing in the law school when I first read it.  I can’t say that I have always been able to put aside the “lawyer-speak” and “lawyer think” when I have interacted with people close to me.  But with each new group of nervous but enthusiastic 1Ls in the fall, coming to my class in the very early stages of their legal training, I am reminded that it is important not to let that legal skill of “thinking like a lawyer” become a life skill.

Gould explains how both of these stories have often been patterned into the form of a canonical story.  In the Alamo story, the canon focuses on the Alamo defenders’ valor and honorable death.  William B. Travis, a young commander at the Alamo, wrote a letter describing the siege, which ends with the phrase “VICTORY OR DEATH.”  (60)  This famous letter is often cited in Alamo legend, but Gould points out that Bowie also wrote a letter, which fails to get mentioned because it does not fit with the canon.  (60)  He goes so far as to say Bowie’s letter is “hidden in plain” sight, ignored in a glass case at the Alamo museum.  (60-61)  Bowie thought that Santa Anna was willing to negotiate, and he wrote in Spanish to Santa Anna asking whether Santa Anna had called for a parley.  (61-62)  Santa Anna responded that he would have no mercy without unconditional surrender.  (62)

Gould then surmises that even with this response, had Bowie been less ill, “some honorable solution would eventually have emerged through private negotiations” because Santa Anna and Bowie were seasoned battle veterans.  (62-63) 

Gould thinks this letter gets ignored because it reflects Bowie’s attempt to find a sensible alternate solution with less bloodshed, instead of promoting the canon of the defenders’ valor and honorable death.  (63)

In the Bill Buckner story, the stage is set with “the curse of the Bambino.”  (63)  The Red Sox had been losing World Series championships throughout the decades.  (64)  In 1986, however, it seemed like luck was changing for the Red Sox.  They were up three games to two going into game six — which meant that if they won game six, they would win the series.  The Red Sox led by two going into the last inning.  (64)  With the Mets at bat and two outs, the Mets managed to tie up the game.  (64)  At the fateful moment for Bill Buckner, Mookie Wilson from the Mets hit a ground ball that bounced through Buckner’s legs, bringing in the winning run.  (64-65)  The Mets went on to win game seven, continuing the curse of the Bambino.  (65)  The canon generally pins the World Series loss on Bill Buckner as a “but for” situation:  but for Bill Buckner’s mistake, the Red Sox would have won the series.  (66)  However, the Red Sox had other opportunities — after all, they could have won game seven. 

Gould uses these stories to illustrate how canonical stories can ignore or misstate key facts.  Adherence to canonical stories in science can cause problems because scientists may try to fit evidence into a preferred storyline, instead of allowing the evidence to speak for itself. 

This same point applies in legal advocacy.  On one hand, it’s crucial to create a strong theory of the case and to create a compelling story.  But one has to be cautious at all points in the litigation process of creating a canonical story that fails to incorporate or address key pieces of evidence.  One place where this pitfall can happen is in discovery.  An engaged lawyer should constantly be sorting through the evidence, trying to create a cohesive story.  If a fact does not seem to fit, however, it is important to keep that fact in the forefront, not to forget about it.  A lawyer also has to obey the ethics rules regarding the representation of facts.  As the story officially emerges in the pretrial and trial stages of the case, a lawyer needs to be mindful that the other side will always be ready to point out the adverse facts.  It’s best to have a strategy to deal with adverse facts.

In her article, Professor Robbins suggests that archetypes, as universally recognized symbols, can be used to create a compelling image of a client.  As Professor Robbins states, “Because people respond — instinctively and intuitively — to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients’ goals by subtly portraying their individual clients as heroes on a particular life path.”  (768-69.)  The key to using archetypes is to tap into a judge or jury’s unconscious to align the client’s story with a hero’s transformative journey. 

How do you put your client on the path of a hero’s journey? 

The first step is to assign a “cast of characters,” and the most important roles are that of the judge (or jury) and the client.  (775.)  Through the story you tell of your client, the client will transform him or herself into a hero.  The benefit of telling a client’s story as a hero’s journey is that heroes, like real life clients, have flaws.  Heroes are not perfect; in fact, what makes the story compelling is that the hero must work through or conquer those flaws.    

The article lists and describes twelve different hero archetypes from which to choose, such as a “caregiver” (caring for a family against all odds), or an “every person/orphan” (searching for an identity).  (778.)  Professor Robbins recommends casting a judge as the hero’s mentor.  In archetypal stories, a hero like Harry Potter or Frodo Baggins needs a mentor like Dumbledore or Gandalf.  The article also explains how to cast other characters or identity traits such as the villain (not necessarily the opposing party, Professor Robbins notes) and the guardian.

Besides casting the characters, a lawyer needs to understand the stages of an archetypal hero’s journey:  the departure, the initiation, and the return.  The departure is the start of the quest with a “road of trials.”  (792-93.)  Departure reminds me of Frodo Baggins’ trek to the town of Bree, where he first encounters a Ringwraith.  During the initiation, a hero learns lessons to help him or her “to reach the ultimate goal.”  (795.)  During this phase, the hero faces his or her fears and finally slays the proverbial “dragon.”  Those hearing the story of initiation are reminded of their own mortality in the hero’s “ritual injury or dismemberment.”  (796.)  In the return, the hero is transformed and “achieves bliss” — “the hero has conquered the fears that previously hindered him or her from growth as an individual.”  (800.)

The hero’s journey can work very well with the traditional concept of building a theory of the case.  The theory of a case melds narrative/storytelling with the law to create a cohesive case presentation.  The hero’s journey strengthens the narrative component of a case.  Has anyone tried to use a hero’s journey in developing a case?  What storytelling techniques do you use?

Domestically, a lawyer is rarely found to have committed malpractice merely because she or he is unfamiliar with the current state of the law in her or his own state, much less other states or federal law. Rather, the presumption is that she or he has sufficient general familiarity with the law and possesses the skills necessary to collect knowledge about the law to provide effective counsel.  This is true even for highly specific legal subject matters such as antitrust or securities law (the one significant exception may be patent law). So, if a practitioner does not commit malpractice when advising a client without knowledge of the specific domestic law, why would the standard differ for foreign and international legal matters? 

Much as with domestic law, it is incumbent upon an attorney to become familiar with foreign and international law about which she or he is counseling a client.  But it is unlikely one could master one (much less all) of the foreign languages necessary to read the foreign legal texts various clients with foreign or international matters may require. In the absence of foreign language competence, a responsible attorney will resort to some English-language books and treatises discussing these matters under the applicable foreign or international law. For a few jurisdictions one may access some statutory or code law or scholarly work that has been translated into English. However, because these works are often general or summary, a familiarity with the internal law of a foreign country is made even more difficult due to specialized language and customs that cannot be overcome by reading a translation.

For a few dollars more (actually, many dollars more) one can solicit advice from an English-speaking attorney in the foreign country at issue.  Still, the communication between the foreign and U.S. attorneys may appear to have more meaning than it has in reality, especially when dealing with attorneys from that country rather than U.S. expatriates. The meaning of a term or legal principle discussed out of context can be particularly dangerous.  An easy example is the request by a foreign party’s attorney for execution of a document by a “notary public.”  As every American attorney knows, a “notary public” is a person who may or may not be a lawyer who will certify by “seal” that the person appearing before the notary has provided identification that appears to establish that she or he is the person he or she claims to be.  This request by the foreign attorney seems so perfunctory that one would be surprised that it seems to be of so much importance.  However, in the Civil Law tradition a “Notary Public” is usually an experienced, well-qualified attorney who has passed certain levels of examination such that s/he is licensed to act in an official capacity on behalf of a court.  Suddenly, the distinction warrants further discussion between the U.S. attorney and the foreign lawyer as to what the foreign lawyer and the foreign lawyer’s client really want and the effect of the notary’s seal.  Even more serious differences abound. Yet, many lawyers operate innocently in the dark.

So, how might an attorney deal with this potential malpractice problem? Because malpractice insurers seem to be oblivious to the potential problem of professional malpractice in advising clients on foreign and international legal matters there have been few signposts as to the standards that a court or a professional governing body might set as a minimal level of practice.  Clearly, a good initial step is to establish a contemporary record of what legal sources in English (background materials on the legal system itself, statutes and codes, judicial decisions, the works of leading scholars and secondary sources) were examined. After developing a grasp of the legal system, its structure and basic legal materials, it is wise to make a diligent search for and consultation with competent foreign counsel. This effort to obtain and abide by the advice of foreign legal counsel can serve as a strong indication that the attorney is providing accurate and current counsel while also disclosing to the client that the attorney is relying on the foreign counsel.  Still, there are likely significant gaps between what the foreign lawyer advised and what the American lawyer understood. Usually, consultation with a U.S. professor or a U.S. attorney familiar with the legal system under consideration will expose the gaps and resolve them.

U.S. attorneys are facing more and more foreign and international legal issues in their daily practices.  Clients are dependent on the efforts of attorneys to ferret out the problems that may arise in these foreign and international matters. Often the most pernicious issues are those that do not arise in standard domestic practice or have different and distinct meanings in the foreign context. Unfortunately, these are the very issues that could be the basis of malpractice complaints.  Absent guidance from courts or insurers as to the standards for malpractice in counseling clients as to foreign and international matters, a record of serious endeavors to meet the best interests of the client will be a gold standard when these issues arise.

The competition for the liaison positions is tough, and it is an honor for Theresa to have been chosen.  In this position, Theresa will attend the section’s meetings and get to know its leadership, helping it to understand and serve the needs of law students.  She will also attend meetings for the ABA Law Student Division in the Seventh Circuit.  The liaison position is a wonderful opportunity for Theresa to make connections, serve the profession, and represent Marquette University Law School in national legal circles.

It seems particularly apt that a Marquette student will serve as a liaison to the Dispute Resolution Section, given the strength of the law school’s nationally acclaimed Dispute Resolution program.  As many students are aware, the Dispute Resolution Society is a very active student organization.  Also, the Dispute Resolution Program is administering the new Milwaukee Foreclosure Mediation Program.

Congratulations to Theresa, and best wishes to her as she begins her service as liaison.

Here is a bit of the beginning of Tom Cannon’s remembrance:

Dad was probably destined to become a lawyer. By the time he was born in 1917, his father was already emerging as an iconic figure in the legal profession. Dad’s uncle, Ed Carey, was also a lawyer. And many of Dad’s numerous cousins became practicing attorneys as well. These included the Jenningses, Foleys, Tierneys, Gillicks, and Flemings — all well-known, multi-generational legal families in Milwaukee.

One of Dad’s earliest memories was sitting in a high-ceilinged courtroom in the ornate old Milwaukee County Courthouse on what is now Cathedral Square. His father was trying a case there against a cousin, Joe Tierney, Sr. As the sun streamed in through a bank of tall, stately windows, and crept toward the jurors’ faces, Dad watched his father walk over and slowly draw the shades. Perhaps it was that early moment that influenced him to become a lawyer.

Tom’s remarks are well worth the few minutes that it will take to read them — and to remember both Judge Cannon and others of our forbears who contributed much to society through the legal profession. You can find a link to them here.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

Before disclosing the author of this reflection committing, with the heart and mind of an attorney, to serve the best interests of both sides of an argument, some context and thoughts of my own:

The speaker of the words above earned his law degree in London in 1891.  Upon “graduation” and returning to his native nation with the intention of undertaking the successful practice of law, he was deeply frustrated to find that nothing he had learned in fact applied to the legal situations he was asked to serve in.  His colleagues called him the “briefless barrister.”  After two failed years of attempts to force himself into successful practice, he accepted the chance to start again in a new atmosphere, and went to a new country, South Africa, with hopes that a changed mindset and atmosphere could yield a better outcome for the application of his mind and efforts.  This did in fact work, but the financial and professional success came only after the realization above, which came along with rejecting a legal model in which the author felt the only interests served were the financial interests of the lawyers. 

The recent law school graduation hooding ceremony, replete with inspiring messages from the Dean, Bud Selig, and others, in conjunction with my coming across the passage above, got me thinking about the large numbers of unemployed lawyers, both old and new, and the sense our recent grads must have of being cast adrift, even amidst the glamour of hoods and cords and high heels, of smiles and laughter and congratulation.  At the ceremony, I saw a lot of hope and strength in those faces, but I saw doubt as well.  Some of this can surely be attributed to fears of falling on stage, or becoming wrapped up in the strange and unnatural creation of the dreaded hood before being allowed to return to the safety of one’s seat, but some, I think, was due to sobering reality seeping in around the edges of celebration.  Enough of the job statistics and economic news is already well covered elsewhere, and I will not repeat such things here.

Graduation is meant for inspiring forward momentum.  The future IS bright for our graduates — to believe otherwise is to look away from the proof of our own collective past as MULS attorneys and professionals, but more importantly as people of service to others.  Failure to reflect on history – personally, institutionally, or culturally – deprives us of our right to the legacy of our past strengths and achievements.  Perseverance in faith right now is something that is asked of those who agree to have their mettle tested, perhaps?  Perseverance is an individual choice, and in the choosing, our graduates should consider themselves selected by history to become a truly great generation of lawyers who have survived and become more than what they might have in a gentler time.

The author of the quotation at the beginning of this post floundered for two years.  Others, surely, throughout history have struggled far longer, waiting for purpose, skill, and service to intersect in the form of employment that resembles mission more than just a job.

While in law school one receives many gifts.  The least appreciated sometimes, but most prevalent perhaps is a great deal of plain old information.  To graduate is, at some point, whether right away or years later, to recognize that you carry like a bundle on your back all of this information and step forward to undertake the real work.  You are truly “in formation,” and you don’t know what you will become.  This is true of all of us, at all times.  Such is the nature of the human being – always in the process of being and becoming. 

The author of the quote above came to the point of accepting that What He Did as a “lawyer” was secondary to Who He Was as a human, and to the exercise of his great gift of human understanding and compassion.  It resulted in a synergy of human spirit and purpose that propelled him forward in his own formation.  In the process, he changed in name as well, from Mohandis to Mahatma. 

The “briefless barrister”?  Mahatma Gandhi.

It’s my reunion year, so clearly I am a post-graduate in formation myself, and I am grateful for all of my past information and experiences at MULS and in practice, and grateful, too, for the freedom to choose perseverance; as for the future, I am truly optimistic about that as well — there are some good examples to inspire me. 

Quote and biographical information source (withheld to the end for literary suspense reasons over legal ones): Eknath Easwaran, Gandhi, the Man; The Story of His Transformation (Nilgiri Press, 1997).

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.  

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists.  From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.’” 

The result seems obvious.  It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory.  In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument.  That would be a real secret to successful advocacy.

This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client.  Civil representation for disadvantaged clients, in contrast, is often unaffordable.  When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee.  Such attorneys mean well but be struggling with humongous case loads and limited resources.  My basic legal processes are infeasible for them, especially a thorough investigation or discovery.  While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation. 

Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction.  They cannot or do not provide representation.

Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out.  There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be?  These can be worked out.

The real problem seems to be other complaints that are more philosophical.  What can a lawyer accomplish in 50 hours per year?  Would forced-labor representation be substandard?  Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in?  And why are we picking on lawyers?  Do doctors or plumbers have to do pro bono work?

To the last question the reply is that plumbers and other skilled trades are not often participants in processes that kick someone out of their home (evictions, foreclosures, etc.) or take someone’s children away.  Lawyers are.  The consequences of lawyers’ activities are often far more significant than a plumbing problem.  And though doctors don’t always use the term “pro bono”, most do work with indigent patients.  Further, doctors do not monopolize the health care system like lawyers monopolize the legal care system.  There are many non-physician medical professionals who do come to the aid of the indigent: nurses, LPNs, physician assistants, EMTs, midwives, doulas, physical therapists, occupational therapists, counselors, visiting nurses, nurse practitioners, orderlies, etc, etc. We pick on lawyers because, with only a few exceptions, no legal care occurs without a lawyer on the clock.  If lawyers don’t do legal pro bono work, who would?

Regarding the quality of a lawyer’s work when forced unwillingly into a legal matter, I note that this is a good description of what a juror does.  Jurors are “civilians” usually without any formal legal training, who are forced to participate unwillingly in legal matters, and on whom we place the ultimate burden of decision.  Yet we expect jurors to perform their imposed duties properly; so why should lawyers in similar situations be recipients of great sympathy?  The Rules of Professional Responsibility should bind lawyers even in pro bono cases.

The strongest argument against the oft-rejected ABA rule is that, except for really trivial cases, even the best lawyer will not often contribute much value in 50-hour annual increments.  To bring a complex case to completion would require a bucket-brigade of lawyers which would be very inefficient.  So I have a different proposal.  (Don’t I always?) 

Throw the names of all locally practicing lawyers into a hat (metaphorically, of course).  When a local, indigent client needs civil or criminal representation, someone (a player to be named later) picks a lawyer’s name out of the hat, and that lawyer gets that case until it’s done.  Just like jurors, lawyers would be drafted for whole cases.  Just like jurors, lawyers would be drafted for a single case at a time.

Here I add a feature inspired by a Civil War draft law: If you don’t feel you are competent on the relevant area of law or cannot afford to give up your billable time for your drafted case, you can find a replacement lawyer.  If your substitute insists on compensation for time and expenses, then, after suitable negotiations, you pay.  But you forego the right to second-guess your substitute’s strategic or tactical decisions.

 Obviously, a lot of details about this proposal would need fleshing out, but this system could be fair, if properly designed.  It would result in a lawyer taking an entire pro bono case through to completion (no bucket-brigade), and provide a way for independent or socially conscientious lawyers to be compensated by other lawyers who don’t want to participate in pro bono cases but are able and willing to support those who will. 

Earlier this week, the Wisconsin Court of Appeals issued an interesting decision involving remedies for the discharge of in-house counsel in violation of the Equal Pay, Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act. Sands v. Menard, Inc., involved a claim by a lawyer terminated from her position as vice president and executive general counsel of the Wisconsin-based building supplies company. The lawyer had claimed that she was the victim of gender-based pay discrimination. The matter was submitted to arbitration, and Menard was determined to have violated the lawyer’s rights in underpaying her and retaliating for her complaint.

The arbitration panel awarded the lawyer compensatory and punitive damages and also ordered reinstatement, a remedy that neither party sought. In upholding the reinstatement order, the court provided the following analysis:

Menard does not dispute that reinstatement is a remedy under the Equal Pay Act and Title VII and that neither of those acts provide[s] an exception for in-house attorneys.  Further, Menard points to no governing case law stating reinstatement is unavailable as a remedy for wrongfully terminated in-house attorneys under the Equal Pay Act or Title VII.  Simply put, the Equal Pay Act and Title VII provide substantial authority for the arbitrators’ award.

Menard essentially asks that we create law stating reinstatement is not a remedy for in-house attorneys under the Equal Pay Act and Title VII when the employer contests reinstatement or when the attorney might be violating the rules of professional conduct after reinstatement. This is inconsistent with the standard of review.  We cannot conclude the arbitrators manifestly disregarded law that was nonexistent at the time of the arbitrators’ decision.  Additionally, we note that Menard fails to explain how Wisconsin law regarding clients’ rights to choose their attorneys, or the rules of professional conduct, could negate the remedies of wrongfully terminated employees under federal law. (Footnotes omitted.)

It should be noted that lawyers are expected to withdraw from representation when discharged by their clients, at least in circumstances in which permission of a tribunal is not required. SCR 20:1.16(a)(3). This does not necessarily deprive the lawyer of contract and tort claims arising from the discharge, but it does make reinstatement a peculiar remedy. The court’s footnote 4 may tell us something about the court’s thinking:

 We further note that the rules of professional conduct apply to attorneys, not employers. See SCR 20:Preamble (2008). Therefore, while the rules may limit the utility of a reinstatement award for an attorney who may have to decline or withdraw from representation, they do not prohibit an employer from reinstating an attorney.

My first reaction is to ask, what is the sound of one hand clapping? My second reaction is to understand the court to be saying that the employer must tender the position to the lawyer and the lawyer must then decline it. Makes for an interesting ritual.

One final note: My search of the lawyer directory on the State Bar of Wisconsin website did not find any Wisconsin lawyer named Dawn M. Sands, who was the plaintiff in the case. Is Wisconsin lawyer law even applicable? (Probably.)

1.  Thou Shall Keep Track of One’s Time, Whilst Not Waiting Until the End of the Month to Write Them Down.

2.  Thou Shall Scribble Thy Fees on Papyrus and Present Them to Thy Client

3.  Thou Shall Not Overbill, Nor Double Bill, Nor any Multiples Thereof

4.  Thou Shall Not Bill Your Client for an Hour of Work Because You Thought About the Case for Two Minutes in the Shower

5.  Thou Shall Not Runneth The Meter for Additional Billing Hours

6.  Thou Shall Not Wing It; Thou Shall Have and Hold to Thy Billing Guidelines

7.  Thou Shall Not Recycle Thy Work as if It Had Been Born Anew

8.  Thou Shall Return Thy Clients’ Phone Calls

9.  Thou Shall Not Sue Thy Clients for Unpaid Bills (Unless You Want to be Countersued for Malpractice)

10.  Thou Shall Not Sell Thy Soul to a Firm with Billing Requirements that Do Not Meet Thy Personal Expectations for a Work and Family Balance

Are we missing any of your favorite commandments?  What else should we make sure our students think about in order to avoid the messiest of conflicts, those with clients?

Seton Hall Professor Robert J. Martin served as jury foreman in this grocery store slip-and-fall case. Subsequently he wrote about the experience for the New Jersey Law Journal.  Reading that article led an appeals court to overturn the verdict he was involved in reaching.

In Language Log, Robert Shuy points out that,

I’d guess that most of us, perhaps lawyers included, don’t have a very good idea of what “proximate cause” means. The late highly respected legal analyst, David Mellinkoff, called this term of art “concise gibberish” (The Language of the Law,((1963, p. 401).

Well put. In fact, I’d remove the “perhaps,” because no one can have a very good idea of what “proximate cause” means.  The more you study it, the more you realize that it is inherently imprecise, purposefully hard to understand.  It lacks an inherent meaning.  Like many legal terms of art (and other professional jargon), “proximate cause” defines a blurry line.  

Shuy makes a useful point about the silliness of barring jurors from getting useful definitions of legal jargon, ending the post this way: 

So how are jurors supposed to interpret judges’ confusing and complex jury instructions? The Barber jury got an unexpected bonus by having an attorney help them figure some of it out. It seems unfortunate, if not unproductive, that the standards of law apparently prohibit juries from learning about legal concepts that are crucial to the trial but unknown to them. It must have been difficult for Martin to tell them something like, “It’s concise gibberish and an elusive term of art.” No matter. Even if Martin had been able to give his fellow jury members a precise, non-elusive, non-gibberish explanation, he apparently deprived the defendant of a fair trial.

There’s got to be a meaningful lesson here.

Perhaps the most meaningful lesson is that such jargon should be removed from jury instructions altogether, replaced with plain language, as plain language revisions of jury instructions try to accomplish.

But I wonder if there is also a lesson here for lawyers.  Of course, good lawyers often have to use the relevant jargon, because the cases we rely upon use it, and we need to mimic that language to connect our arguments to that precedent and to make our arguments heard.  But if the law concerning proximate cause is any indication, the law’s saturation with concise gibberish gets in the way of lawyers’ and judges’ understanding as much as it did these jurors’.

Apparently, Fish & Richardson represented, until recently, headset maker Aliph in its regulatory work out of Fish’s D.C. office.  Aliph is now suing to have Fish & Richardson disqualified from representing a direct competitor against it in a patent case.  As the Recorder explained:

Aliph Inc. moved to disqualify Fish from representing Bluetooth rival Plantronics in the patent case two weeks ago, arguing that the firm shouldn’t be allowed to sue its own client or get out of the mess by suddenly disowning Aliph at 8:30 p.m. the night before . . . .

Aliph says in court papers that it hired the firm to do FCC regulatory work in May. In December, the company got a call from the relationship partner, Terry Mahn of the firm’s Washington, D.C., office, trying to get Aliph’s consent for Fish to represent an adverse party in litigation. Fish wouldn’t identify the party or the matter, according to Aliph, and the company refused to waive the conflict.

Following further unsuccessful entreaties, Mahn sent an e-mail to Aliph on Jan. 14 saying, “Unfortunately, firm management has now weighed in and has directed me to inform you that we can no longer represent Aliph on regulatory matters without Aliph’s consent to the firm being adverse on IP matters unrelated to our regulatory work, as was explained in our initial engagement letter.” The next day, Fish attorneys from the firm’s Dallas office filed the patent infringement suit for Plantronics against Aliph in the Eastern District of Texas. The suit claims that the earbuds used for Aliph’s Jawbone Bluetooth headsets infringe on a Plantronics patent.

Diane Karpman, an ethics lawyer with Karpman & Associates, said what Fish is accused of doing took a lot of “chutzpah.”

“It’s breathtaking that a firm would disengage at 8:30 and then sue them in the morning,” Karpman said. “It would seem to be a pretty valid argument that they were working on this beforehand.”

There are a number of interesting things about this case.  First, I love how the partner responsible for attempting to get consent to client conflicts is called the “relationship partner.”  Are other partners off the hook for managing relationships now?  Is that just a nicer way than saying conflicts partner or ethics counsel?

Second, it also makes me wonder about what is going on inside the firm.  Did the D.C. partners get a vote on which client to keep?  Is this a sign of the D.C. office versus the Dallas office and showing who has more power?  I am curious to hear what happens to firms after these kinds of conflicts among clients in which one partner clearly exerts power over another to keep and/or acquire clients at the expense of other partners in the same law firm.

Cross posted at Indisputably.

• All non-billable legal research involving case law, statutes, or regulations at both the state and federal level should first be performed using Loislaw.
• Loislaw should also be used for billable research where appropriate, resulting in a much lower cost to the client.
• If additional research is required on Lexis or Westlaw, that research must be billed to a client/matter.

This post raised two issues for me.  First, it made me think about what sources I should be including in my first-year courses.

To date, my coverage in the first year has largely been limited to print sources, Lexis, Westlaw, and some court websites (though my use of “limited to” is somewhat misleading, since introducing 1Ls to all of those sources is not really a “limited” introduction to research).  I have not generally introduced Loislaw or other free or lower-cost electronic sources, in part because there just isn’t time to teach everything in the first year, but also because, although I do provide some instruction on how to use Lexis and Westlaw, I hope that what students really learn in the first year is less about any particular product than it is about how to conduct efficient legal research, generally.  Finally, I have the luxury of knowing that all MULS students are required to take an Advanced Legal Research course, so their legal research instruction will not begin and end with my course.

Second, the post confirmed for me the importance of teaching cost-effective research strategies, even in the first year of law school. Several years ago, I began incorporating information about the cost of online research into my spring course.  For their second trial briefs, I require students to keep a time sheet, track their hours, and also track the costs of their online research.  (The Lexis and Westlaw vendors provide me with ballpark pricing for the databases and services students are likely to use.)  Students are often surprised and pleased to learn that if they put some thought into their searches, online research does not have to be prohibitively expensive.  Here are just a few of the lessons my students seem to have learned based on what I saw in their timesheet exercise:

1.  Make good use of the resources available.  If your firm has a librarian, ask the librarian for research leads.  If the firm doesn’t have a librarian, call the MULS reference desk, or call the reference attorneys from Lexis or Westlaw.  Also make sure that if your firm has invested in a print library, you make use of those resources when appropriate rather than going online immediately.

2.  Plan your research before you begin.  Think about relevant sources and potential search terms.  Consider whether certain searches would be more efficient in print or online.

3.  Careful note-taking is essential.  You cannot afford to retrace your steps every time you turn back to a research project.  You need to know what ground you have already covered to save time and money.

4.  Using secondary sources in print can be a helpful first step.  You incur no charges other than your hourly fee to skim some secondary sources to get an overview of an area of law, learn the relevant terminology, and get some research leads into primary materials.

5.  Topic searching (using an index, table of contents, headnote, or key number) in print or online can be a better starting place than term searching (searching for very specific fact patterns online).  And if you begin your topic searching in print, you may learn some terminology or topic and key numbers that give you a head start on your online searches.

6.  Careful database selection can save money.  There is no reason to choose a database that collects the cases from every state if you’re really interested in law from one particular state.  In general, the bigger the database, the higher the cost, both in terms of how much the vendors charge to search that database and in terms of how much time you spend sifting through the results.

Hat tips: Legal Writing Prof Blog and AboveTheLaw Blog.

As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?

Wisconsin is one of just two states (New Jersey is the other) that impose a mandatory duty on lawyers to prevent continuing fraud by a client.   Specifically, SCR 20:1.6(b) provides as follows: “A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another” (emphasis added).     One authoritative legal source that discriminates between “criminal” and “noncriminal” fraud (an interesting distinction itself), reports the following: only 2 jurisdictions (Wis and NJ) require mandatory reports, 24 leave it to counsel’s discretion, 23 forbid disclosures, and 2 require the lawyer resign!  (The tally for “criminal fraud” is equally enlightening: only 4 require disclosure, 40 permit it at counsel’s discretion, and 7 forbid it.)

The scope of the Wisconsin lawyer’s mandatory duty to prevent client fraud is uncharted.  The rule has been part of Wisconsin law since the adoption of the present rules.  Several years ago the supreme court and a distinguished committee implemented a number of significant revisions but left SCR 20:1.6(b) untouched.  Unclear is when the duty is triggered.  When does a “risky investment” become a fraud?  What exactly must the lawyer know, or be aware of, before she is required to act?  How much monetary damage constitutes a “substantial injury” to a “financial interest”?  Does a violation expose the lawyer only to professional discipline, or might it open the way to a tort claim against both the lawyer and the law firm?

Case law is sparse, which may be a good or bad thing.  SCR 20:16(b) reared its head – sort of – several years ago in a case out of LaCrosse.  Lawyer K represented “Randy,” a tavern owner, on several ordinance violations involving Randy’s bar.  One day Randy’s bar burned down.  When Lawyer K commiserated with Randy about this misfortune, Randy disclosed that he had intentionally set the fire in order to collect on the insurance policy.  Lawyer K promptly told Randy that he could not collect the insurance because this would constitute still another crime – past arson + future insurance fraud = big trouble for Randy.  Shortly thereafter, Lawyer K memorialized this same information in his “Dear Randy” letter, which also warned Randy that SCR 20:1.6(b) obligated Lawyer K to notify others to prevent any future fraud from occurring.  The letter ended by terminating Lawyer K’s representation of Randy.  Sometime later, Lawyer K learned that Randy had disregarded his advice and collected part of the insurance proceeds.  To protect against further fraud, Lawyer K notified the police and prosecutors of Randy’s crimes.  The disclosure included the “Dear Randy” letter which recounted Randy’s confessions.  Randy moved to suppress the evidence on grounds that (former) Lawyer K had breached Randy’s privilege and disclosed confidences without Randy’s consent.  The trial court disagreed and refused to suppress the evidence.  In a terse, poorly crafted, one page unpublished per curiam opinion, the court of appeals affirmed.  Without analyzing (or citing) SCR 20:1.6(b), the court validated the disclosure instead under the crime-fraud exception to the lawyer-client privilege, which is silent as to disclosure.   For the curious reader, the opinion appears here.   

In some respects, Randy’s case was an easy one.  Randy clearly intended to commit insurance fraud; this was not just a risky or murky transaction.  But remember that Lawyer K “fired” Randy at the end of the “Dear Randy” letter.  Does SCR 20:1.6(b) apply to former clients?  (Here it should be mentioned that lawyers have “discretion” to disclose client misconduct, but that’s a different story.)   And even where disclosure is mandatory, how precisely does the rule regulate the scope of disclosure?  What is “too much”?  Should it monitored by a court?  As the far more complex tale of financial misconduct unfolds, there may be provocative issues of what lawyers may have known of their clients’ actions and whether they should have acted to protect investors or third parties under SCR 20:1.6(b).  One suspects that there may be other, far more mendacious “Randys” out there.  

Gladwell’s book ranges widely over the domain of successes. Why are the best Canadian and Czech hockey players usually born between January and March? What explains the staggering success of a Bill Gates or Robert Oppenheimer while other even more brilliant types fade into obscurity? How come “gifted and talented” kids from the suburbs often do not fulfill the promise predicted by their IQ tests? Why are the socially disadvantaged children who attend the KIPP Academy in the South Bronx so good at math? And, for that matter, why is it that Asian children are also so much better at math than typical American kids? (Teaser: the answer lies not in genetics, but in culture and the language (literally) of mathematics.)

In resolving these questions, Gladwell invokes a familiar formula that he richly illustrates with stories and infuses with a decidedly soft approach to quantitative methods: success is rooted in hard work and capitalizing on chance opportunities. Talent certainly plays a role, but only to a point. Albert Einstein’s IQ was 150, yet Chris Langan has an IQ of 190 and toils in obscurity on a rural Missouri horse farm. It was the brilliant Oppenheimer’s personality and charms which allowed his career to advance despite his plot to poison his physics tutor at Cambridge. (p. 97) (Most students would likely suffer more than the academic probation imposed on Oppenheimer – I, for one, would insist. Gladwell ignores the irony that Oppenheimer later switched from poisons to A-Bombs, quoting the Bhagavad Gita, ” . . . I am become Death, Shatterer of Worlds . . ..”)

Chance, too, looms large. For example, in Canada and the Czech Republic the arbitrary cut-off date for age-group hockey is January 1; thus, boys born closer to January 1 simply have more time to practice and to grow faster and stronger than those born in September, and so they are more likely to be selected for elite teams and so on. America’s titans of technology — Gates, Paul Allen, Steve Ballmer, and Steve Jobs — were born in the mid-1950s, which made them the ideal age to seize the opportunities presented by computers in the late 1970s.

Giving talent and chance its due, Gladwell posits that hard work and practice (experience) is often the determinative factor. Indeed, Gladwell devotes a chapter to what he calls the 10,000 hour rule. Simply put, “ten thousand hours of practice is required to achieve the level of mastery associated with being a world-class expert – in anything,” according to a neurologist quoted by Gladwell. (p. 40) Bill Gates, for example, amassed thousands of hours of free computer use at a time when it was prohibitively expensive. Success, then, is a product of talent and chance, but above all it arises from experience (Mozart included).

Outliers takes up several examples relating to law. A chapter is devoted to the success of Joe Flom and the spectacular growth of Skadden, Arps. In Gladwell’s telling, Flom labored for twenty years doing legal work that the “white shoe firms” would not touch, particularly hostile takeovers and litigation. When the legal world changed in the 1970s, Flom was well positioned to take a goodly share of the now fashionable, and highly profitable, merger and acquisitions work. “It’s not that those guys were smarter lawyers than anyone else,” said one observer. “It’s that they had a skill they had been working on for years that was suddenly very valuable.” (pp. 128-29)

And the lessons for lawyers and law students? There is no magic ticket to success. High LSATs, great grades, and connections are, of course, useful, but are seldom determinative. Legal education is exceptionally effective at developing analytic skills, but lawyers require a far broader panoply of skills (”practical intelligence”) in representing clients in both transactional and litigation settings. In sum, three years of law school will (usually) yield a diploma and a law license, but it is only through thousands of hours of practice that one accumulates the experience to be expert “in anything.” Outliers’ theme is familiar if ever so distressing in a tight job market, yet it bespeaks the value of gaining experience even in less desirable positions until the hoped-for opportunity arises.