Postgraduate Information

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“I had learnt the true practice of law.  I had learnt to find out the better side of human nature and to enter men’s hearts.  I realized that the true function of a lawyer was to unite parties riven asunder.”

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.  Continue reading “Postgraduate Information”

Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

Posted on Categories Federal Law & Legal System, Judges & Judicial Process, Legal Practice, U.S. Supreme CourtLeave a comment» on Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose.  In the words of the attorney who did some of the first work on this question while she was a still a law student,

“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.

In America You Can’t Buy Justice. But You Can Rent It.

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Marquette Law School7 Comments on In America You Can’t Buy Justice. But You Can Rent It.

In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging—if not requiring—minimumpro bono work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services.  Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable. 

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? Continue reading “In America You Can’t Buy Justice. But You Can Rent It.”

Marquette Law Alum Major Deon Green on WUWM’s “Lake Effect” Program

Posted on Categories Federal Law & Legal System, International Law & Diplomacy, Legal Practice, Marquette Law School1 Comment on Marquette Law Alum Major Deon Green on WUWM’s “Lake Effect” Program

Our alum, United States Army Major Deon Green (Law 1997), was recently interviewed on WUWM’s “Lake Effect” radio program.  Maj. Green is a member of the JAG Corps and serves as the principal legal advisor to the Commanding General of the Third Sustainment Command Expeditionary in Iraq. The Third Sustainment Expeditionary handles all of the logistics and supplies for the 144,000 troops serving in Iraq. As the principal legal advisor, Major Green directs a team of fifty attorneys and legal assistants who address a broad array of issues—from contract questions to offering legal advice to troops serving in Iraq.  

Reinstatement of a Wrongfully Discharged Lawyer?

Posted on Categories Legal Ethics, Legal Practice, Uncategorized, Wisconsin Law & Legal SystemLeave a comment» on Reinstatement of a Wrongfully Discharged Lawyer?


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: Continue reading “Reinstatement of a Wrongfully Discharged Lawyer?”

The Ten Commandments (of Billing)

Posted on Categories Legal Ethics, Legal Practice6 Comments on The Ten Commandments (of Billing)

As an exercise for my ethics class, I had each student write down his or her top ten commandments of billing.  My hope was that the students would both learn these rules and have them in a nice, easy place to find and print once they start practice. As the Ten Commandments was on this past weekend, it seemed appropriate to post the top ten commandments from the class.

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?

The Concise Gibberish of the Law

Posted on Categories Legal Practice6 Comments on The Concise Gibberish of the Law

File:LangensteinsAisleJuly2008.jpgIf you like thinking about the way lawyers use words and how and why that usage is different from the way normal people, er, I mean, non-lawyers use words, take a moment this Friday afternoon to read Language Log’s take on the New Jersey case of a slip-and-fall verdict overturned because a law professor subsequently wrote an article about his experience on the jury, including his efforts to help explain what “proximate cause” means. Continue reading “The Concise Gibberish of the Law”

Hot Potato Conflicts

Posted on Categories Legal Ethics, Legal Practice1 Comment on Hot Potato Conflicts

I recently taught about successive conflicts in my ethics class, and there could be no better timing than the Fish & Richardson case to explain the hot potato scenario.  The “hot potato doctrine” means that firms are generally prohibited from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients.

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 . . . .

Continue reading “Hot Potato Conflicts”

Dollars and Sense

Posted on Categories Legal Education, Legal Practice, Legal Research4 Comments on Dollars and Sense

I was scanning the Legal Writing Prof Blog this afternoon, and I noticed a post stating that, in an effort to save money, one large law firm is now requiring its attorneys to use Loislaw, rather than Lexis or Westlaw, for some of their research.  Evidently, the firm has imposed a three-part policy:

  • 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. Continue reading “Dollars and Sense”

Client Fraud and the Lawyer

Posted on Categories Criminal Law & Process, Legal Ethics, Legal Practice, Uncategorized, Wisconsin Law & Legal SystemLeave a comment» on Client Fraud and the Lawyer


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)? Continue reading “Client Fraud and the Lawyer”


Posted on Categories Legal Practice3 Comments on Outliers

Like many lawyers and law students, my holiday reading list studiously omits overtly legal topics. Well almost. I co-teach a course at the Law School called Quantitative Methodology, which drew me to Malcolm Gladwell’s book Outliers (Little Brown, 2008). In statistics, an “outlier” is an observation that is “markedly different” from others in the sample. Gladwell’s book is itself an outlier of sorts; how many books that revel in statistical analysis have been number one on the New York Times‘ nonfiction list? Part of the answer lies in Gladwell’s remarkably lucid writing style. What makes the book fascinating, however, is that Gladwell’s focus is not statistical concepts as such, but a particular kind of outlier, namely, successful people and the reasons for their success. And as I finish grading exams for the fall semester and prepare for the spring semester that starts on January 12 (today), the time is ripe to consider both success and failure. My comments below scratch just the surface of a more complex argument, but it will give you a sense of Gladwell’s purpose.

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.) Continue reading “Outliers”

Must Lawyers Disclose Their Role as Ghostwriter?

Posted on Categories Legal Ethics, Legal Practice, Legal ScholarshipLeave a comment» on Must Lawyers Disclose Their Role as Ghostwriter?

Professor Michael W. Loudenslager of Appalachian School of Law has ventured into the thorny thicket of affirmative duties to disclose in his provocative article, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008). The crux of the issue is whether behind-the-scenes drafting of one or more litigation documents for a pro se litigant, by a lawyer who does not appear in the matter nor otherwise disclose her involvement, constitutes misconduct. The principal concern is whether the court and adversary are likely to be misled inappropriately by the nondisclosure. The issue arises frequently because so many matters must go to court, from collection cases to divorces to traffic offenses, and the cost of full representation is either beyond the reach of many litigants or is, in their judgment, not cost-effective. The authorities are divided as to whether disclosure should be required. Loudenslager does a fine job of taking us through the arguments and offers a solution of his own. It makes for engaging and thought-provoking reading.