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.
I’ve just received my brand-new, hot-off-the-presses issue of the Marquette Law Review, which has several articles I am looking forward to reading. Here are the contents:
Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using Purposive Textualism to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008).
Michael W. Loudenslager, 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).
Barbara O’Brien & Daphna Oyserman, It’s Not Just What You Think, But How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149 (2008).
Joan Shepard, Comment, The Family Medical Leave Act: Calculating the Hours of Service for the Reinstated Employee, 92 Marq. L. Rev. 173 (2008).
Charles Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Towards What the West Calls Intellectual Property, 92 Marq. L. Rev. 199 (2008).
Congratulations to the student editors of Volume 92 for the successful completion of their first issue!
The Advanced Legal Research courses at Marquette have a “real world” focus. For my part, I have tried to select research problems for final projects and assignments that place students in real world practice situations.
To the extent that I can, I avoid the “hunt and find” type research problems for which there is one right answer hidden somewhere. The legal issues the students have to research sometimes, but do not always, have a straightforward answer.
In the “real world,” legal research and legal writing go hand in hand. Thus, in addition to their research plan and research log, the students must then submit a written product such as a letter or a memo summarizing their research results for a supervising attorney, a judge, a client, etc.
This past semester I added a more detailed cost-effective research component than I had in the past. In some of their research assignments students only had limited Lexis/Westlaw packages (like Westlaw PRO). In order to completely and accurately respond to the research problem, the students had to come up with a cost-effective research strategy that involved using only a subsection of their current academic Lexis or Westlaw subscription in conjunction with the print materials in the library and the freely available online legal resources like PreCYdent, GPO Access, Thomas and the Cornell Legal Information Institute that we discussed in class. The student response to my focus on the free legal research options has been largely positive.
This coming semester I plan to deliver research assignments in the variety of different formats students will encounter in practice. This includes the delivery of research assignments through a larger case file, brief email messages that require further questions for clarification, longer written memos, and spoken conversations. I look forward to the feedback I will get from my students after next semester.
Thanks so much, Deans Kearney and O’Hear, for the invitation to serve as the inaugural alumni blogger on this most excellent effort. I added the MULS Faculty Blog to my RSS reader the day it was announced, and am glad to have done so.
You’ll forgive me if I start the new month by focusing on last month’s question: who was your most influential law school professor? I had originally intended to modify the question slightly and praise Professor Christopher Wolfe (pictured above), but I understand all the best points were already covered at the STMS banquet by Dean Kearney and Katie Longley.
So instead, allow me to praise the question itself. In short, it is good that we reflect on who influences us, and it is worthwhile to identify people we look up to and admire. I am currently researching and drafting a law review article that encourages lawyers to be more intentional about selecting a hero to learn from and emulate. (I take the liberty of suggesting several candidates for the job as well.)
A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN. Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law. She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.
Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.” She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond to their position within the traditional hierarchy of federal decisional law.” Continue reading “Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?”
I am enjoying reading the current issue of the Journal of Legal Education. In particular, the second article, From Snail Mail to E-mail: the Traditional Legal Memorandum in the Twenty-First Century, authored by Kristin K. Robbins-Tiscione, has gotten me thinking about the documents we use to teach students in the first-year writing courses. Continue reading “What Types of Documents Should Law Students Write in Legal Writing Classes?”
Call me an old fuddy-duddy, but I’ll be the first to admit I do not “get” tattoos. If you really want to show off that rebellious streak (or solidarity with the underclass, or unrestrained individualism, or whatever), there are many other ways to do so that are much less painful and permanent. When I see young people with prominent tattoos, I can’t help but think about the professional job opportunities they have foreclosed by making a permanent record of their youthful passions. But, according to an article in today’s New York TImes, my concerns may be misplaced:
In a mysterious and inexorable process that seems to transform all that is low culture into something high, permanent ink markings began creeping toward the traditional no-go zones for all kinds of people, past collar and cuffs, those twin lines of clothed demarcation that even now some tattoo artists are reluctant to cross.
Not entirely surprisingly, facial piercing followed suit.
Suddenly it is not just retro punks and hard-core rappers who look as if they’ve tossed over any intention of ever working a straight job.
Artists with prominent Chelsea galleries and thriving careers, practicing physicians, funeral directors, fashion models and stylists are turning up with more holes in their faces than nature provided, and all manner of marks on their throats and hands.
At today’s faculty workshop, Robin Slocum, the Boden Visiting Professor Law, gave a fascinating presentation of her latest paper, entitled “The Dilemma of the Vengeful Client: A Prescriptive Framework for Cooling the Flames of Anger” (forthcoming in the Marquette Law Review). Noting that lawyers and the legal system can sometimes become weapons for vengeance in the hands of an angry client, Robin suggested that client counseling can help both the client and the lawyer achieve better outcomes in litigation and avoid the psychological and physiological costs of such vengeance-seeking activity. Effective client counseling, she argued, should focus on uncovering the thoughts and beliefs that underlie anger in order to identify the more rational aims of litigation. In addition, Robin suggested that law schools may consider adopting courses that build lawyers’ emotional competency to engage in this type of counseling.
Now that classes have started and the interview season is upon us, it’s always interesting to examine what law firms will do to be attractive to law students. As a creative method to demonstrate to law students that it truly is different, Halleland Lewis in Minneapolis developed an interactive website to demonstrate the questions and answers in a typical law firm interview. First, this website is hilarious, and bravo to Halleland for breaking the mold. Second, this is a great example of ostensibly understanding the difference between what people say and what they mean. Finally, if Halleland actually has the work environment that it describes, it sounds as if problem-solving, teamwork, and collaboration are all valued. I think I know some students who should be calling you shortly!
Cross posted at Indisputably.
I am linking here to an interesting article from the ABA Journal last week pointing out that a lawyer’s reputation is much like your savings account-add a little to it each year and it can make you rich over time. I like this framework of reputation for two reasons: One, it suggests that a good reputation is worth money in the bank. We know anecdotally and from laboratory studies that this is true. Second, the idea of savings in a bank account is a great analogy in terms of reminding lawyers that every little thing they do can help or hurt that reputation. It’s not just the end of year bonuses that add to your savings, it’s the monthly deposits as well. Similarly, it’s not just the grand gestures in large negotiations that make your reputation, it’s how you act on a daily basis with your counterparts Although the book referred to in the ABA Journal is for young lawyers, I think this provides good advice all around!
Cross posted on Indisputably.
The techie blogosphere is abuzz with the news that Michigan amended its private investigator licensing laws in May to add “computer forensics” to the list of activities that require a P.I. license in Michigan. This may not sound like big news, but it raises the possibility that MediaSentry, a company that gathers information on peer-to-peer filesharers for use in the RIAA’s lawsuits against online infringers, may be violating the law in several states. Given the general antipathy to the RIAA among the technorati, suddenly a large number of bloggers are interested in the arcane details of P.I. licensing requirements.
But the issues raised by the law go well beyond the RIAA lawsuits, and potentially affect any investigation of online misbehavior. Any lawsuit against an anonymous online individual begins with an attempt to identify that person. Furthermore, the definition of “computer forensics” in the Act is so broad that it includes printing out a web page for use in a lawsuit. Attorneys need to pay attention here too: the Michigan law exempts attorneys, but only if they are “admitted to practice in this state.” And other states have similar laws. So do you need a P.I. license or a bar admission in all 50 states before you can sue that defamatory blog poster?