Constitutional Rights in Action

All eyes are on Wisconsin these days.  Governor Scott Walker unveiled details of his budget repair bill on February 11; the bill itself is 144 pages, but provisions that immediately captured attention were those that remove the collective bargaining rights of most state and local employees.  By Monday, February 14, when the bill was introduced, protestors began to fill the Capitol building in Madison.  As the week went on, more and more people descended on the Capitol to protest the passage of the bill, with Saturday’s crowd topping at an estimated 68,000, 60,000 of whom flooded the Capitol grounds and square, while another 8,000 filled the Capitol building itself.  Even more were expected yesterday, which was a furlough day for many state employees.

What is happening in Madison, Wisconsin, is monumental, and I am not solely referring to the proposals contained in the bill.  What is exceptionally important here is that we are able to see the expression of constitutional rights in a most obvious way, a fact that I think has received little attention.

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Brevity in Lincoln’s Writing

Professor Julie Oseid examines Abraham Lincoln’s writing in her article The Power of Brevity:  Adopt Abraham Lincoln’s Habits, 6 J. ALWD 28 (2009).  Based on her review of Lincoln’s writing, Oseid recommends that lawyers use his “habits of writing early, visualizing audience, and ruthlessly editing.”  (page 29)

Oseid starts with the premise that “[t]he goal of brevity should be clarity.” (29)  Lincoln, she says, described the opposite of brevity when he said that another lawyer could “’compress the most words into the smallest ideas of any man I ever met.’”  (29)  Brevity does not sacrifice precision, however, and a writer must be aware of concepts like the rhythm and sound in phrases like “’[f]our score and seven years ago.’”  (30)

Brevity has persuasive power.  (30)  Oseid quotes Justice Antonin Scalia and Bryan A. Garner on brevity in Making Your Case: The Art of Persuading Judges:  “’Judges often associate the brevity of the brief with the quality of the lawyer.  Many judges we’ve spoken with say that good lawyers often come in far below the page limits—and that bad lawyers almost never do.’”  (30)

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The Power of One, Part Three: Lawyer as Advocate

Note: This is the third installment in a four-part series of blog posts; you’ll find part one here, and part two here.

Popular media most frequently depict lawyers in an advocate role.   Specifically, the media shows a lawyer parading in front of a jury, pounding on a lectern and giving a grand oratory performance.  These, incidentally, are things that appealed to me about being a lawyer.   I like theater, and I like competition.

I started my law firm clerkship with a bang with all the theatre and gamesmanship I could have wanted.   In the summer of 1999, I participated daily in a six-week jury trial that led to a $100 million verdict.  We were thrilled because the jury assigned no liability to our client, a third-party defendant.   The plaintiff, of course, was ecstatic.  I found the experience thrilling.  More so, because I hadn’t been part of the three years leading up to that six weeks.  And I didn’t play much of a role in the years of appellate proceedings that followed.  The pace of litigation takes years to learn, and a good while longer to figure out how to explain to a client.

But even at that nubile stage I could see that a trial “victory” comes at great expense.   The plaintiff-municipality had incurred enormous costs, not the least of which was diversion from present endeavors, that redressing the past requires.   And our client, while clearly a winner at trial, had incurred heavy costs as well.    The longer I practiced the more I learned that most civil cases boast no definitive victor.  More than 90% of cases settle before trial, typically requiring compromise on all sides.   Because of all the incentives to resolution, the rare case that doesn’t settle often has circumstances suggesting blame cannot be assigned so neatly.

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