Posted On: June 27, 2008

Karen H. Rothenberg

Much news this week from Karen H. Rothenberg, Dean of the University of Maryland School of Law. On Wednesday she offered an excellent op-ed on the importance of law schools' attending to the ethical aspects of the legal profession. And yesterday came word that she will be stepping down as dean and returning to the faculty at the end of next school year.

The law school will miss her leadership. Over the years she has steered the school with the same moral sensibility that is on display in the op-ed, in which she announces that:

Thanks to a $1.6 million investment from the Fetzer Institute, the UM School of Law has recently launched a pioneering initiative that will emphasize ethics, moral formation and leadership development for lawyers.

This is an excellent initiative. In 2003 I attended a meeting of the 4th Circuit Judicial Conference at which several law school deans, including Dean Rothenberg, discussed the future of legal education in the country. Afterwards, I wrote an article for The Daily Record entitled "A Challenge to Law Schools" that addressed this very topic.

Continue reading " Karen H. Rothenberg " »

Bookmark and Share

Posted On: June 16, 2008

Maryland Discovery Problems & Solutions

Maryland Discovery Problems & Solutions is a new book co-authored by Chief Magistrate Judge Paul W. Grimm, Charles Fax (of Rifkin, Livingston, Levitan & Silver) and yours truly. We and others offered an unusual seminar based on the book at the Maryland State Bar Association's annual meeting in Ocean City last week. The Daily Record ran this preview of the event.

If you think you know discovery rules inside and out, note Judge Grimm's comment in the article:

Issues Grimm said he sees all too frequently include “non-particularized or generalized boilerplate objections” to discovery requests, which give the judge little insight when ruling on the subsequent motion to compel; lawyers stating facts in motions without supporting them with a citation to any affidavit or document; and lawyers who fail to realize that litigation proceeds in an “adversarial system but in discovery you have to cooperate” and compromise.

For those who want to brush up on MD discovery rules, you're not too late for two upcoming MICPEL programs on the same topic, offered on June 17 and July 16. Details available here.

Bookmark and Share

Posted On: June 12, 2008

Researching judges

More on the subject of researching judges:

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

Continue reading " Researching judges " »

Bookmark and Share

Posted On: June 10, 2008

Communicating with Judges at Trial

The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.

Continue reading " Communicating with Judges at Trial " »

Bookmark and Share

Posted On: June 3, 2008

Writing for Judges

It's obvious that attorneys should research judges before they argue before them, and that they should write their briefs with the judges' philosophies and predilections in mind. Why, then, do judges remain so frustrated with how lawyers write motions?

U.S. Supreme Court Justice Antonin Scalia apparently feels so strongly about the subject of legal writing that he's devoted much of his new book to it (Making Your Case: The Art of Persuading Cases). If you haven't time to read the book, you might check out this older article, published in 2002 by Georgetown law professor Kristen K. Robbins Tiscione. The piece summarizes the results of an unusual survey of federal judges on the subject of legal writing. Three hundred and fifty-five judges took part in September 1999, and their collective responses portray a judiciary that is a bit fed-up with long-winded briefs that are nonetheless lacking crucial legal analysis.

Continue reading " Writing for Judges " »

Bookmark and Share

Posted On: June 1, 2008

Persuasion is Not a One-way Street

Persuasion technique is often taught in such a way as to focus your attention on yourself—your rhetoric, your skill, your arguments, your persona. Don’t be mistaken: rhetoric is at least a two-way street. Any argument you offer has several components—you (the messenger), the content of what you have to say, the medium, and the audience. The most important of these, and the least predictable, is the last.

In the context of litigation, members of the audience (jurors and judges) determine your client’s fate. To succeed, you have to understand them as well as possible and then tailor your argument accordingly. That’s what’s called a “receiver-centered” approach, and in my view it’s fundamental to success.

In an earlier book (The Winning Argument), my co-authors and I quoted an old story about an Irish barrister representing a shepherd before the high court of Great Britain. During the argument, a member of the court commented: “I’m sure your client is familiar with the doctrine of res ipsa loquitur.” The lawyer responded, “Yes, my Lord, in Killarney, where my client tends his flock of sheep, they speak of little else.”

Lawyers err in this fashion every day. They assume their audiences understand too much or too little. They speak over or under the heads of jurors. They bore judges with tedious, irrelevant details, or irritate them with inappropriately bombastic rhetoric.

Why does this happen? Attorneys prepare their arguments in the privacy of their offices surrounded by colleagues who speak their language and often share common backgrounds. Inside this bubble, they spend hours upon hours perfecting the intricacies of written and oral arguments, gradually slipping into the illusion that this rhetoric is theirs. This is a mistake of ownership. A legal argument does not belong to the attorney who makes it. It belongs to the court. Once uttered, it exists as a public expression that will be received, decoded and judged by those who hear it.

In other words, the “receivers” are not passive receptacles for rhetoric. In decoding your argument, the audience is as much involved in creating its meaning as you are. When you use the word “home,” for instance, you may associate it with a tranquil country cottage while your listener may envision a high-rise hovel fraught with tension and resentments.

According to Aristotle, “the whole affair of rhetoric is the impression to be made upon an audience.” If you believe this is true, and I do, then you will nimbly shape your rhetoric to suit the receiver, be it a judge (in a motion), a jury (at trial), or the opposing party (in negotiating a settlement).

In my next post, I’ll focus on the first of these, the judge.

Bookmark and Share