Posted On: August 25, 2010

Lawyers: Read up on your Shakespeare

Thanks to the oft-cited and oft-interpreted “Kill all the lawyers” line from Shakespeare’s Henry VI Part 2, many have debated Shakespeare’s feelings about attorneys. And scholars have long deliberated Shakespeare’s familiarity with the laws of his day. Yet no one doubts the Bard’s grasp of human nature.

In a clever article entitled, “What Can Lawyers Learn from ‘Othello,’” Texas attorney Michael Maslanka focuses on this particular Shakespearean tragedy to offer trial lawyers what he calls a “cautionary tale” about the pitfalls of human behavior that often play out among attorneys, clients and witnesses. Among other pointers, Maslanka warns lawyers not to accept everything a client says as true and to beware of agendas that might not be what they seem. Wise advise.

The article also underscores the villain Iago’s skill in playing to his audience, suggesting that lawyers can learn from his tactics: “Iago-like lawyers probe others for core ethical beliefs,” writes Maslanka, “and then adroitly flip the switches to trigger action in conformity therewith.”

Indeed, when you argue a case, your audience – whether judge, jury or arbitrator -- ultimately decides whether your client wins or loses. It is a mistake to think of your audience as a passive receptacle for your line of reasoning. Rather, think of your audience as an active participant who may interpret things differently from the way you intend. For example, you may think of “home” as a quiet cottage with a white picket fence. Your audience may think of “home” as a cramped city apartment. Don’t let yourself forget that we all come to the courtroom with different perspectives and it is your audience’s perspective that ultimately counts.

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Posted On: August 5, 2010

Law Reviews Matter More Than You Think

It turns out that law review may not be so irrelevant in the courtroom after all. According to a study released last month on the website of the Social Science Research Network and reported this week in the National Law Journal, citations of law review articles in judicial opinions are on the rise. The finding contradicts the belief that law reviews are forums exclusively for academics, rather valuable tools to those who practice law.

Two law professors led the study: David L. Schwartz of the Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School – Los Angeles. The professors found that, contrary to popular belief, “Over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit court of appeals.”

According to their study, there were twice as many legal scholarship citations over the 10-year period from 1999 through 2008 as there were in the 30-year period from 1950 through 1979. Seventy percent of all law review citations since 1950 have occurred in the past 20 years, the research concluded.

These findings may come as a surprise to some of the country’s judges, several of whom have gone out of their way to criticize law reviews as exceedingly theoretical and irrelevant. Other judges, though, clearly do attend to developments in legal scholarship, suggesting that so, too, should the lawyers representing clients before them. The challenge, of course, is in reading selectively, finding articles most likely to aid your practice. In this content-saturated world, that is no easy task.

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