Category Archives: Law: Practice

Good Advice for Persuasive Writers

I thought there was a lot of merit to most of the ideas in this discussion of persuasive legal writing at SCOTUSblog.

I particularly agree with this part:

What makes persuasive writing so hard?

To succeed, you have to imagine a highly skeptical, highly impatient reader who will never care as much about your case or appeal as you do—and then ask yourself how you can somehow grab that reader’s attention and sustain it page after page.

I just don’t think that most advocates—legal or otherwise—imagine an actual person reading their work, let alone think about how to sway that person to their cause. That may be one of the reasons briefs used to be better when lawyers dictated them.  Dictation is at least one step closer to actual communication.

You also have to channel whatever passion you feel into clarity and creativity, not into the anger and self-righteousness that drive so many motions and briefs.

Finally, the apparatus of brief-writing—the citations, record cites, defined terms, footnotes, and case discussions—can easily mask flaws in the prose and in the logic itself.

In your book, you write that advocates should “show, not tell,” in their facts statement, letting choice details speak for themselves.  Why is it important to let the reader come to her own conclusions about the facts?

The people who read lawyers’ work—judges and other lawyers—are highly educated and often cynical.  If your fact section sounds like argument, they’ll dismiss it as spin.  Fiction readers don’t want to be told that March 1 was a warm day in Washington, DC.  They want to be shown that the plaintiff’s clothing stuck to his skin just seconds after he stepped outside his apartment. Judges are similar. They don’t want to be told in a fact section that the defendant engaged in dilatory tactics throughout discovery. They want to be shown that on four occasions, defendant missed a discovery deadline and then provided incomplete responses requiring weeks of further delay.

Bottom line: We are inclined to believe our own conclusions, but we resist conclusions that someone else is trying to shove down our throat.

Surely that last point applies more generally?

[Title corrected]

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Robert Rosen on the Roles and Dilemmas of Attorneys in Advising Corporations

This is pretty cool: my colleague Robert Rosen has just had his Ph.D dissertation — written many years ago and apparently something of a cult classic — published.

Here’s the publisher’s blurb:

The recognized study of the disparate roles that corporate attorneys play in representing and advising their institutional clients. Long passed around and cited by scholars and lawyers as an unpublished manuscript, the book is also accessible to a wide audience and includes inside interviews. Professor Robert Rosen insightfully explores the choices that lawyers, managers and executives make about how lawyers are involved in corporate processes.

In the companies studied, Rosen showed that corporate lawyers were repeatedly intertwined in decisions—beyond those regarding mere legal compliance—ranging from finance to production to sales to returns to litigation. But the how, when and consequences of their involvements varied. The book analyzes these variations. It examines relations between inside and outside counsel and the management of the corporate legal function. It locates them in a taut framework of organization theory and institutional behavior, a frame and application since referenced for its cogency and explanatory power.

The author, now a senior professor at the University of Miami Law School, repeatedly calls on attorneys to understand the organizational context of their work. His book repeatedly calls out attorneys who ill serve their clients because they failed as organizational analysts. It has since been recognized by legal, ethical, and sociological theorists as a rich resource of corporate analysis and the divergent roles that lawyers play.

The groundbreaking research was conducted at six major manufacturing companies as Rosen interviewed a triad of inside counsel, outside counsel and managers who worked on particular problems. This novel method allowed self-serving statements (especially by the lawyers involved) to be checked and placed in realistic context. More important, because it triangulated how the legal problem was understood, the method brought out how the legal task had been structured. The frames that the lawyers, managers and organization imposed on the legal problems varied widely—and the sources and consequences of these variations are detailed and explained.

The book’s latest edition is now available from Quid Pro Books, but the manuscript has already had scholarly impact and praise. For example, the Yale Law Journal noted in 1996 that “Rosen’s important manuscript is widely cited in recent literature on legal professionalism.”

Posted in Law: Practice, U.Miami | 1 Comment

NYSBA Consideres ‘Strengths and Weaknesses of Women’ Lawyers

The New York State Bar Association was actually planning — really — to put on a panel discussion entitled Their point of View: Tips from the Other Side, described as follows: “A distinguished panel of gentleman will discuss the strengths and weaknesses of women.”

Yes, you've come a long way, baby.

(Howls of protest, threat of boycott, inspired cosmetic — but it seems not substantive —changes.)

Posted in Law: Practice | 3 Comments

New Florida Bar Anti-Advertising Rule Threatens Legal Bloggers?

At Prawfsblog Lyrissa B. Lidsky has a good question for members of the Florida Bar who blog: Will this post get me disbarred?

Here's the setup:

The Florida Bar has a new attorney advertising rule that aggressively regulates attorney speech on the Internet.  Florida Bar Rule 4-7.6  Indeed, the new rule regulates attorney speech so aggressively that it might even apply to this blog post.  Until recently, the Florida Bar considered all attorney websites and web communications as information provided upon the request of a prospective client and did not apply its attorney advertising rules to them.  But now the Florida Bar has extended its substantive advertising rules except for its filing requirement to all “Computer-Accessed Communications” by Florida attorneys. 

The first problem with the new Bar rule is its exceeding broad definition of “computer-accessed communications” as “information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer.”  The definition includes “but [is] not limited to, websites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firms’ services that appears on Internet search engine screens and elsewhere.”  Under that definition, if I write in this post that I’m a defamation expert, I’m giving you information regarding my services, and I could be subject to reprimand, suspension, or disbarment if I don’t meet the substantive requirements of the Florida Bar’s advertising rules.  Rule 4-7.6(d).  What are those substantive requirements? 

The substantive rules provide, among other things, that an attorney website can’t “describe or characterize the quality of legal services being offered.”  Rule 4-7.2(c)(2) 

As Prof. Lidsky goes on to discuss, there are some serious First Amendment problems with this rule.

There are times when I wish I'd gone ahead and taken the Florida bar exam when I moved here. This is not one of them.

(In order to discourage retirees from trying to keep a hand in when the move here, the state of Florida has zero reciprocity with other states, and makes it quite difficult for those of us who have practiced elsewhere to actually apply to take the exam — we need to list every client we ever represented, and try to get a letter from them, something that would be very hard for a former associate in a large firm, who touched many files, mostly with foreign clients. For more as to why I never got around to it, see If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask.)

I imagine this new Florida rule will not be a problem for pseudonymous Rumpole so long as no unmasks him. But will it in any way stifle David O. Markus?

Posted in Law: Practice | 1 Comment

Things That Make Law Practice Fun

It must be really fun to start a stiff legal letter on the subject of whether it is libel to ask if a model missing part of a hip might possibly have been photoshopped with the words, “We are counsel for Happy Mutants, LLC…”.

Good letter, by the way. More on the topic of photoshopping models at Demi Moore's lawyers threaten Boing Boing over photo analysis blog post.

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The University Of Miami School Of Law Announces Foreclosure Defense Fellowships

The Law School just issued this news release:

The South Florida community is ground zero for the national foreclosure crisis. In response, the University of Miami School of Law has created Foreclosure Defense Fellowships that will enable newly minted lawyers to give free help to local residents caught in the foreclosure crisis. The School of Law is one of the first schools in the nation to create a program of this kind in response to the crisis that is sweeping the country. Recent UM graduates will acquire real-world work experience and address a serious need in the community at the same time.

The foreclosure crisis is overwhelming the Miami-Dade legal system. One in every 28 homes in Miami-Dade County is in a state of foreclosure. Last year 56,656 foreclosures were filed in Miami-Dade County alone. Almost a third involve “owner-occupied homestead property” (residential homestead mortgage foreclosures) and a very large number of owners are unrepresented. The UM Foreclosure Defense Fellows will work to fill the gaps that this legal crisis has created within the South Florida community.

“These Fellowships engage the Law School and its recent graduates in a difficult but rewarding process that serves a great public need,” said Dean Patricia D. White.

Eight UM Law graduates were the winners of these fellowships. Six fellows — Siobhan Grant, Yolanda Paschal, Matthew Weintraub, Jaclyn Gonzalez, Francisco Cieza, and Bradley Shapiro — will work for the Legal Services of Greater Miami, Inc. (LSGMI). Two additional fellows — James Duffy and Berbeth Foster — will work at the Legal Aid Service of Broward County, Inc. They will receive a limited grant totaling $10,000 in exchange for working at least three days a week for 27 weeks, commencing in early October. The fellows will receive intensive training on October 2nd at a foreclosure workshop hosted by the UM School of Law, featuring April Charney, JD ’80, a consumer lawyer and nationally recognized foreclosure defense expert. The workshop will be held at the Whitten Learning Center on the University of Miami campus from 8:00 a.m. to 5:00 p.m.

In addition, three students from the School of Law’s LL.M. in Real Property — Jessica Davis, Dushyant Amish Jethwa, and James Walter — will inaugurate a clinical track in that program by providing 15 hours per week of free foreclosure defense representation. The LL.M students will work under the supervision of local lawyers who also will be working without pay. These fellows will be placed at “The Foreclosure Project,” created by Richard Burton, JD ’74, which provides free legal representation to homeowners facing foreclosure in Dade and Broward counties.

UM law professor A. Michael Froomkin describes how he came to create the Foreclosure Defense program: “Last fall, I was standing in front of the courthouse one evening talking to a local lawyer who was telling me about the thousand of foreclosure cases stacking up in the judges’ chambers, many with unrepresented parties who had valid defenses that were not being made because they didn't have a lawyer.” Froomkin recalls that the lawyer stated, “‘Someone should do something.’ And, right there, I decided that if no one else would do it, that it would be me.”

About Legal Services of Greater Miami

Legal Services of Greater Miami, Inc. provides innovative, effective legal services to help thousands of individuals in Miami-Dade and Monroe counties each year, creating a positive impact on the community as a whole. LSGMI is the largest provider of broad-based civil legal services for the poor in Miami-Dade and Monroe counties, and is recognized in the state and in the nation as a model legal services law firm. Its diverse staff provides clients with legal services in three languages from its main, regional and neighborhood offices.

According to Carolina Lombardi, LSGMI Senior Attorney who oversees the Mortgage Foreclosure Defense Project, “There is an unprecedented need for legal assistance for homeowners facing the loss of their homes through foreclosure and we cannot help everyone who asks for our assistance. Legal Services of Greater Miami, Inc. is thrilled to have recent UM law school graduates working with us so that we can provide legal help to more homeowners.”

Despite being staffed by six full time staff attorneys, LSGMI is only able to represent a fraction of the low income home owners in Miami-Dade County who are facing the loss of their family home. The addition of the University of Miami School of Law Mortgage Foreclosure Defense Fellows will expand the number of low income homeowners LSGMI is able to assist while at the same time training new attorneys to address this serious community need.

About Legal Aid Service of Broward County

Legal Aid Service of Broward County, Inc. (LAS) has provided free civil legal services to the poor in Broward County for over 35 years. In 2005, a regional office in Collier County was opened to serve the civil legal needs of the disadvantaged population in Collier County. Despite having an experienced, culturally diverse staff of 60, including 21 attorneys in Broward County, LAS can only meet the needs of 40% of the clients who seek their help.

“In Broward County, we have seen over a 600% increase in foreclosure case filings since 2006,” said Legal Aid Service of Broward County, Inc. Director of Advocacy Shawn Boehringer. “Even before the foreclosure crisis, we had insufficient resources to address foreclosures. We certainly have not seen a 600% increase in funding to assist clients since 2006. We applaud Professor Froomkin and UM Law School for starting this pilot and we are looking forward to working with the talent they have provided us. UM is a great law school, and our clients will benefit tremendously from the assistance the fellows will provide.”

Posted in Econ & Money: Mortgage Mess, Law: Practice, Miami, U.Miami | 6 Comments

For Students About to Take the Bar Exam

Ilya Somin has A Modest Proposal for Bar Exam Reform:

Members of bar exam boards, such as the Virginia Board of Bar Examiners and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general). And they should be barred from ever holding those positions again until – you guessed it – they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Prof. Somin's point is that the bar exam as constituted is pretty silly. And he's mostly right: the bar exam tests only a small fraction of what lawyers need to know, much that they don't need to know, and even more that they don't need to have memorized. We all forget lots of it quickly. I know that I couldn't pass the New York bar exam today without some serious review — I've forgotten huge swaths of estate, family and criminal law, not to mention most of the details on New York's CPLR. On the other hand, I've learned huge swaths of things not tested on any bar exam, including federal administrative law, trademark law, and of course internet law. Does that make me a bad lawyer or a specialist?

Unlike some, however, I don't oppose the idea of a bar exam in principle. I think there's much to be said for ensuring that all lawyers have a common foundation. There may also be something to ensuring that people who practice in a given state are sensitized to the peculiarities of local law, although I'm less certain about the need to enforce that with an exam. The problem is that the bar exam's choice of subjects is arbitrary and archaic, and the testing somewhat picayune as well.

To those about to undergo our profession's hazing ritual, good luck.

Posted in Law: Practice | 3 Comments