Category Archives: Law: Practice

Robin S. Rosenbaum Nominated for District Court

Congratulations to Magistrate Judge Robin S. Rosenbaum (UM ’91) whom President Obama has just nominated for the United States District Court for the Southern District of Florida

From the official White House announcement:

Judge Robin S. Rosenbaum is a United States Magistrate Judge for the Southern District of Florida, a position she has held since 2007. From 1998 until her appointment to the bench, Judge Rosenbaum was an Assistant United States Attorney in the same district, where she served as Chief of the Economic Crimes Section in the Fort Lauderdale office beginning in 2002. Before joining the United States Attorney’s Office, Judge Rosenbaum clerked for Judge Stanley Marcus on the United States Court of Appeals for the Eleventh Circuit in 1998, worked as a litigation associate at Holland & Knight from 1996 to 1997, and served as staff counsel at the Office of the Independent Counsel in Washington, D.C. from 1995 to 1996. She began her legal career as a trial attorney at the Federal Programs Branch of the United States Department of Justice from 1991 to 1995. Judge Rosenbaum received her J.D. magna cum laude in 1991 from the University of Miami School of Law and her B.A. in 1988 from Cornell University.

Judge Rosenbaum is also one of our Adjunct Professors, teaching a course called “Writing Weapons in the Litigator’s Arsenal: Motions to Dismiss Under 12(b)(6).”

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A Motion With Balls

This summary judgment motion must surely be one of the all-time classics.

I wonder if the lawyers told the clients that they had a slam dunk?

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Good Question

Brigid Crawford asks, What Does Marital Status Have to Do with Fitness to Practice Law?.

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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.”

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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.)

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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?

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