‘Do’s and ‘Don’t’s – Litigator Edition

There’s one place in the legal field where the economy can’t scale back the use of lawyers: the courtroom. If you’re in one, you need one. As corporations and other big-spending clients trim their legal bills, many attorneys are finding a renewed purpose as litigators.

Litigator

Litigators are time-honored and respected positions in the law. As such, through the long history of the profession, a number of often-observed, yet infrequently discussed, traditions have naturally developed in the field. Those who have moved into litigation, or are considering it, will need to quickly get up to speed on these customs in order to be effective. As experienced litigators who have tried more than a half-dozen cases, we here at Laws For Attorneys are well-versed in the unspoken conventions that define the litigation culture. Below we address commonly observed “do”s and “don’t”s that are now well-established among trial lawyers.

  • Do – Make strong, emphatic points.
  • Don’t – Use profanity unnecessarily. Some profanity will usually be appropriate, but overuse can sometimes have the opposite effect. The most effective courtroom advocates instinctively know when a strategic “f-word” will strengthen the point, but know those occasions may be as rare as once every five to ten minutes.

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New Guide Takes Legal Citations to the “Xtreme”

Move over, Bluebook. ALWD, step aside — or get shoved out of the way. Like it or not, there’s a new legal citation protocol in town: the “X-Ref.”

Short for Xtreme Legal Reference and Citation Guide, the X-Ref hopes to shake up the staid norms of legal citation, which, for the past decade, have been set primarily by the Bluebook, to a lesser degree, the Association of Legal Writing Directors Citation Manual. Calling their new publication “edgy” and “modern,” editors of the first-edition X-Ref say the field is ready for a revolution.

Possible document which may be cited

“This isn’t your grandfather’s legal-citation guide, or standards that are going to be used by some old judge,” said editor Philip Dramm. “The X-Ref is for attorneys looking to shoot their memos full of adrenaline. It’s basically legal citation on steroids.”

X-Ref overhauls every element of accepted style, replacing them with a mix of artistic, noncomformist, and unconventional formats. Some of the changes are drastic, most notably the total replacement of numbers with Roman numerals. Other changes are very specific, such as using lesser-known fonts when citing foreign legal sources; when citing New Zealand courts, for example, the X-Ref requires use of the “Shruti” font.

Most source abbreviations themselves have been modified to be more “hip,” Dramm explained, so that Treasury regulations previously denoted as “Treas. Reg.,” are, under X-Ref, shortened to the less formal “T-Regz.”

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You Can Rely On Trusts

We here at LawsForAttorneys have received many questions about our opinion on the wisdom of establishing a trust. We can address this issue quickly and easily: Trusts are always of benefit to both parties, and are always a good idea.

God Trust

Simply, creating a trust with another gives rise to a legal obligation to believe what they say. Trustees owe a duty of reliance to each other, in which they must fully act without reservation based on any information conveyed by the other party. In many ways trusts resemble familial bonds, and, arguably, brotherly bonds, in some instances.  Trusts are governed by trust documents, in which the signers agree to accept everything the other says as true. Trusts can also be formed through oral declaration or a court order. For a trust to be valid, there must be 1) the intention to enter a trust; 2) clearly identified subject matters as to which the parties are to be blindly believed; 3) entities for which the trusted parties vouch (and are thus also are trusted) that are specified.  After the formation of a trust, trustees have many rights and responsibilities. Breaching a trust, by not believing what another trustee has made a representation on, can lead to legal liability.

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Update: LexisNexis Converts Archives for Twitter

We earlier commented on the recent practice in some courts of delivering their opinions through Twitter, abiding by the 140-character post limits to drastically shorten the lengths of their rulings. Apparently the idea isn’t just appealing to courts: Yesterday, LexisNexis publicly announced that it would be editing its entire online archives of court decisions for publication solely through Twitter.

Wilhelm Lexis

“I don’t think people realize just how much stuff there is that judges say,” noted Ralph Verspaccio, CEO of LexisNexis. “It’s just so many words. Who wants to read all that? Nobody. We’ve surveyed our users and found that most find it a waste of time to go through pages and pages of worthless commentary that was most likely written entirely by a 26-year-old law clerk anyway.”

Within hours of the announcement, some of the country’s most important cases were successfully processed and appeared on the @LexisNexisCases Twitter feed. Marbury v. Madison, for example, read as: “Mrbry has legl rite 2 commissn bt we cant delvr bcaus Judicry Act invald: unconstitutnal. We hve judicl rview: Emf@clly prvnce + dty of Judicl Dpt. 2 say wht the law is.” Verspaccio said that it would take weeks to convert every reported case in the LexisNexis database.

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Twitter Helps Erase Courtroom Backlogs

Courts across the country have been eager to embrace computer-driven innovations in order to increase efficiency and cut down on costs. One aspect of courtroom procedure that takes considerable time and resources, however, has changed little through the years: the writing of judicial opinions. However, now, with the meteoric growth of Twitter, a social networking and so-called “microblogging” service, courts are taking advantage of a new method of delivering their opinions that has significantly increased the deliverance of appellate verdicts.

The U.S. District Court of New Mexico was the first to replace its traditional publishing of opinions with a Twitter feed, noting that the service was completely free and more easily accessible by the public. Other benefits became quickly apparent: Because Twitter restricts entries to 140 characters, judges are forces to convey the main point of their decision concisely and directly. And considering the time it takes to craft 140 characters, as opposed to opinions that can sometimes stretch for more than 50 pages, judges have had more time to hear and decide cases.

Judge

For example, the New Mexico District Court recently heard a case in which an individual convicted of narcotics possession claimed his right to privacy was violated when police photographed the drugs through his car window while his vehicle was parked at a bowling alley. Reporting its decision of Granderson v. Town of Mountainair, 2010 Fed. TWITTER 273 (D.N.M. 2010), the majority, loggged in as @D.N.M.fedcourt, wrote: “Dfendnt hd no legitimit xpect8ion of privcy; cops can phtograf insde car when prked in pblic. Not unreasnble srch & seizr = con10ts clrly visble thru windo 2 passrsby.”

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New Alternative Teaching Methods Taking Hold at Law Schools

Anticipatory Breach

As their numbers continue to grow, law schools are increasingly looking for ways to separate themselves from the competition. And, given recent debate about the utility and effectiveness of the Socratic Method, some schools have experimented with teaching styles that may attract students looking for a different approach.

One notable change has been the introduction of the Rorschach-inspired “Legal Blot Method” founded by Prof. Hazeldorf at Franklin Parker Law Center. The Legal Blot Method utilizes collections of vague, random legal phrases on which students project their own ideas about what legal concepts mean. What a student thinks he or she understands about nebulous legal abstractions such as “anticipatory breach,” “detrimental reliance,” or “adverse possession” is thus necessarily a subjective, individualized conclusion. The Legal Blot Method has been criticized by traditional legal professors as being unclear about what legal concepts are actually being taught. Most law students who have undergone the instruction, however, have expressed approval that the Method precludes ever giving a wrong answer.

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Shock permeates legal world as Pierson v. Post overturned

In what can be billed as one of the most surprising decisions handed down in recent memory, the ruling in Pierson v. Post, one of the nation’s oldest property-law cases, was reversed this week by the Supreme Court of New York. The court’s reconsideration of the ruling was prompted by new evidence arising from an in-depth autopsy analysis that was performed last month on the remains of the fox at the heart of the famed case.

Hendrik Pierson - A distant relative of Jesse Pierson

The original dispute arose in 1805 when Lodowick Post, a fox hunter, sued Jesse Pierson after he allegedly killed and carried away a fox that Post had been pursuing. The original decision found in favor of Pierson, holding that he could keep the dead fox because Post did not have control over the beast.

However, earlier this summer at the request of Broderick Post, great-great-great-grandson of Lodowick Post, the remains of the fox were exhumed and analyzed, at a personal cost of about $1 million. The long-overdue autopsy found conclusive evidence that, by the time Pierson had discovered the fox, it had already died of exhaustion from Post’s pursuit. Post then petitioned the court to have the case reopened.

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