Harmon Wray, advocate for peace and justice, died yesterday. I had the privilege of attending church with Harmon for several years and valued his wisdom and commitment to justice.  Harmon was co-author of Beyond Prisons: A New Interfaith Paradigm for Our Failed Prison System last year.  He was also instrumental in setting up a Vanderbilt Divinity School class that meets at Riverbend Maxium Security Prison here in Nashville.

You can watch and hear Harmon in a peace video here.   In the very best Southern accent, he makes these profound statements that we should all memorize: 


Peace and justice. 

Ron Miller at the Trial Lawyer Resource Center discusses the “sponsorship” rule for direct examination.  Like Miller, I have always heard that it is better to address harmful facts in direct examination ("sponsor" them) than to let opposing counsel bring out those facts on cross.  But  Robert Klonoff and Paul Colby, in their book Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials, disagree.  According to Miller, their “theory is that you actually lose credibility by bring up your own weaknesses and that the cross examining lawyer often looks petty and nitpicking by bring up much of what you felt compelled to get out the sting of in your direct.”   

Like Miller, I agree with the “sponsorship” rule, but with some balance and common sense.  Klonoff and Colby are right that a lawyer could look “petty and nitpicking” by bringing out all the harmful facts about a witness on direct examination.  So keep in mind that you don’t have to bring out all the harmful facts on direct. 

In his post, Miller also directs readers to Personal Injury Help Center that has sample direct and cross examination outlines.  I have not reviewed the outlines enough to recommend them, but they are certainly a good place to start and get ideas.  Check them out here. 

The Wall Street Journal Law blog has a post this week about a proposal to split the Ninth Circuit.  It quotes an op-ed in the Los Angeles Times by Vanderbilt Law School professor Brian Fitzpatrick: 


Fitzpatrick’s position makes sense and he is certainly not the first one to suggest that the Ninth Circuit should be split.  But I want to know why the first comment has nothing to do with the Ninth Circuit, but rather a warped comparison of California and Tennessee? 

Above the Law has an interesting post about a law student’s experience at a law firm’s recruiting event.  The student was offended by a partner and sent an email to the law firm. The student then circulated the email to her friends and the email is now on at least one list serve. 

You can read the email at Above the Law and should also read the comments.  Most of the comments suggest that the student was naïve and overly sensitive.   The email and comments reminded me that I have lost the idealism and righteous indignation of law school.  I generally think that means I have matured, etc., but some idealism is not such a bad thing. 

Stephen Seckler lists the Five Myths about going to law school. Before you read it, try to guess what the five myths are. 

Camel’sBack Films has released a documentary on lawyers:  “A Lawyer Walks into a Bar.”  According the film’s website, this “is a lurid tale of lawyers and lawsuits and America’s fascination with both.  To sue or not to sue, that is the question.”  The documentary “explores the influence of the law and its practitioners on American culture, while following six characters as they do whatever it takes to become lawyers themselves.” 

The film is showing in Texas and a few film festivals around the country, but I hope it will make it to a theater in Nashville soon.

Thanks to Suzanne Dupree Howe at Counsel to Counsel. 

There are many dangers in litigation, but death is usually not one of them.  The WSJ blog reports on a wrongful death action in Los Angeles that arose during a trial.  According to the complaint and the WSJ, the plaintiff’s decedent “tripped and fell over electrical cords that were attached to equipment set up by lawyers” at a Los Angeles law firm.  Be careful! 

 

Appellate Law and Practice has “a list of books that will be helpful to modern lawyers that are now in the public domain, and Google has scanned in, in full.” 

On a slightly related topic, I was looking for a gift for a young lawyer and remembered that someone gave me “The Art of Cross Examination” by Francis L. Wellman.  when I was starting to practice.  I stil have the book and pull it out every now and then to re-read. 

Even though it was first published in 1903, it is remarkably fresh and useful.  Wellman’s introductory section includes this discussion – and remember this is 1903:


Except for the reference to 10,000 cases a year, you would think this was written just recently!

The book has about 250 pages of discussion and analysis of cross-examination techniques and then concludes with cross-examinations from 26 cases.  Great stuff.  I highly recommend it. 

How many times have you used a yellow legal pad?  How many times have you wondered who invented the yellow  legal pad?  Here is the story. 

Judicial clerkships were the best jobs I ever had.  Katherine McDaniel, a 2006 Yale law school graduate, has started the Clerkship Notification Blog that may help law students find those great jobs.  Here is what Katherine has to say about the purpose of the blog: 

The goal of this blog is to provide a forum for law clerk applicants to share information regarding their clerkship applications. By using the "comments" function applicants can easily find and share information as to which judges have started calling applicants, which judges have started making offers, and which judges have completed their hiring. Posting is entirely anonymous (though you are, of course, free to sign your name).

If you have or need information on clerkships, check out this blog.  

Many blogs have tips for taking deposition but The Practice blog has some tips for lawyers who are defending depositions.  Jonathan Stein lists five reasons why you should not “read your newspaper or respond to messages on your crackberry, er, blackberry, during a deposition.”    You can read them here. 

Like Jonathan, I worry if you need reasons. 

The Wall Street Journal and the WSJ Law Blog have recent articles about new ways to protect e-mail.  One of the products, from Echoworx Corp., equires the recipient to answer a predetermined question (such as “Where did we first meet?”) before they can open the email.  With software from Kablooeymail, your email can be timed to self-destruct after a period of time. 

Kablooeymail is free, but it is beta and comes with lots of disclaimers. If anyone tries these products, let me know what you think. 

The Practice Blog has some helpful deposition tips.  They include

• Know your state and local rules. And, maybe more importantly, know your local customs.

• Ask open ended questions and LET THE WITNESS TALK. This includes taking a pause after you think the witness is done talking. People want to fill silence and leaving a few seconds of silence may get the witness talk to more and provide you with information he/she may not have otherwise said.

•  Ask the witness who cannot remember if there are any documents that would refresh his/her recollection.

•  

I would add this to any list of deposition tips:   Listen to the answer. 

 

Rees Morrison at Law Department Management has interesting thoughts on the “futility of collecting work-product from outside counsel.”   He points out (correctly, I think)  that the “well-intentioned projects”  for corporate law departments to compile electronic versions of the documents that outside counsel produce “languish because someone must retrieve a useful document, get it to the law firm, and the law firm must make use of it for there to be any gain. Each step in that chain diminishes the likelihood that it will happen, with the net effect that the promise rarely materializes.”

I agree. 

Dealbreaker.com has an article that should interest a lot of lawyers:  “Crackberry: You Really Might Be Addicted.”  Enough said.  You can read the article here. 

Here are Ellen Ostrow's ten rules for "How To Lose A Client in 10 Days."  Read more about the rules here. 

The Empircal Legal Studies blog reports on the new Harris Poll of most trusted professions and occupations. 

Yes, lawyers are near the bottom, with only 27% of Americans saying that they would trust us to tell the truth.  We are joined at the bottom by actors (26%), stockbrokers (29%), trade union leaders (30%) and opinion pollsters (34%).

But the good news is that lawyers are up three percentage points in the same poll in 2002.  Accountants showed the largest increase in the percentage of Americans who trust that they tell the truth, moving up 13 percentage points from 55% in 2002 to 68% in the current poll. 

We should take all of this with a grain of salt because “a 54 to 34 percent majority of the U.S. adult public does not believe that pollsters generally tell the truth.” 

Check out the poll results here. 

One of the joys of having a blog is that you can tell the world about the things that bother you. I saw lots of that this weekend as I read through my list of blogs. 

At Begging the Question, an anonymous writer listed his or her “concert pet peeves.”   I guess I have a pet peeve about people who complain without identifying themselves, but the list is fairly amusing.  I note, however, that rock concerts are for the young and, after a certain age, everything about a rock concert is potentially annoying. 

I much prefer Charles Petit’s pet peeves at Scrivener’s Error.  Even though I don’t share those pet peeves (and even disagree with the grocery story issue), I felt a sense of catharsis from just reading Charles' complaints.  Parking lots and opinion pagination and drunk students should be on everyone’s pet peeve list. 

As for me, I have very few pet peeves right now except that the summer is coming to an end and I can already tell that the days are getting shorter.   Wait, I do get very annoyed with businesses that do not return phone calls!  Is it just me, or is that happening more and more these days? 

A couple weeks ago, I mentioned an article by Dan Hull about professionalism and the obligation to represent clients zealously.  Put simply, the client comes first.   

The Legal Writing Prof Blog referred to a recent court order that reminded me of two rules from Hull’s article.  Rules 2 and 5 state: 

2. If you can develop an amicable working relationship with opposing counsel, please do so. If you can do this, it will save us time, money and goodwill. This is also true of your relationship with government attorneys who represent administrative agencies in regulatory matters.

5. If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us -- the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.

The order addresses a motion to compel opposing counsel to go to lunch with the moving party’s counsel.  (I don’t have one of those motions in my form file.)  Read the order and see what you think, especially in light of Hull’s article. 

The WSJ Law Blog points to a “scalding, no-holds-barred article penned for the Los Angeles County Bar Association” by Judge Victoria Gerrard Chaney.  Judge Chaney informally polled her colleagues on the bench and got an “earful” of pet peeves.  Judge Chaney advises lawyers not to think that the pet peeves are directed only toward others.  “You may perceive your opponents as the only ones who act in an aggravating manner, but perhaps you are not immune from being an annoyance to judges and the court staff.”  

Here are some of the high points of the article: 

• Tardiness:  “Please be on time.  Your lateness is an inconvenience for your fellow attorneys, courtroom staff, and the court.” 
• Incivility:  “We judges are not interested in a blow-by-blow description of an acrimonius exchange between counsel.  We are ready to help parties solve a legal problem.  Judges do not seek to expend time and energy brokering a treaty to end internecine warfare between counsel.” 
• Lack of brevity:  “How can a reader ferret out the important points of your case if your writing wanders in circles?” 
• Insufficient preparation:  “Little is more frustrating to a judge than asking an attorney a question only to be greeted by a blank stare.”

Read the rest of the article – it’s amusing but we should not be surprised that these infractions irritate judges.   For example, did you really think that no one noticed you opening the water bottle and taking a big gulp? 

As usual, the WSJ Law Blog has interesting comments.  Check them out here.   And send some comments my way if you have your own pet peeves.