Intellectual property rights
22
A copyright doesn’t protect an idea.
Only the specific, tangible expression of an idea, not the idea itself, can be protected by a copyright. If a screenplay is copyrighted, this prevents others from copying or otherwise using the screenplay or significant portions of it. It doesn’t prevent others from writing another screenplay or making a movie using the same or similar ideas. Although it may seem unfair that the law allows others to use your ideas, it is in the best interest of society to do so, for it encourages citizens to act on, rather than sit on, new ideas.
23
Most areas of interest have a corresponding area of law practice.
Law is a profession of specialties. Attorneys work in diverse fields including medical law, sports law, family law, art law, drug control law, water law, Native American law, prison law, media law, and dozens more.
24
Hire a lawyer, even if you are one.
Expertise: Lawyers are specialists. Being a good lawyer in one area of the law is rarely a satisfactory substitute for hiring a specialist who intimately knows the relevant law, unique terminology, and best expert witnesses for a particular type of case.
Objectivity: Developing an effective litigation strategy calls for viewing a case from the outside, without anger, desire for revenge, or other emotional distortions.
Showmanship: Hiring a lawyer tells the other side you are serious about your complaint, or about defending yourself against a complaint, giving you a stronger position in any settlement negotiations.
25
The law creates fictional characters.
The eggshell (thin skull) plaintiff: A defendant can be liable for a plaintiff’s unforeseeable and uncommon reactions. For example, if one negligently scrapes a hemophiliac, he may be liable for all the plaintiff’s injuries even though the same harm to another person would have been minor.
The fertile octogenarian: Probate law (wills, trusts, and estates) assumes a woman is capable of giving birth until she dies.
The corporation: An abstract entity that, like a person, may own property, enter into contracts, sue and be sued, be held liable under civil and criminal law, and even have some constitutional rights.
The reasonable person: An imaginary individual placed in the circumstances of a litigant or other party at the time of a given action. For example, in a negligence case, a reasonable person acts sensibly and without undue delay.
Parties that often have standing
26
Corporations have standing. Trees do not.
A plaintiff has standing if it is the proper party to request that the court hear and rule on a legal controversy. Three overlapping requirements generally must be met:
1. The plaintiff must have suffered or is imminently likely to suffer an injury. One cannot sue a logging company on behalf of an injured tree, or the federal government over a general objection to its misspending of monies.
2. The defendant must be the cause of the plaintiff’s injury. A plaintiff lacks standing if its injury cannot be traced to the defendant’s behavior or if it resulted through a third party not named in the suit.
3. The injury must be redressable through the court. A favorable ruling from the court must be likely to benefit the plaintiff. The court cannot act, for example, if the plaintiff seeks redress from a party not involved in the suit.
27
“A ship has a legal personality, a fiction found useful for maritime purposes…. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life…. The voice of the inanimate object, therefore, should not be stilled.”
—WILLIAM DOUGLAS, dissenting opinion Sierra Club v. Morton (1972)
Denzel Washington as attorney Joe Miller in Philadelphia (1993)
28
Explain it to an eight-year-old.
The “bones” of a case—its essential facts and structure, and the argument you are making in support of your position—should be understandable in simple terms. If you can explain it to a child, you can explain it to a jury.
29
The theory of a case
The theory of a case is the single most plausible storyline of a litigating position. It is the core around which all points of a case are organized; the idea that remains standing should all else be taken away. It is at once a logical and emotional center: it is consistent with every piece of evidence the judge or jury will accept, and it considers the subjective positions taken by the litigants and the perspectives likely to be taken by the judge and jury. Ideally, a theory is so clearly the core of one’s case that it is implicitly appended to every point one makes: “… and that is why my client…”
There should be only one theory, consisting of a few sentences, which will always tell you where you are and where you need to go when in the midst of an oral argument, deposition, or research.
30
Insight doesn’t arrive head-on.
Be suspicious of the person who sizes up a new situation very quickly, claims understanding, and stakes out an ironclad position. Insight usually requires long periods of discussion, research, analysis, rationalization, and counter-argument, and it rarely arrives while attacking a matter directly or on a first pass. If one occasionally is able to quickly understand a complex matter, he or she is far more likely to quickly misunderstand it.
31
“… I made three arguments in every case. First came the one I had planned—as I thought, logical, coherent, complete. Second was the one actually presented—interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.”
—JUSTICE ROBERT H. JACKSON, “Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations,” 37 ABA Journal 801, 803 (1951)
An attorney may approach the witness only with the judge’s permission.
32
Give your witnesses a home base.
It can be difficult for a witness to remain calm and composed if the opposing attorney asks questions for which the witness has not prepared, uses different wording than that expected, or asks a series of questions that leads the witness into suggesting a position he or she does not believe is true.
When preparing witnesses for trial, identify a home base from which testimony is to emerge. A home base is not a rehearsed answer, but a core position inherent in a witness’s relationship to and knowledge of the case. Although it may be different for each witness, each home base grows out of and directly supports the case’s central theory.
33
A hostile witness can be helpful.
Friendly witnesses are those called to give testimony in support of one’s own case. Hostile witnesses are called by the opposing party. An examining attorney may ask leading questions—those calling for yes/no responses—only of the opposing party’s witnesses. However, if a friendly witness is evasive or uncooperative, the examining attorney may request permission from the judge to treat the witness as hostile. If granted, the attorney may ask leading questions, allowing the attorney much tighter control of the examination.
34
Avoid asking a question in court if you don’t already know the answer.
A trial is not the time and place to be surprised by the answer to a question. It’s better to be surprised during pretrial discovery.
When an answer to a question would be quite obvious and favorable to your case, it is sometimes effective to not ask it at all, and to leave the general awareness of it hanging in the courtroom air.
35
Ways to discredit a witness
Bias: Show that the witness is testifying under an immunity agreement or plea bargain, has a personal relationship with someone involved in the case, or is being paid for expertise.
Contradiction: Show that a
witness’s testimony is inconsistent with that of other witnesses or evidence, is contradicted by previous statements by the witness (e.g., deposition), or is selective or incomplete.
Character: Show that the witness has been dishonest in other statements or actions or has criminal convictions suggesting dishonesty.
Limitations: Show the witness’s view was obstructed, or that witness has abnormal memory due to mental incapacity or intoxication.
Expertise: Show that credentials are inadequate or not specific to the subject, or that the purity of the evidence evaluated by the expert is in question.
36
Witnesses were once “suits.”
Before the development of a coherent legal system in England in the 12th century, a plaintiff substantiated a claim by bringing to the local decision makers a suit—a group of witnesses who supported his position against a defendant. Thus a plaintiff literally “brought a suit.”
37
Put some length in your briefs, but keep your motions short.
A motion is a written or oral request to the court, made before, during, or even after a legal proceeding, to rule on a specific issue, such as to disallow certain testimony, dismiss charges, or request a new trial. Motions should be kept short and simple so the court may understand what is being asked of it. The place to elaborate on a motion is in a brief—a persuasive written document filed with the court, setting forth one’s legal and factual arguments. A brief is a lawyer’s only way, other than oral presentation, of arguing to the judge.
38
Research isn’t finished until the deadline arrives.
Research is a primary, not preliminary, activity. Through research, one finds the law that supports an argument, that may argue against it, and that may mitigate the counter-arguments. New precedents emerge constantly, up to and concurrently with the presentation of a closing argument.
With regards to Bob Berring
The IRAC sequence of argument
39
Writing isn’t recording your thoughts; it’s thinking on the page.
A well-constructed argument rarely, if ever, resembles what one started with. Writing effectively isn’t recording the argument one wishes to make; it is a process of discovering what one’s argument needs to be. Through writing, thinking, researching, rewriting, rethinking, and rewriting again, an argument is discovered and clarified.
40
“Every judgment I write tells a lie against itself…. The actual journey of a judgment starts with the most tentative exploratory ideas, and passes through large swathes of doubt and contestation before finally ending up as a confident exposition purportedly excluding any possibility of error. The erratic, even contradictory pathways, are hidden.”
—ALBIE SACHS, Former Justice, Constitutional Court of South Africa
Skills for a lawyer
41
Good argument trumps good facts… if you’re a student.
Lawyers need good facts, good law, and good arguments. Students benefit from all three, but above all must develop and demonstrate the ability to make good arguments. Whether working from good or bad facts, or good or bad law, students need to show they can use the resources they have to convincingly support or refute a position.
The Toulmin Model of Argument
42
Don’t try to prove you are objectively right; show that your position is preferable to the alternative.
It is always possible to make at least some arguments for or against a legal position. An argument requires logic, but legal argument is not a purely logical form of argument that promises a universal, absolute conclusion. Rather, it is a practical form of argument that aims to establish one claim as more probable or reasonable than another.
43
If the law is in your favor, pound the law. If the facts are in your favor, pound the facts. If neither is in your favor, pound the table.
Few judges will rule against clear precedent. When relevant law favors your position, identify it and return to it again and again. If the law does not clearly favor your argument, emphasize the facts of the case most likely to engender sympathy for your client, so the judge or jury might favorably interpret any gray areas in the law.
And on second thought, never pound the table.
44
Always be the most reasonable person in the room.
Lawyers are officers of the court, as are judges, bailiffs, and other court personnel. All are obligated to safeguard the proper comportment of the judicial process. Projecting that one is careful, knowledgeable, thoughtful, and considerate is more important than projecting that one is to be feared. Even if others act poorly, you cannot use it as a reason to act poorly yourself.
45
Make a logical argument.
Deductive logic: usually works from broadly accepted truths toward demonstrating a truth in a specific situation, although more properly it is any argument in which the premises guarantee that their logical outcome is a truth.
Inductive logic: tends to work from specific examples of truth toward demonstration of a larger truth, but can be any argument whose conclusion, while not guaranteed, is a likely or highly probable outcome of the premises. Successful inductive reasoning requires a convincingly large sample size.
46
Tell a compelling story.
A proper argument is not driven by emotion, but if an argument lacks an emotional component it might not connect with a judge or jury. Convey facts accurately, but also set a scene so the audience can make an emotional connection to events and characters. Emotions attach to details, not to abstractions and generalities.
With regards to Bill Fernholz
Components of a good precedent
47
Let your citations argue for you.
The strength of a legal argument lies in its grounding in past legal arguments that have been acknowledged in court rulings as sound. In legal writing, every sentence, other than those containing one’s own thoughts and making no inference from a past case, should be followed by a citation referencing a source.
48
Master the transitions.
Addition: And, Also, Another reason, Besides, Equally important, Finally, Furthermore, In addition, In other words, Moreover, Next, Similarly
Alternative: Alternatively, Although, But, Contrary to, Conversely, Even though, However, In contrast, Nevertheless, On the other hand, Regardless, Still, Though, Yet
Analogy: Again, Also, Analogously, Likewise, Similarly
Introducing an example: For example, For instance, In particular, Namely, Specifically, That is
Establishing a causal consequence: As a result, Because, Consequently, It follows, Since, Then, Therefore, Thus
Signaling a concession: Although, Granted, It is true, No doubt, To be sure
To signal one is about to speak about a client’s case: Here, In the case at hand, In the present matter
Concluding: Accordingly, All in all, As a result, Consequently, Finally, Hence, In short, In summary, Lastly, Therefore, Thus, To summarize
49
Sometimes passive voice is stronger.
Statements made in the active voice tend to convey direct connections and are usually the more effective form of argument. Passive voice suggests incidental connections, and usually sounds weaker and less convincing. However, there are occasions when passive voice is the more effective form—such as when conveying an incidental connection is precisely one’s point.
50
Something reasonable is reasonable, not “not unreasonable.”
It’s fine to count things; you don’t have to enumerate them. If something happened at that point in time, it happened then. If an event occurred as a result of the fact of x, it occurred because of x. If the alleged perpetrator was observed carrying an unidentified implement on his person in the course of events ensuing subsequent to a crime, the defendant carried something after a crime.
The Recency Effect
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nbsp; 51
Stop talking when you’ve made your point.
Begin and end every argument or talking point with the thing you most want the listener to note or remember. Early points tend to be remembered because they aren’t yet competing with all the others to come. As one continues to speak, each new word or idea presented to the listener competes for memory space with all the previous words and ideas.
101 Things I Learned in Law School Page 2