Wise Tips on Brief (and Opinion!) Writing

In the Fall 2010 issue of the ABA Journal of the Section of Litigation (Vol. 37, No. 1), retired Florida judge Larry A.Klein provides much excellent and insightful advise on brief writing.  As decision makers, we've all been presented with some great briefs and some awful ones and, as Judge Klein notes, it is sometimes even very qualified, well-regarded counsel that make the following mistakes.  Moreover, the tips are so perfectly suited to all legal writing that I have made a number of notes to myself to watch out for in the future.

The "Reasonable Person" -- a Product of Social Mores, Not a Mathematician

Micheal J. De Vinne, lawyer and historian, recently wrote a quite delightful piece tracing the evolution of that ubiquitous legal fiction, the "reasonable person."  See "The Reasonable Person as a Living Fossil," ABA Journal of the Section of Litigation, Vol. 37, No. 1, Fall 2010.  In tracing its evolution, he concludes the reasonably person is never defined by the law but rather left to a panel of peers to define based on the collected mores of the times.

Mediator Strategies, and the Role of Mediator Race/Gender

The Fall issue of ACR’s Conflict Resolution Quarterly had a number of very informative and interesting articles that are well worth summary, comment and praise.  See Vol 28, No. 1.  Of particular interest to me were two empirical studies:

• “Do Mediators Walk Their Talk in Civil Cases?,” by James A. Wall, Jr. and Suzanne Chan-Serafin; and
• “Fairness, Understanding, and Satisfaction:  Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation,” by Lorig Charkoudian and Ellen Kabcenell Wayne.

The first study adds a very interesting twist to our understanding of the role played by our “mediator demeanor” or “style.”  The second adds texture to what we know and think we understand about gender and race dynamics, while highlighting some unexpected findings.

(Relatively) Recent and Exciting Arbitration Decisions

In the last few years, the legitimacy and reach of arbitration and arbitration clauses have been considerably expanded by the U.S. Supreme Court.  Three in particular interest me because they related to my own practice emphasis:  14 Penn Plaza, Rent-a-Center, and Stolt-Nielsen.  This blog will discuss their basic holdings and why they are significant in the larger scheme of arbitration.

Foreclosure Mediation - Limitations and Concerns

As part of my New Mexico mediation practice, I find I am increasingly being referred residential foreclosure mediation cases.  This is no accident as today, an increasing number of states and/or individual state courts are utilizing foreclosure mediation programs to manage the current "foreclosure crisis." Some states with such programs, either state-wide or local include: Connecticut; Delaware; Florida—various judicial districts; Kentucky—Jefferson County; Maine; Maryland; Michigan; Nevada; New Jersey; New Mexico—First and Thirteenth Judicial Districts; New York; Ohio—various counties; Oregon; Pennsylvania—various counties; Rhode Island—Providence. 

A recurring and thorny dilemma for mediators today is how to conduct and what are the proper parameters for a foreclosure mediation or settlement facilitation.

NM Survey -- Lawyers' Take on State’s Civil Justice System

In the January 12, 2011 edition of the New Mexico Bar Bulletin, State Supreme Court Justice Edward L. Chavez reported the results of a recent survey conducted by the NM Defense Lawyers Ass’n (NMDLA) and the NM Trial Lawyers Ass’n (NMTLA), at the State Supreme Court’s request.  See Bar Bulletin, Jan. 12, 2001, Vol. 50, No. 1.

The NMDLA and the NMTLA are comprised and represent the interests of members of the civil defense bar and the plaintiffs civil bar, respectively.  253 attorneys responded, and the results were interesting both for what they indicate, and the questions they leave lingering. 

Neutrals “Friending” or “Connecting” with and/or “Following" or being ”Followed by" Folks

I’ve posted several blogs recently about the impact and implications of modern technology for neutrals, such as the judiciary’s use of sophisticated Information Technology (IT) and internet sources in its decisions, and the increasing use and questionable reliability of internet-based primary sources.  Now, I turn to social media.

I or my firm is a member of various social media:  the ubiquitous Facebook; the quick & dirty Twitter; profile-building (I hope!) Blogger; and the imminently useful and informative LinkedIn.  When signing up with  LinkedIn, it automatically searched my email for contacts already on LinkeIn, and offered to extend an invitation to “connect” with the email “contacts.” I am a lawyer and a labor neutral, and my contacts not surprisingly included a number of labor and management representatives, and also lawyers from a number of different walks.  Moreover, once on LinkedIn, I signed up to follow a variety of interest groups, some members of which—presumably those interested in my Twitter and/or Blogger postings—have since “connected” with or begun to "follow" me.... Have I committed ethics violations???