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Articles 1 - 26 of 26
Full-Text Articles in Legal Profession
Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben
Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben
Faculty Publications
Mindfulness is often touted in the legal field for its capacity to help reduce stress and improve focus through the management of distractions. However, the potential contributions of mindfulness practice for the legal profession extend beyond stress reduction' and include great promise for helping lawyers understand who they are as members of the legal profession - that is, their professional identity. This knowledge is empowering because it allows lawyers facing ethical quandaries to make choices that better align their professional values with their personal values, rather than aligning their personal values with professional values and societal expectations of success. In …
Technically Bankrupt, Brook E. Gotberg
Technically Bankrupt, Brook E. Gotberg
Faculty Publications
What is the difference between a robot and a lawyer? The answer is not a joke, and may soon be a matter of great urgency for attorneys, as the legal field attempts to adjust to disruptive technologies that are likely to permanently alter the way that law is practiced throughout the United States. The consequences for failing to adjust to technological disruption for any industry, as demonstrated in recent years by big-name, bankrupt companies, can be disastrous. Legal tools found in chapter 11 of the Bankruptcy Code are largely intended to assist debtors in reorganizing their business affairs, preserving value …
Last Lecture: Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Last Lecture: Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Faculty Publications
Lawyers often assume that they know what their clients want-to get as much money or pay as little money as possible. While clients usually are very concerned about their bottom line, they often have additional interests. In virtually any kind of case, parties may have an interest in being treated respectfully and fairly, minimizing the cost and length of the process, freeing time to focus on matters other than the dispute, reducing the emotional wear and tear caused by continued disputing, and protecting privacy and reputations. Plaintiffs may have interests such as obtaining favorable tax consequences, getting nonmonetary opportunities, and …
Escaping From Lawyers' Prison Of Fear, John Lande
Escaping From Lawyers' Prison Of Fear, John Lande
Faculty Publications
Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …
The True Value Of A Law Degree, Or, Why Did Thurgood Marshall Go To Law School?, R. Lawrence Dessem, Gregory M. Stein
The True Value Of A Law Degree, Or, Why Did Thurgood Marshall Go To Law School?, R. Lawrence Dessem, Gregory M. Stein
Faculty Publications
There has been vigorous debate in recent months over whether a law degree is a worthwhile investment. Much of this discussion has focused on whether the economic costs of obtaining a degree pay off over a lawyer’s career. This conversation has largely overlooked the many non-economic benefits of a law degree. In this essay, we seek to re-introduce several non-economic factors back into this important dialogue. We suggest that prospective law school applicants would be wise to consider these non-economic factors in addition to economic ones.
Reforming Legal Education To Prepare Law Students Optimally For Real-World Practice, John M. Lande
Reforming Legal Education To Prepare Law Students Optimally For Real-World Practice, John M. Lande
Faculty Publications
This article synthesizes major points in the October 2012 symposium of the University of Missouri School of Law Center for the Study of Dispute Resolution, entitled "Overcoming Barriers in Preparing Law Students for Real-World Practice." There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to think like a lawyer is still necessary but it is not sufficient for students to act like a lawyer soon after they graduate.
Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams
Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams
Faculty Publications
In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”
Helping Lawyers Help Clients, John M. Lande
Helping Lawyers Help Clients, John M. Lande
Faculty Publications
Counseling clients about dispute resolution options is easier said than done. This article suggests a strategy to help lawyers counsel clients in choosing dispute resolution options. Perhaps the most promising approach involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.
A Discourse On The Aba's Criminal Justice Standards: Prosecution And Defense Functions: The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Uphoff
Faculty Publications
Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice …
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande
Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande
Faculty Publications
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Faculty Publications
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …
The Uniform Collaborative Law Act's Contribution To Informed Client Decision Making In Choosing A Dispute Resolution Process, John M. Lande, Forrest Steven Mosten
The Uniform Collaborative Law Act's Contribution To Informed Client Decision Making In Choosing A Dispute Resolution Process, John M. Lande, Forrest Steven Mosten
Faculty Publications
This Article describes how lawyers can implement the requirements of the Uniform Collaborative Law Act to obtain clients’ informed consent. The Act requires lawyers to obtain clients’ informed consent before undertaking a Collaborative representation but does not specify the information that lawyers must discuss with prospective Collaborative parties. To flesh out the Act’s requirements, this Article describes how lawyers should analyze the facts and parties’ interests, screen the appropriateness of dispute resolution processes, analyze the reasonably available dispute resolution options, and discuss the Collaborative process with clients. It specifically addresses privacy issues including privilege, confidentiality, and full disclosure requirements. This …
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Faculty Publications
Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …
An Appreciation Of Marc Galanter's Scholarship, John M. Lande
An Appreciation Of Marc Galanter's Scholarship, John M. Lande
Faculty Publications
This brief essay highlights three of Marc Galanter's works to illustrate qualities that seem especially worth emulating. Galanter's classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, focuses on how the legal system actually operates in daily life and challenges a conventional wisdom that simply providing have-nots with more lawyers would substantially reduce inequality. The article is particularly relevant to the dispute resolution field, focusing on the vast majority of legally-oriented behavior that occurs outside of court. It distinguishes truly private dispute resolution (such as self-help, withdrawal from relationships, and intra-group processes) from settlement …
Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande
Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande
Faculty Publications
This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …
Judging Judges And Dispute Resolution Processes, John M. Lande
Judging Judges And Dispute Resolution Processes, John M. Lande
Faculty Publications
This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …
Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande
Principles For Policymaking About Collaborative Law And Other Adr Processes, John M. Lande
Faculty Publications
This Article articulates a set of principles for policymaking about alternative dispute resolution (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decision making. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as …
Reflections On Leadership, Robert H. Jerry Ii
Reflections On Leadership, Robert H. Jerry Ii
Faculty Publications
When I first sought to become more familiar with the available academic literature on leadership a few years ago, I encountered servant-leadership theory and the writings of Robert Greenleaf. In those materials I found a much more developed articulation of this philosophy, and it is the essence of that philosophy of leadership that I embrace. Stated succinctly, leadership has its roots in service, and effective leadership is based on service to others. Effective leadership comes from the desire to put the well-being of others first-whether they are students, faculty, employees, customers, or community-and to give priority to the interests of …
Advancing Public Interest Practitioner Research Skills In Legal Education, Randy J. Diamond
Advancing Public Interest Practitioner Research Skills In Legal Education, Randy J. Diamond
Faculty Publications
The information revolution has dramatically altered the legal research landscape, expanding the bounds of legal authority. Practitioner research requires more than traditional legal research. It also encompasses factual investigation, non-legal information, interdisciplinary and audience research. Many new lawyers are ill-prepared to research novel and unusual situations, to cope with unwritten laws and local customs, and to meet shifting authority expectations.
Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional?, Rodney J. Uphoff
Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional?, Rodney J. Uphoff
Faculty Publications
This essay begins, therefore, by briefly examining the question of what constitutes good lawyering. The essay acknowledges the difficulty of defining precisely what is good lawyering. In fact, scholars, judges, and lawyers often disagree markedly when they characterize lawyer behavior using the term. Not surprising, then, even though academic commentators routinely trumpet the importance of establishing a meaningful attorney-client relationship as an important aspect of good lawyering, not all in the legal profession embrace that view.8Indeed, the debate about the importance of a good lawyer-client relationship largely reflects contrasting attitudes within the legal profession about the client's role in the …
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Faculty Publications
A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant's first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel's standpoint, the father's testimony was critical because he was the only witness corroborating the defendant's version of the event. …
Allocation Of Decisionmaking Between Defense Counsel And Criminal Defendant: An Empirical Study Of Attorney-Client Decisionmaking, Rodney J. Uphoff
Allocation Of Decisionmaking Between Defense Counsel And Criminal Defendant: An Empirical Study Of Attorney-Client Decisionmaking, Rodney J. Uphoff
Faculty Publications
In Commonwealth v. Woodward, the highly publicized murder trial of an au pair accused of killing an infant in her care, the defense team faced a strategic decision commonly encountered at trial: whether to request or to object to lesser included jury instructions. Put simply, the Woodward defense team had to decide whether to ask for an instruction that would permit the jury to return a manslaughter verdict, or to object to such an instruction, leaving the jury only the choice either to acquit the defendant or to convict her of second degree murder as charged in the indictment. Undoubtedly …
Suing The Firm, Richard C. Reuben
Suing The Firm, Richard C. Reuben
Faculty Publications
Lawyers who once would rather take grievances against their firms to the grave are now taking them to court. Is it the death of professionalism or the dawning of accountability?
The Case Of A Lifetime, Richard C. Reuben
The Case Of A Lifetime, Richard C. Reuben
Faculty Publications
There is great difficulty in defining pro bono lawyering. The classic model is the practitioner who devotes time to representing a client in a civil or criminal matter. But some consider other legal relationships pro bono as well, such as service on the boards of directors of nonprofit organizations, legal work at reduced fees, and activities that improve the law and legal profession. In the case of organizations such as the ACLU and the NAACP LDF, pro bono means a mixture of much of the above, as public interest law firms work hand in hand with private lawyers and firms …
The Legal Profession, Legal Education, And Change, Robert H. Jerry Ii
The Legal Profession, Legal Education, And Change, Robert H. Jerry Ii
Faculty Publications
The accounts of how the legal profession has changed in recent years are as abundant as the changes themselves. The common message is clear: the magnitude of change is immense, and the pace is unprecedented.
Turning Online Time Into Quality Time: Searching Ohio Case Law On Lexis And Westlaw, Randy J. Diamond
Turning Online Time Into Quality Time: Searching Ohio Case Law On Lexis And Westlaw, Randy J. Diamond
Faculty Publications
This article discusses some of the lesser known complexities of LEXIS and WESTLAW and the necessity for evaluating these systems critically. Sample searches highlight the major differences between WESTLAW's and LEXIS's search protocols. Comparable features of each system are examined to show how users can improve the quality of their search results and to warn of unintended consequences when users misapply them. Strategies for formulating searches that retrieve relevant cases and prevent the exclusion of potentially relevant cases are considered, along with the economics of online searching. Although the searches presented are limited to Ohio case law, they are adaptable …