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Articles 1 - 30 of 34
Full-Text Articles in Law
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
Attorneys, like all professionals, face civil liability when their action or inaction causes harm to a client. When an attorney fails the client, the claim most often asserted, and the claim that is typically most appropriate, is a legal malpractice claim. A legal malpractice claim is based on negligence.' Thus, the elements of a legal malpractice claim are (1) a duty, (2) a breach of that duty, (3) the breach proximately caused injury to the plaintiff, and (4) damages occurred.
Still, attorneys find themselves in a different circumstance than the average litigant. An attorney is not responsible for the client's …
A Lesson In Civility, David A. Grenardo
A Lesson In Civility, David A. Grenardo
Faculty Articles
The inherent importance of civility in the legal profession necessitates teaching civility by law schools. This Article demonstrates how civility applies to advocacy and the practice of law, the efficiency of our justice system, lawyer well-being, obtaining a job and professional identity formation, and public confidence in the legal system. The Article can assist courts, attorneys, and professors in understanding civility and its significance. Most critically, this Article provides a turnkey lesson plan for law schools on civility that professors can employ in a variety of classes including, among others, Professional Responsibility, Civil Procedure, and Constitutional Law. Teaching law students …
Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman
Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman
Faculty Scholarship
Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.
Let me start with a few opening remarks. We …
The Uncertain Foundation Of Work Product, Michael A. Blasie
The Uncertain Foundation Of Work Product, Michael A. Blasie
Faculty Scholarly Works
Work product is heavily litigated, extensively studied, and sorely misunderstood. Most blissfully accept it as a combination of codified rules and the seminal case of Hickman v. Taylor. This view settles for a superficial understanding that neither recognizes nor questions underlining assumptions. The codified rules are legislative mandates, Hickman is Supreme Court common law, and they define the doctrine differently. To understand its proper scope of work product, we must know the basis of Hickman v. Taylor, whether it can coexist with codified rules, and what happens when they conflict. This Article takes the novel view that work product is …
Reshaping Third-Party Funding, Victoria Sahani
Reshaping Third-Party Funding, Victoria Sahani
Faculty Scholarship
Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …
Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy
Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy
All Faculty Scholarship
This article presents a theoretical model by which a judge could impose civil sanctions on an attorney - relying in part on Rule 1 of the Federal Rules of Civil Procedure - for that attorney’s failure to utilize time- and expense-saving technology.
Rule 1 now charges all participants in the legal system to ensure the “just, speedy and inexpensive” resolution of disputes. In today’s litigation environment, a lawyer managing a case in discovery needs robust technological competence to meet that charge. However, the legal industry is slow to adopt technology, favoring “tried and true” methods over efficiency. This conflict is …
Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law
Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
The High Costs Of Incivility, David A. Grenardo
The High Costs Of Incivility, David A. Grenardo
Faculty Articles
Many law students come to law school after being indoctrinated by television and movies, believing that an effective lawyer must be obstreperous, obnoxious, and rude to be successful. Lawyers, they believe, must fight their opponents on every point at every corner if they want to represent their clients zealously and adequately.
Law students must recognize that incivility by lawyers can lead to significant negative consequences for the client, the attorney herself, and the legal system. Law students must also understand that lawyers can treat opposing counsel with civility while still providing robust, vigorous, and adversarial representation for their clients. This …
Class Counsel As Litigation Funders, Morris A. Ratner
Class Counsel As Litigation Funders, Morris A. Ratner
Faculty Scholarship
No abstract provided.
Regulating Electronic Legal Support Across State And National Boundaries, Cassandra Burke Robertson
Regulating Electronic Legal Support Across State And National Boundaries, Cassandra Burke Robertson
Faculty Publications
Technology and globalization are changing the practice of law and creating new challenges for lawyer regulation. Middle-class litigants who struggle to afford legal services — but are comfortable using online resources — are increasingly seeking and finding legal support online. State and national boundaries dissolve in the online marketplace, making it easy for attorneys to provide services to litigants in other jurisdictions. Differences in national economies make it cost effective for both clients and lawyers to engage in transnational practice, so that attorneys in India and other jurisdictions can offer legal support and advice to American litigants for as little …
The “Friend”Ly Lawyer: Professionalism And Ethical Considerations Of The Use Of Social Networking During Litigation, Nicola A. Boothe-Perry
The “Friend”Ly Lawyer: Professionalism And Ethical Considerations Of The Use Of Social Networking During Litigation, Nicola A. Boothe-Perry
Journal Publications
Social media use has exploded around the world. The top social networking site (SNS), Facebook, reports that it has more than a billion members with approximately two million friend requests every twenty minutes. Coupled with the other top 15 social networking sites, including Linkedln, Google+, Twitter, and MySpace, the number of social networking users is estimated to exceed 2 billion. With billions of people producing and consuming media content through SNS, there has been a growing trend of law firms' use of SNS as a marketing tool and litigators' inclusion of discovery from SNS as a part of their discovery …
Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown
Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown
Scholarly Works
It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This …
The Problems Of Plagiarism As An Ethics Offense, Peter A. Joy, Kevin C. Mcmunigal
The Problems Of Plagiarism As An Ethics Offense, Peter A. Joy, Kevin C. Mcmunigal
Faculty Publications
This column questions the practices of labeling attorney copying, even without acknowledgement, as plagiarism, and treating it as a per se ethics violation. Instead, the column argues that analysis of copying in the litigation context should focus directly on the quality of the filing at issue and the competence and diligence of the lawyer who prepared it.
The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle
The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
4 pages.
"John Nagle, Univ. of Notre Dame Law School" -- Agenda
Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace
Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School
22 slides
The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel
Scholarly Works
It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …
Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel
Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel
Scholarly Works
A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …
The Perils Of Online Legal Research: A Caveat For Diligent Counsel, J. Thomas Sullivan
The Perils Of Online Legal Research: A Caveat For Diligent Counsel, J. Thomas Sullivan
Faculty Scholarship
Online legal research is emerging as a preferred tool for judges, attorneys, and lawstudents, providing a vast amount ofnearly real-time legal resources at the speed of electronic search. This article analyzes the risk of error associated with the immediacy of online opinion publishing and how the uncertainty ofaccuracy potentially compromises the litigator's ability to provide accurate advice.
Civility In Litigation: How Can The Profession Promote And Enforce Good Behavior?, Aviva A. Orenstein, Torrence Lewis
Civility In Litigation: How Can The Profession Promote And Enforce Good Behavior?, Aviva A. Orenstein, Torrence Lewis
Articles by Maurer Faculty
This essay emanates from a talk that was given to the Defense Trial Counsel of Indiana at its annual meeting’s luncheon. The good thing about talking about civility, particularly at lunch, is that no one dare heckle or throw food. Beyond the obvious constraints against rude behavior inherent in the medium, we sense a genuine openness to the topic. Defense counsel, in particular, feel besieged by what they perceive to be uncivil behavior, and welcome affirmation about the nature of the problem and some suggestions for solutions. More generally, one can argue that the lack of civility in legal culture …
Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch
Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Litigating Ethics Issues In Land Use: 2000 Trends And Decisions, Patricia E. Salkin
Litigating Ethics Issues In Land Use: 2000 Trends And Decisions, Patricia E. Salkin
Scholarly Works
No abstract provided.
Taking Action Against Auctions: The Third Circuit Task Force Report, Jill E. Fisch
Taking Action Against Auctions: The Third Circuit Task Force Report, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin
Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin
Scholarly Works
No abstract provided.
Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant
Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant
Faculty Scholarship
You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …
Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch
Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Aba Delegates Amend Model Rule , Susan J. Becker
Aba Delegates Amend Model Rule , Susan J. Becker
Law Faculty Articles and Essays
The ABA House of Delegates has amended Model Rule 4.2 regarding whom attorneys may ethically contact directly during the course of litigation or other legal matters. This article discusses the ramifications of this change.
The Fault Is In Ourselves, Roger J. Miner '56
"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel
"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel
Faculty Scholarship
Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.1
This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …
Introduction (Symposium On Municipal Liability), Patricia E. Salkin
Introduction (Symposium On Municipal Liability), Patricia E. Salkin
Scholarly Works
No abstract provided.
Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch
Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch
All Faculty Scholarship
No abstract provided.