Law Commons^™

A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray

Law Faculty Scholarly Articles

The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …

Following The Rules: Exclusion Of Witness, Sequestration, And No-Consultation Orders, Richard H. Underwood

Law Faculty Scholarly Articles

In this Article, Professor Underwood discusses the varying application of Rule 615 of the Federal Rules of Evidence, which provides for the exclusion of witnesses. He explains that varying application of Rule 615 and state evidence rules following Rule 615's language creates misunderstandings at trial. Thus, it is important to know not only the federal and local rules but also the "way things are done" in a particular court.

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

Evaluating Scientific And Forensic Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood offers a critique of the present state of scientific and forensic evidence. In the context of discussing four challenges to the field, the author arms the practitioner with strategies and tactics for making effective use of scientific and forensic testimony.

"X-Spurt" Witnesses, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author pulls together a history of expert witnesses in common law systems. Various issues are explored regarding expert witness testimony, including: the historical underpinnings of the practice, how Daubert controls that issue in modern times, rules of evidence, psychological science, and professional ethics.

"Show And Tell": An Analysis Of The Scope Of The Attorney-Client Waiver Standards, Roberta M. Harding

Law Faculty Scholarly Articles

As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.

In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that …

Logic And The Common Law Trial, Richard H. Underwood

Law Faculty Scholarly Articles

In this article, the author explores some of the inconsistencies between logic and the practice of law. The article draws together numerous anecdotes and examples of situations in which common sense was rejected or ignored in the name of legal procedure. The article focuses on various argument styles employed by lawyers.

Waiver: A Comprehensive Analysis Of A Consequence Of Inadvertently Producing Documents Protected By The Attorney-Client Privilege, Roberta M. Harding

Law Faculty Scholarly Articles

The inadvertent production of documents protected by the attorney-client privilege frequently occurs in contemporary litigation. This phenomena becomes more prevalent as the number of cases involving inadvertent document production grows. Unfortunately, given the present modes for resolving the waiver issue that stems from this occurrence, this occurrence could threaten to become the rule rather than the exception. The increased frequency of inadvertent document production is due primarily to more disputes arising out of production of documents demands by the opposing party that emerge as parties request the production of an increasing number of responsive documents. As a result, the sheer …

Apportionment In Kentucky After Comparative Negligence, John M. Rogers

Law Faculty Scholarly Articles

Adoption of comparative negligence gives juries the task of allocating fault between a plaintiff and a defendant when both were negligent and both caused the plaintiff's injury. A logical corollary must be that juries are theoretically and practically able to make such an allocation. If so, it follows that juries are able to make such an allocation among multiple defendants, each of whom was found to be both negligent and a cause of the plaintiff's injury. The judicial adoption of comparative negligence in Kentucky therefore requires a reexamination of the rules applicable to multiple tortfeasors. Cases decided since the adoption …

Discovery In Kentucky: An Overview, Richard H. Underwood

Law Faculty Scholarly Articles

Discovery receives short shrift in the law school curriculum. Although students are introduced to the subject in a first year course on Civil Procedure, the "bathtub effect" usually takes its toll by graduation day. That is, after the first year, the plug is pulled and the student's knowledge drains away. Moreover, it is difficult to teach discovery in third year programs on trial advocacy. Too much emphasis on discovery and pretrial would leave too little time for instruction on the mechanics of the actual trial. Even the experienced practitioner may not remember all the intricacies of discovery and may find …

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Discovery Of Nonparties' Tangible Things Under The Federal Rules Of Civil Procedure, Sarah N. Welling

Law Faculty Scholarly Articles

Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties' things, the whole discovery scheme for nonparties is rather …

Adversary Ethics: More Dirty Tricks, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author provides a primer on the more common forms of cheating employed by trial lawyers. Another purpose is to suggest that there are antidotes that may be administered to curb these abuses, assuming that trial attorneys are alert enough to invoke them, and trial judges are willing to apply them.

Curbing Litigation Abuses: Judicial Control Of Adversary Ethics—The Model Rules Of Professional Conduct And Proposed Amendments To The Rules Of Civil Procedure, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial …

The Law Of Presumptions: A Look At Confusion, Kentucky Style, Robert G. Lawson

Law Faculty Scholarly Articles

Over the years the term “presumption” has been used by virtually all courts to “designate what are more accurately termed inferences or substantive rules of law.” It has also been used as a “loose synonym for presumption of fact, presumption of law, rebuttable presumption, and irrebuttable presumption.” To this list the Kentucky Court of Appeals had added mandatory presumption, presumptive evidence, and prima facie case. Perhaps of more significance than the indiscriminate use of terminology is the extent to which courts have used “presumptions” to describe judicial reasoning of various kinds and to perform chores more appropriate to unrelated procedural …

Order Of Presentation As A Factor In Jury Persuasion, Robert G. Lawson

Law Faculty Scholarly Articles

The “law of primacy in persuasion” has been formulated as follows: The side of a controversial issue having the advantage of first position in the order of presentation is more effective in changing opinion than the side presented last, all other factors being equal. Recent experimentation has revealed that “primacy” is not “an indubitable factor in persuasion,” but occurs only under certain conditions. In this article, an effort has been made to evaluate the experimentation conducted in this area of communications research, and to determine if the conditions of the courtroom are such that order of presentation could be expected …