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Articles 1 - 15 of 15
Full-Text Articles in Legal Profession
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
Susan S. Fortney
Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …
The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow
The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow
Trevor C. W. Farrow
This article is about lawyers as negotiators, and in particular, it is about identifying and understanding the influential and potentially competing interests that are - or at least should be - in the minds of lawyers (and potentially other third party representatives) during the overall negotiation process. While there continues to be an increasing amount of literature on the mechanics and strategies of negotiation, the underlying interests that are typically at stake in representative negotiations from the perspective of representatives - particularly negotiations involving lawyers - have not been adequately studied. And until all interests are identified and placed squarely …
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
Robert Rhee
Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …
Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly
Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly
Peter R. Reilly
At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.
My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …
The (Pre) (As) Sumed "Consent" Of Commercial Binding Arbitration Contracts: An Empirical Study Of Attitudes And Expectations Of Transactional Lawyers, 36 J. Marshall L. Rev. 589 (2003), Celeste M. Hammond
Celeste M. Hammond
No abstract provided.
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
Leonard L Riskin
This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work. Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …
Open-Minded Listening, Jonathan R. Cohen
Open-Minded Listening, Jonathan R. Cohen
Jonathan R. Cohen
Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Mary F. Radford
Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Thomas J. Stipanowich
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Nancy Schultz
To what degree does legal authority dictate the outcomes of negotiations? Scholars have discussed the issue, and law students argue about it in their negotiation classes. A survey of practicing lawyers reveals that knowing the law is an important part of the preparation for negotiation, but that legal authority is not the primary determinant of negotiated outcomes in practice. Financial constraints, bargaining power, and negotiating skill are all reported as having a greater effect on negotiated outcomes than the law.
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
Thomas J. Stipanowich
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola
The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola
Abdullahi Saliu Ishola
This paper critically examines the legality and constitutionality of the provision of Rule 5 sub-rule (5) of the Rules of Professional Conduct for Legal Practitioners, 2007 (the Rules), prohibiting the practice of law in Nigeria as a corporation. The appraisal is done on the scales of the provisions of Sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution), providing for rights to freedom of association and peaceful assembly and freedom from discrimination, respectively; on one hand, and, Section 18 of the Companies and Allied Matters Act (CAMA), allowing any two or …
Human Flotsam, Legal Fallout: Japan's Tsunami And Nuclear Meltdown, Robert B. Leflar, Ayako Hirata, Masayuki Murayama, Shozo Ota
Human Flotsam, Legal Fallout: Japan's Tsunami And Nuclear Meltdown, Robert B. Leflar, Ayako Hirata, Masayuki Murayama, Shozo Ota
Robert B Leflar
We report on our field research in Fukushima Prefecture in July 2011. We interviewed legal professionals and community leaders in Fukushima City and in towns inundated by the March 2011 tsunami and within a few kilometers of Fukushima No. 1 nuclear reactor. We catalogued many of the extensive variety of problems faced by Fukushima residents, both evacuees and those who remained in their homes. Many of these problems, both legal and non-legal, arose from government actions as the disaster unfolded and afterwards, including the administration of the initial program for provisional compensation for disaster victims. We learned that in the …
Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan
Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan
Donald J. Kochan
In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The …