Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators,
2014
St. Mary's University
Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti
St. Mary's Journal on Legal Malpractice & Ethics
Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decision-making is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and …
The Corporate Attorney As “Internal” Gatekeeper And The In Pari Delicto Defense: A Proposed New Standard,
2014
St. Mary's University
The Corporate Attorney As “Internal” Gatekeeper And The In Pari Delicto Defense: A Proposed New Standard, Kevin H. Michels
St. Mary's Journal on Legal Malpractice & Ethics
This Article begins by proposing a distinction between the corporate lawyer’s “internal” and “external” gatekeeping role in order to focus on the special challenge posed by the former. As internal gatekeeper, the corporation lawyer is charged with the restraint of the corporation’s executives and other employees to prevent harm to the lawyer’s corporation client. The external gatekeeper, by contrast, restrains the client to prevent harm to third parties. While each gatekeeping role presents challenges in defining the duties and liability of attorneys, the internal-gatekeeping role is subject to a special defense that can insulate attorneys from liability. Attorneys can interpose …
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment,
2014
St. Mary's University
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
St. Mary's Journal on Legal Malpractice & Ethics
Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice,
2014
St. Mary's University
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
St. Mary's Journal on Legal Malpractice & Ethics
The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …
Online Legal Advice: Ethics In The Digital Age,
2014
St. Mary's University
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
St. Mary's Journal on Legal Malpractice & Ethics
The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …
Intra Law Firm Communications Regarding Questionable Attorney Conduct.,
2014
St. Mary's University
Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness
St. Mary's Journal on Legal Malpractice & Ethics
When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …
The Agony Of Modern Legal Ethics, 1970-1985.,
2014
St. Mary's University
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
St. Mary's Journal on Legal Malpractice & Ethics
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns.,
2014
St. Mary's University
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
St. Mary's Journal on Legal Malpractice & Ethics
An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …
Characterizing Ghostwriting.,
2014
St. Mary's University
Characterizing Ghostwriting., Debra Lyn Bassett
St. Mary's Journal on Legal Malpractice & Ethics
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases.,
2014
St. Mary's University
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer
St. Mary's Journal on Legal Malpractice & Ethics
This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.
Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law.,
2014
St. Mary's University
Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia
St. Mary's Law Journal
It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …
The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law.,
2014
St. Mary's University
The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law., Paul Hanna, Matthew Leal
St. Mary's Law Journal
Abstract Forthcoming.
Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket.,
2014
St. Mary's University
Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket., Richard E. Flint
St. Mary's Law Journal
A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application. However, in response to the case of In re Columbia Medical …
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules.,
2014
St. Mary's University
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler
St. Mary's Law Journal
This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …
A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports.,
2014
St. Mary's University
A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried
St. Mary's Law Journal
Abstract Forthcoming.
The Accommodation Doctrine Revisited: Implications In Law And In Policy.,
2014
St. Mary's University
The Accommodation Doctrine Revisited: Implications In Law And In Policy., Courtney R. Potter
St. Mary's Law Journal
Abstract Forthcoming.
Immigration And Cooperative Federalism: Toward A Doctrinal Framework,
2014
University of Colorado Law School
Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen
Publications
What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …
Internships As Invisible Labor,
2014
University of Colorado Law School
There Oughta Be A Law—A Model Law,
2014
University of Washington School of Law
There Oughta Be A Law—A Model Law, Mary Whisner
Librarians' Articles
Uniform and model laws are frequently proposed to standardize “what the law is or should be” for specific jurisdictions. These model acts can come from national or international drafting organizations, such as the Uniform Law Commission, or from interest groups or associations that want to promote specific policies. Ms. Whisner provides an overview of the various types of model laws that researchers should know about.
