Out-of-the-Box Lawyering

This could be the law-related understatement of the year: "They are not expected to treat him kindly"

USAToday has an article in its January 29, 2004 issue about the expected testimony of the government's “most important witness” in the Martha Stewart prosecution. The article describes the witness, Douglas Faneuil, as an assistant to Stewart's broker. In what may be the law-related understatement of the year, the article concludes that the defense lawyers for Stewart and her broker “are not expected to treat him kindly.”

The article does, however, continue and quotes a former Justice Department prosecutor: The “witness chair is going to be white-hot“ and Faneuil will be “subject to withering cross-examination.”

Addendum:

The printed version of the article was updated today in USAToday's website to report that the trial has now been postponed because the defense was just given a statement which Faneuil's former attorney gave to the FBI in 2002.

Do you have a Daubert issue or want to check out whether an expert has been discussed in a Daubert context? Here's a great site!

Daubert-issue cases number in the thousands. Do you want to check whether an expert has been qualified — or disqualified — by a court under Daubert (or under Kumho Tire or Joiner?) Or do you want to see how the issue has been applied in both federal and state courts to a particular type of expertise?

If you do, then here's the site for you: Daubert Tracker at www.dauberttracker.com. The site notes that its features include:

Tracking of all federal and state cases involving evidentiary gatekeeping standards, including all cases citing Daubert, Kumho Tire and Joiner;

Reporting of all numerous unreported cases; and

Other information from over 14,000 case records and 16,000 expert records

You can search Tracker by a variety of criteria, including (1) by the name of the expert, (2) by the field of expertise, and (3) by the court discussing the issue.

You can also purchase many case documents and transcripts.

For even more information, you may want to read an article by Robert Ambrogi, a former editorial director of the National Law Journal and former director of American Lawyer Media News Service. (The article on the Daubert site was previously published in the National Law Journal. You can go to Ambrogi's own site to see some of his other articles.)

If you want still more information, Tracker also has an eleven-minute sound demo.

If you're not a heavy user, you can search the entire Daubert database for one-half hour for $10 and for two hours for $25. If you're a heavy user, a one-year subscription costs $495.

Tracker will not include information on a particular expert — even if the expert was named in the opinion —when the case did not involve an expert-related issue of admissibility. BUT you can go on Lexisone.com (www.lexisone.com), Lexis's free (FREE!!!) site, and search the last five years of federal and state appellate cases to see if your opponent's expert (or even your own expert) has been named. (There is a charge if you want to Shepardize a case or see Lexis-added summaries, etc., but the regular searching is FREE!)

For a more detailed description of Lexis's fantastic free appellate court search facility, see my earlier posting.

And for even more Daubert-type information, you can go to Blog 702 and Daubert on the Web, both by Peter Nordberg. (The reference in Blog 702 to “702” refers to Federal Rule of Evidence 702, which governs expert testimony.)

"Preventing and Solving Legal Problems Creatively" — That's the interesting title of an out-of-the-box legal conference coming up in March

The California Western School of Law will be hosting a conference on "Preventing and Solving Legal Problems Creatively." This is the school's "Second International Conference on Creative Problem Solving" and will be from March 4 through March 6 in San Diego. Here's how their site describes it:

"This international conference will engage in an interdisciplinary exploration of systems and techniques for preventing and solving legal problems creatively. Educators, lawyers, judges and professionals in the fields of cognitive psychology, business, neuroscience, and other fields that study preventing and solving problems are encouraged to attend."

The law school also has a Center for Creative Problem Solving that has produced videos, one of which is entitled "Preventive Law and the Multi-dimensional Lawyer." Here's the thrust of the video:

Lawyers are too often portrayed as one-dimensional: the fighter who champions individual rights. Lawyers, however, are also designers who prevent problems from arising by shaping environments that respect existing laws and respond to human needs, and they are problem solvers, seeking creative, non-adversarial solutions to problems that arise. This video introduces the roles, skills, and mentalities of the lawyer as Designer and as Problem Solver."

The tentative schedule for the conference and a registration form are on the site. "Up to 15 hours of CLE credit will be available, of which 3.5 can be for professional responsibility."

There is a limit of 120 registrants and the last time I checked 80 had already registered.

I hope to see you there.

Do you have an ethics question? Here's how to get quick and usually free advice

Do you need advice on an ethics question? Want an out-of-the-box solution? The American Bar Association has a service for all attorneys, whether or not they are members of the Association. Their service is called ETHICSearch and here's how their site describes it:

"ETHICSearch is a fast and economical way to find the right resources to help resolve your ethics questions. Staffed by lawyers experienced in legal ethics research, you'll receive citations to relevant ABA rules, opinions, and other ethics resources. Lawyers, law students, law clerks, and others with legal ethics questions will find ETHICSearch a valuable resource.

"Most searches are free of charge! There's no charge for an initial consultation or if the ETHICSearch lawyer can answer your question immediately. If you ask for additional research, you will be charged an hourly rate of $30.00 for members of the Center for Professional Responsibility, $45.00 for other ABA members, and $60 for non-members. The minimum charge is $15.00.

"Most inquiries are handled on a same-day basis. Expedited same day service and fax and mailing services can also be arranged.

"To get started, call 800-285-2221, fax your ethics questions to 312-988-5491, or send an e-mail to ethicsearch@staff.abanet.org. You can also write to us at ETHICSearch, ABA Center for Professional Responsibility, 541 North Fairbanks Court, Chicago, IL. 60611-3314."

The ABA site also lists links that have additional resources. You can find links to even more resources on the site of the Circuit Court of Cook County Illinois. Its site includes links to a Cornell Law School's ethics site, to ethics on FindLaw.com, and to legalethics.com.

If you want to do even more research on the web, there is an excellent article by Robert J. Ambrogi on "Top Sites: In Search of Ethics on the Internet" which was published in the ABA's March 2003 issue of Law Practice Management. The article not only describes in some detail most of the sites listed above, but it also describes some additional sites.

You may not have an ethics questions now, but eventually an issue will probably pop up in a case, perhaps one involving your opposing attorney. The ABA may be a way to obtain quick and inexpensive (if not free) advice. If you need more information, the other resources described above may help you find a solution.

If you have a consumer law case, this site could be a gold mine for you

Well, I am coming back to my blawg and will start posting again. I hope this first one will be helpful.

I will be allowing comments — at least to start. The notable Ernie the Attorney has stopped permitting comments because of the spam, and I probably will have to stop also. In the meantime, please excuse the spam on my site for the — oh well, you know what.

Now, finally, here's the post:

There is a non-profit organization called the National Consumer Law Center (NCLC) that provides a wealth of services to attorneys. If you have a consumer law case, their information could save you lots of time in handling the case. Among other services, the Center provides a variety of manuals that are designed for use in all 50 states. They include practice pointers and sample pleadings, checklists and forms so you don't have to reinvent the wheel. And, like the Ginzu knife, they have even more. The manuals include material on CD-Roms so you don't have to retype everything. And there's even more. They give pertinent background regarding the issues. If you want to see a sample of background material from a manual, they have a link to a PDF file that has a seven-page sub-sub-section on " ‘Back End' Sales: Rust-Proofing, Financing, Insurance, Service Contracts, Documentary Charges and Other Add-Ons." The sample text notes that "[a]s much as ninety percent of dealer profits come from the back-end," and then it goes into great detail about how consumers can get ripped off by the dealerships. Further, it cites case law reflecting how courts have held in favor of vehicle buyers in a variety of situations.

The site lists over 15 separate manuals that are shipped with CD-Roms. The manuals are listed in major categories or "Libraries" such as Debtor's Rights Library, Credit and Banking Library, Deception and Warranties Library and Consumer Litigation Library. Each of these "libraries" includes from three to five separate manuals with the CD-Roms. For instance, the Debtor's Rights Library includes manuals with CD-Roms on Consumer Bankruptcy Law and Practice, Fair Debt Collection and Student Loan Law. The Credit and Banking Library includes manuals with CDs on Truth in Lending, Fair Credit Reporting, and Credit Discrimination.

Their site also includes sample interview questions and pleadings and even a sample voir dire, a sample closing argument, and sample jury instructions.

And that's not all. They even have a "Consumer Case Consulting Service for Attorneys." For a fee, they can do research and writing, and "help you identify the best consumer law claims to pursue and help you develop the most up-to-date strategies for responding to issues in your cases." If you have any questions about their services, you can call 617-542-8010.
No, I'm not on a commission, but, over the years, I have seen their manuals in our State Supreme Court Library and have been mightily impressed with their quality. Check with your local library or Legal Aid type office. They may have the volumes. These would be great if you're a small practitioner or if you're part of a large firm that does pro bono work.