Using Advanced Conflict Waivers to Teach Drafting, Ethics, and Professionalism

On a substantive and ethical level, I tell my students to take on faith that if you were to do all of this and take all this into account, if you were to apply the conflict of interest and the disqualifications rules, it could make it extremely difficult or many of the firms involved in these matters to avoid being conflicted out; especially, if the parties and the kind of firms involved were not dealing with these conflicts and issues until a problem arose. The question I ask my students again at this point is what could be done. What could be done proactively from a contractual matter to try and avoid these sorts of problems? And one of the answers to that is, as part of retainer agreements between firms and their clients, advance conflict waivers as a way to fend off an advance or try to fend off an advance potential disqualification if conflicts of interest arise down the road

Experiential Skills in Legal Education: Introducing Tomorrow’s Practitioners to Practicing Law

Welcome to the “Future of Law,” a new column that will appear regularly in the Michigan Bar Journal. This month, we kick off a recurring series devoted to legal education. These articles will highlight new developments and ongoing efforts at the five Michigan law schools to introduce students to experiential skills and more effectively prepare them to practice law. In future columns, authors will shed light on what law schools are doing to prepare students for practice and, we hope, inspire more Michigan attorneys to get involved—or, for some of you, become further involved—in those efforts. Why is this inaugural column about experiential skills part of a theme issue dedicated to the future? That’s simple enough. Legal education faces forward. Law schools train tomorrow’s lawyers and are vital to the profession’s future. This introductory column, however, begins by looking at the past. Law schools are often criticized for not having done enough to train students to actually practice law. When directed at older approaches to legal education, this criticism is often justified. Anecdotal evidence supports that conclusion. Who hasn’t marveled at a rookie mistake by a newly minted lawyer and wondered what exactly that lawyer had learned during three years of law school? I don’t need to look any further than the mirror. When I recall my days as a new associate more than two decades ago, I shake my head at all the things I didn’t know—and, worse yet, didn’t know I didn’t know—about what it meant to practice law

Transferability: Helping Students and Attorneys Apply What They Already Know to New Situations (Part 2)

Part 1 of this column (January 2019) described several ways that professors and supervisors can help young attorneys transfer their knowledge of legal skills and legal practice to new situations. The pedagogical techniques discussed in Part 1 look forward, helping novice lawyers make connections between what they learn today and how to put those lessons into play tomorrow. This month’s column changes direction. Successful knowledge transfer also looks to the past. When young lawyers and law students are introduced to what might first appear to be brand-new legal skills, their ability to quickly make sense of that new information is enhanced when the instructor can connect what they already know to what they’re being asked to learn

Using Ethics Codes to Reinforce Lessons of Statutory Interpretation

To increase my students\u27 exposure to statutory interpretation, I assign them early in the second semester to argue a motion to disqualify counsel based on imputed disqualification under Michigan\u27s ethics ruls. Interpreting ethics rules involves many of the same pure statutory interpretation techniques I introduced the previous semester, and the students appear to easily make any needed translations. This exercise also helps prepare students to interpret other quasi-legislative authorities like court or evidentiary rules, administrative codes, and municipal ordinances

Transferability: Helping Students and Attorneys Apply What They Already Know to New Situations (Part 1)

Every fall, I work with my first year law students to begin developing their legal writing skills. They work hard learning how to analyze cases objectively, predict how a court might resolve a dispute, and convey their assessments to an experienced attorney. Their improvement from September to December is noticeable. They have only one semester of law school behind them and still have much to learn, but they’re on their way…In the second semester, we begin focusing on advocacy. The first assignment asks students to draft a pretrial brief. When I review the drafts, I’m struck by how many problems that seemed to have been eradicated the previous semester reappear a little more than a month later. For many students, the hallmarks of effectively communicating legal analysis that were emphasized throughout the first semester—techniques in which students had started to become competent and, in some cases, proficient—are noticeably reduced or even absent from the draft brief. Organizing the analysis to focus on issues, not cases? Leading with conclusions? Keeping the unfamiliar reader oriented with strong topic sentences and other roadmap devices? Missing in action…This can be explained in part by lack of practice. Legal writing is a skill, and like all other skills, a person’s abilities can deteriorate without opportunities to put them into play. But the larger explanation is one that comes up over and over in all sorts of settings, whether academic, work-related, or personal. The reason my students seem to have forgotten much of what they learned can be summed up in one short phrase: the transferability problem. It’s a problem they share with all adult learners. And as most lawyers who frequently work with young attorneys can attest, it’s a problem that doesn’t go away when law students graduate and begin practice

What We Still Don\u27t Know About What Persuades Judges – And Some Ways We Might Find Out

Over 25 years ago, in his foreword to the first volume of Legal Writing, Chris Rideout nailed it: legal writing as actually practiced by lawyers and judges needs to improve, “[b]ut more fundamental inquiry into legal writing...is needed as well.” The intervening decades have seen many laudable efforts on the latter front, as our collective scholarly discipline, then in its infancy, has matured. But one particular question that Rideout identified remains largely unaddressed by our discipline, although recent developments suggest a welcome increase in attention to the topic. Specifically, Rideout explained that our field did not know as much as we would like about how legal documents are “actually read.” His diagnosis was concise: “Much of the existing literature about legal writing...offer[s] fairly prescriptive advice about organization and style. Very little of this advice, however, is based on research into the ways in which legal documents are actually written or read. Rather, it largely depends upon time-honored, general maxims for writing, translated into the language of legal writing....” As all LRW professors know, legal writing in practice is by its nature often unavoidably complex both substantively and stylistically, making it imperative for the discipline to try to unpack those complexities to suss out what makes legal prose effective. To Rideout, it was “distressing” that we do not know – we in fact “need to know” – such matters as “what a judge responds to stylistically in a brief, or a client in reading an opinion letter, a will, or a contract.

The Second Amendment and Other Federal Constitutional Rights of the Private Militia

The Second Amendment and Other Federal Constitutional Rights of the Private Militi

Religious Shunning and the Beam in the Lawyer\u27s Eye

Some LRW professors design assignments so that students begin learning fundamental legal skills in the context of issues of particular interest to the professor-–what Sue Liemer calls “teaching the law you love.” Recent articles have explained how this might work when applied to such varying matters as multiculturalism or transactional practice. But exposing LRW students to diversity of religious belief does not appear to have found as much traction, at least in the literature. This essay describes one attempt to design a problem that grounds students in just such a larger firmament, while not distracting students (or the professor) from the paramount aim of any LRW course: introducing fundamental skills of legal analysis, communication, and research

If I Had a Hammer: Can Shepardizing, Synthesis, and Other Tools of Legal Writing Help Build Hope for Law Students?

Are lawyers mechanics? In 1920, photographer Lewis Hines took a striking photo of a powerhouse mechanic sure-handedly wielding a large wrench to tighten bolts on a steam pump. This picture may bring to mind many things, but I suspect that many legal writing professors in our (past or present) incarnations as practicing attorneys would not look at this image and think, My job is a lot like that. Similarly, I assume that many of our students do not think of a lawyer\u27s role in this way. Indeed, many of our students might have chosen to pursue a career in law precisely as a way of escaping family traditions of this type of difficult physical labor. But the comparison between lawyer and mechanic is neither so far-fetched nor demeaning. Far from it. In fact, I propose that we legal writing professors can better serve our 1L students, and increase our chances of engendering and maintaining hope in our students, the ultimate goal of this conference, by more explicitly acknowledging the connections between the tools of legal writing and tools as used in the more down-to-earth context of manual labor