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Mock Trial -- Dare You NOT Do It?

Blawgletter's firm handles much of our work on a contingent fee basis. That means we share risk with our clients -- and earn no fee if we don't help our clients get a good result.

What counts as a good result will vary from case to case. It often involves a money inflow, sometimes not having to pay. In some instances, a particular outcome -- winning a motion to dismiss, to compel arbitration, for class certification, for preliminary injunction, and so on -- defines success.

Why do we mention the risk-sharing? Mainly because our firm has a rule that, before trying any case in which we have a contingent fee on the line, we must MOCK TRY it. That should tell you how much we believe in the usefulness of the mock trial.

But what good, you may ask, does the mock trial do? Do the results predict the real outcome? How could they? Cramming weeks of opening statements and witnesses and argument and PowerPoints and blow-ups and expert opinions and juror notebooks and sidebars and so forth into TWO OR THREE HOURS -- how could that possibly tell you anything worthwhile?

Okay. Listen up. We don't want to have to repeat this.

Mock trying the case forces you -- the lawyer and the client -- to prepare. It makes you think about the other side's strengths -- especially if you compel your lead trial counsel to play the other side's lead (in her or his own style, of course). And it fast-forwards your client to the main event, which he or she may have an unrealistic Hollywood-y image of.

Does the outcome predict actual results? Heck no -- by which we mean in the particulars. Mock juries often differ widely in their damages awards. That goes double for punitive damages. But the direction of their verdict -- you win, or the other side does, big time -- has a fair degree of reliability.

Third, the process reveals the One Fact. The One Fact that the lawyers know Has Importance. But that nobody realizes -- until the mock trial -- the Whole Case Turns On.

So mock try your cases. Spend your own money doing it, if you work on a contingent fee. Clients should insist on jury research. You'll like the results. 

Quote of the Day: Bucky Katt

I listen to a lot of AM radio.

Bucky Katt, Get Fuzzy, Jan. 1, 2011 (responding to question "and where do you come up with all your wacko theories?").

"Under Seal" Doth Not Equaleth "In Camera"

Michael Smith at EDTexweblog.com has a fun post on why you should know the difference between "under seal" and "in camera". 

It features a photo and dialogue from Ghostbusters.  Way to go, Mike.

Quote of the Day: Damon Darlin

[A] nerd is someone . . . who has more e-mail addresses than pants.

Damon Darlin, "Behind My Seven Phone Numbers", The New York Times, Sept.12, 2010.

(Note:  The online version of the article changed the title to "Cellphone Carriers Are Turning to Wi-Fi, Too".)

Quote of the Day: Tim

It would help enormously if the British would just speak English properly.

Tim, Aug. 19, 2010, commenting about Martha Nell, "Big Law's Secret to Success in Retaining Women Partners:  82 Holidays a Year", ABA Journal online.

Quote of the Day: David E. Mills

A man and his lawyer stand outside a building that looks like a courthouse:

Client:  What's wrong?  Why aren't we in court anymore?

Lawyer:  I just got Twombleyed in the Iqbals.

David E. Mills, Courtoons, Oct. 23, 2009.

Sad but true.

Blawg Review #229

 
John Harvard (1607-38).  He (1) didn't look like this, (2) didn't found Harvard, and (3) won the naming rights by dying two years after the place started.

Blawgletter® welcomes you, one and all, to this the 229th -- and our third -- Blawg Review!

The theme this week emerges, in full armor, from the brow of an Olympian figure:  a fourth child, Cambridge U. graduate, and English pastor -- none other than John Harvard.  His death 371 years ago, on September 14, 1638, explains the timing.

 
HLS, per Above the Law, lost a key contest to Duke last week.  (Elie Mystal '03 serves as Editor of ATL.  See his third year paper (on cochlear implants) here.)

Blawgletter's creds for hosting a Cantab confab?  Pretty thin, we confess.  Yes, we did vote for Barack Obama '91.  And, sure, we got our J.D. from HLS.  But that happened 25 years ago . . . and our most famous classmate styles himself an infotainer.  Plus we went elsewhere for college.  Ahem.

Fear not.  Harvud may furnish the motif and get more than its share of mentions, but we'll do a fair survey of the blawgosphere from the week that just ended.  We hope you enjoy the journey.

 
As President, Rutherford B. Hayes '45 (1822-93) okayed a bill that let women lawyers for the first time argue before the U.S. Supreme Court.

The other HLS grad who made President supplies content for The Blog at whitehouse.gov.  The latest post presses the case for health care reform.

David Lat -- a Harvard A.B. -- keeps us up to date on law firm layoffs in Above the Law, which he managing edits.

Cornell law prof Michael Dorf '90 tweaks Chief Justice John Roberts '79 for making light of corporate influence in Dorf on Law.

Joseph E. Batchelder, III, offers his views about Securities and Exchange Commission rules and a new statute that aim to cabin pay to corporate titans on The Harvard Law School Forum on Corporate Governance and Financial Regulation.

Iustia Lexo Cano advises:

Dear Peter Wiggin: This letter is to inform you that you have received enough upvotes on your reddit comments to become president of the world.  Please be at the UN tomorrow at 8:00 sharp.

 
Cass R. Sunstein.  He doesn't look that scary.

The Washington Independent notes that U.S. Senators held up a vote on making HLS prof Cass Sunstein '78 the head of the White House Office of Information and Regulatory Affairs.  Their worry?  That he will ban hunting and let critters file lawsuits. 

Law Dork points out that Sunstein won the battle 57-40.

Tim Nuccio rants about an HLR case note that decried the demise of a Temple U. code barring "expressive, visual or physical conduct of a sexual or gender-motivated nature" if it had a bad purpose or effect.  The open letter to HLR Dean Martha Minow mentions that the author "will be attending law school next year and [that] I am extensively interested in joining a law review and publishing my own articles."

Over at John Palfrey, we learn of musings by "the managing partners of some of the world's leading law firms" -- none from the U.S.  The MPs' thoughts include this bit:

A truly consistently first-class firm — the law firm equivalent, they say, of the Four Seasons in the hotel business — will continue to be able to charge a premium and will succeed.  If you can’t be consistently first-class across all offices, don’t try it.

Sports Law Blog hails the advent of Harvard Journal of Sports and Entertainment Law.

The Harvard library system just rolled out its Digital Access to Scholarship at Harvard service.  And you don't need a Harvard degree to use it!

DASH includes the Journal of Legal Analysis, which this summer printed the second number of its first issue.  Two of the JLA items deal with how judges decide cases.

Above the Law discloses that HLS will cut back on the free coffee.

The Situationist ponders the effect of Senator Edward Kennedy's death on health care reform.  It will serve "as a tool for greater Democratic engagement."  Of course.

Ex-HLS Dean Elena Kagan '86 made her Supreme Court debut on Sept. 10 in Citizens United v. Federal Election Comm'n, No. 08-205 (U.S.).  The case involves the first amendment right of corporations to speak via checkbook.  Transcript here.

Speaking of Citizens United, Jeffrey Toobin '86 urges the Chief Justice to "support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace" and not to "hand down a broad, activist decision that turns our political system upside down."  "John Marshall or Earl Warren: the choice is his."

Over at Likelihood of Confusion, we hear of a trademark tussel between McDonald's and McCurrys in Bangkok:

Now, I’ve been on this story like grease on fries since forever.  McDonald’s is surely getting the home-town treatment here.  But any doubts I ever may have had that Ronald is in the right are dispelled whenever I read the phrase, “McCurrys Web site says that the name stands for ‘Malaysian Chicken Curry.’”  That’s right up there with the best of the transparently fake defenses — further proof that the Golden Arches guys are being treated like clowns.  

idealawg links us to an online Discover article on Truth and Memory.  The upshot?  What any police officer and trial lawyer will tell you:  memories change.

The always-cheery Richard Posner '62 riffs on "Unemployment and Depression" at The Becker-Posner Blog.

Robert Ambrogi with Media Law exposes shocking new facts about a town near the site of witch trials in the 1690s.  The selectmen of Hamilton have met in secret to talk municipal business, a burning-at-the-stake offense under the Open Meeting Law.

AdamsDrafting comes out for "confidentiality agreement" instead of "nondisclosure agreement".  AD likes putting things in the positive, you see.  It also warns against putting a hyphen after "non".

Ernie the Attorney waxes philosophical -- about writing and standing on his head.  Ernie observes:

“The problem is we think we exist,” says Natalie Goldberg — author of Writing Down the Bones. Her point is that we should write and not worry about what other people might think of what we say. We are not what we think and yet that is how we see ourselves. As though our existence is established by our thoughts.

Mickey as the Sorcerer's Apprentice in Fantasia (1940).

Jordan Furlong writes about "The apprenticeship marketplace" for Law21.ca.  Clients don't want to pay for on-the-job training of newbies, he says.  Make the young ones apprentice, he suggests.

Paul Horwitz advises against giving profs what you think they want:

This approach yields few long-term benefits and only uncertain short-term benefits.  In my experience, the very best students acquire and apply a set of skills -- reading a case or an exam question carefully, thinking about all its implications, thinking about both how to unpack it and how to "pack" it into a theme or ruling, thinking about how one case or subject matter connects with others and what big picture or set of themes emerges from all of this, producing an analysis that makes use of these conclusions in a concise and targeted way -- that can be used across the board in both law school and legal practice.

PrawfsBlawg, "On Not Gaming the Law School System".

Scotusblog reports that Gitmo may soon expel many of those it has for so long kept behind chain link.  Some would rather stay.  Their native lands might treat them even worse.

Ever the sassy one, The Volokh Conspiracy relates a case in Finland.  A member of the Helsinki city council said ugly things about Islam and Mohammed.  His attack won him a fine of 330 Euros.

Should mediators intervene in religious conflicts?  Check out ADR Prof Law this week on that issue.

Ms.JD offers how-to-network advice to law students.  She ends with:

I get creative and focus on situations and relationships that are grounded in some mutually shared experience or interest. Those are the ones that are easiest to nurture and most likely to bear fruit.   

 
The new Kindle DX.

The University of Chicago Faculty Blog tells why the outfit that sells you an e-book reader doesn't care if someone steals it from you.  The thief likely will buy more e-books, and so will you -- plus, you'll pay for another Kindle, too!

Abiola Inniss updates us in Caribbean Net News about intellectual property rights in Guyana and calls for legislation to address problems.

Last but far from least, Adam Liptak, on The Caucus Blog, describes the first official Court day of new Associate Justice Sonia Sotomayor.

*    *    *    *

That does it for us this time.  A big thanks to Victoria Pynchon for her help.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Quote of the Day: Scott Adams

Pointy-hair boss:  I don't know how to be a lawyer.

Catbert:  That only matters if you take cases on a contingency basis.

Scott Adams, Dilbert, Sept. 9, 2009.

Frankfurter Quare Clausum Fregit

One of Blawgletter's partners applied with the Oscar Mayer company to drive one of its Wienermobiles.  He didn't get the gig.  Or maybe he did but declined.  Wisely.

A news report today called that bit of info to mind.  It dealt with a visit by an OM cold cut car to the deck and garage of a home in Mount Pleasant, Wisconsin.  The article notes:

Oscar Mayer spokeswoman Sydney Lindner apologized for any inconvenience to the homeowner and said insurance would cover the damage. The company has six Wienermobiles nationwide, she said.

"We expect to be back on the hot dog highways spreading miles of smiles in no time," she said.

The scene looked like this:

 

 The photo makes our feed hungry.