Summer 2011, Revision

Preparing a Grand Jury Witness: Sweaty Palms, Racing Heartbeat

Stephen D. Brown, Christine C. Levin

Grand juries have different rules from trials, and therefore require a different strategy. To avoid potential traps, know how to prepare a client to testify.

Alternative Dispute Resolution

Reimagining Arbitration

Richard Chernick, Zela Claiborne

Critics feel that arbitration has become as expensive and time-consuming as a trial, but an advocate argues that with rules that hold down costs and time spent, arbitration has a bright future.

Advice to Young Associates Who Want to Be Trial Lawyers

Kellye L. Fabian

A young lawyer shares her tips on how to escape the paper chase and get into the courtroom.

Government

Balancing the Duty to Prosecute and the Obligation to Do Justice

Robert N. Miller

Prosecutors have broad discretion in choosing whether to bring a case. A former prosecutor argues that this balance between evidence and community standards results in politics in the best sense.

Litigation & Trials

False Confessions

Brandon L. Garrett

Confessions are powerful in the courtroom, but not all confessions are genuine. Sometimes details that make a confession seem believable are unintentionally supplied by the police.

Opening Statement: Litigation Revisioned

Hilarie Bass

It is with great pride that I introduce you to the redesigned Litigation. After 38 years, the publication that many people most closely associate with their membership in the Section of Litigation has been updated. Along with the great authors, timely topics, practical insights from the courtroom, and provocative interviews, readers will find several new columns, innovations such as a judge’s response to one of our features, and a refreshed design. Additionally, in the near future, our members will be able to digitally access and search past issues of journal content. Best of all, you will soon be able to access new issues of Litigation on tablet computers such as an iPad through the Litigation Journal Application.

From the Bench: Are Settlements Sacrosanct?

Jed S. Rakoff

When should a judge turn down a settlement that is presented for the judge’s approval? Some would say never, but the answer is neither yes nor no, but rather, “it depends.”

iWitness: Reining in E-Discovery

Geraldine Soat Brown

Electronic discovery is more important than ever, but receiving a request for ESI does not necessarily condemn a client to an expensive hunt through long-abandoned formats.

On the Papers: A New Approach to Legal Writing

George D. Gopen

Much of what you have been taught about writing is wrong. A professor of rhetoric shares his insights.

Global Litigator: Successful Depositions in International Litigation

Craig Allely

Navigating the complex, confusing rules applicable to foreign depositions and transborder discovery can be confusing, but litigators can minimize problems by following the steps described in this article.

Advance Sheet: Looking Through the Wrong End of the Telescope

Robert E. Shapiro

The action in the discovery process has shifted even more fundamentally from the learning of facts to the retrieval of documents.

Sidebar: Lies We Tell Ourselves

Kenneth P. Nolan

Trial lawyers are entertainers of a kind, but must remember to separate reality from illusion--at least in their own minds.

Scruples: Handling Flat Fees

Michael Downey

New rulings add details to the practice of charging fixed fees.

E-Discovery: Sampling Helps Keep Relevance Relevant

William Hamilton

Each era’s dispute resolution process must work in accordance with the predominant information formats of the time. Unfortunately, the modern litigation and discovery processes do not play nice with electronically stored information (ESI).

Ethics: The Perils of New Technology

Bruce A. Green

You are defending a company accused of employment discrimination. The company has uncovered some very helpful new documents. It turns out that when the company fired the plaintiff, it confiscated her company-issued laptop and sent it to a computer forensic expert to recover the files. The expert recovered a lot, including emails that the plaintiff sent through her personal, web-based email account—the password protection was no obstacle. Those emails between the plaintiff and her lawyer would be useful in the course of discovery. Now that the emails are in your hands, what is your reaction? “Gentlemen don’t read each other’s emails” or “I’m gonna milk ’em for all they’re worth”?

Civil Rights & Constitution

Legal Lore: The Killing of a Master by His Servant

Fred L. Borch

On January 23, 1746, “Eve, a Negro woman slave lately belonging to Peter Mountague” was found guilty of murdering her master. All that is known about Eve, her trial, and the horrific punishment meted out to her is contained in a two-page handwritten “memorandum” in the record books of the Clerk of Court, Orange County, Virginia.

Trial Tactics: Of Demons and Other Acronyms

Charles L. Babcock

As trial lawyers, we are always striving to tell our client’s story in ways that will be persuasive and resonate with the jury. The use of acronyms can be helpful, especially in long trials. Here is an example.

Freedom of Speech: Inglorious Bastards and Patriotic Americans

Charles D. Tobin

Why do we rely on the expressions of despicable people to bring us such great First Amendment law? Can anyone envision a more unlikeable group than the Westboro Baptist Church crowd? Did they really have to pick public property 1,000 feet from the funeral of a war hero, Marine Lance Corporal Matthew Snyder, to protest their dislike for American society’s growing acceptance of gay people?