Fall 2017, Rock, Paper, Scissors, Trial!

Litigation & Trials

Fall 2017, Rock, Paper, Scissors, Trial!

Litigation Journal Fall 2017

Expert Witnesses

Effective Strategies for Cross-Examining an Expert Witness

Thomas C. O’Brien and David D. O’Brien

Most lawyers lose ground when cross-examining experts. Here’s how to avoid doing so.

Appellate Practice

Amicus Practice in the Supreme Court: Answering Hypotheticals Before They Are Asked

Jerrold J. Ganzfried

A few simple steps provide practical guidance for traversing today’s amicus landscape efficiently and effectively.

Mediation

A Magistrate Judge’s Plunge into the World of Private Mediation

Hon. Frank Maas (Ret.)

A former judge reexamines the roles of settlement and mediation.

Civil Practice & Procedure

Nine Tips for Civil Trials from a Prosecutor Turned Judge

Hon. Gregg J. Costa

What civil litigators can learn from their trial-hardened colleagues in the criminal bar.

How to Construct an Effective Moot Court

Dori Bernstein

A moot court allows counsel to frame an argument, respond to questions, and convey a client’s position most effectively.

Bankruptcy

When Bankruptcy Intervenes : The Pros and Cons of Bankruptcy Court Jurisdiction

David J. Richardson

The pros and cons of bankruptcy court jurisdiction.

Preparing for Trial in an Unfamiliar Small Town

Michael P. Lynn

Getting to know the jury pool is more subtle and rewarding than a simple mock trial and a short talk with local counsel.

Civil Rights & Constitution

Opening Statement: When our Legal System Failed: The Japanese Internment Camps of the 1940s

Koji F. Fukumura

As lawyers, we guide ourselves by ethical principles to advance only legally cognizable arguments and reliable factual assertions. It is a system, executed correctly, that should be impervious to the vagaries of political whim, the will of the mob, or undue influence, and that should focus solely on ascertaining the facts and upholding the rule of law.

Criminal

From the Bench: How Congress, the U.S. Sentencing Commission, and Federal Judges Contribute to Mass Incarceration

Hon. Lynn Adelman

The United States today has a serious over-punishment problem. Beginning in the 1960s and ’70s, the country embarked on a shift in penal policies, tripling the percentage of convicted felons sentenced to prison and doubling the length of their sentences.

Technology

Global Litigator: Asia’s Data Transfer Landscape—As Diverse as Its Cultures

Vasu B. Muthyala and Jason J. Kang

In recent years, multinational corporations (MNCs) have increasingly faced government investigations stemming from their Asian operations, including investigations relating to corruption, money laundering, and sanctions. In 2016, the Asia-Pacific region accounted for almost one-third of the total fines and penalties the U.S. Department of Justice assessed in Foreign Corrupt Practices Act enforcement actions. At the same time, many Asian jurisdictions have established and are enforcing data protection regimes governing the transfer of data outside their jurisdiction. Running afoul of these rules can have serious consequences. As a result, MNCs routinely must navigate local data protection laws in attempts to comply with U.S. requests for information

Advance Sheet: Is There Any Virtue in Hypocrisy?

Robert E. Shapiro

Few events during the early days of the Trump administration were more unsettling to the legal community than the personal attack our new president unleashed on Judge Gonzalo P. Curiel, the judge handling two of the legal proceedings against Trump University and Mr. Trump himself. Low v. Trump Univ., No. 3:10-cv-00940; Cohen v. Donald Trump, No. 3:13-cv-02519 (S.D. Cal.)

Litigation & Trials

Sidebar: Adapt to Your Audience

Kenneth P. Nolan

In college, I worked weekends as a copy boy for the New York Times. After a night of too many cold Budweisers and other stimulants, I’d sleep a few hours, then hop the subway to sleazy Times Square where I’d do menial chores for the guys who wrote the editorials that shaped world opinion.

Practice Marketing

Scruples: Responding to Negative Online Reviews

Our law firm handled an employment discrimination case for a client, Dee,” Paradox growled. “Dee set us up for failure. The employer kept poking holes in Dee’s story. Then Dee became totally uncooperative.

Military & Veterans

A Deserter and Confessed Traitor: The Amazing but True Story of Army Lieutenant Martin J. Monti Jr.

Fred L. Borch

The amazing but true story of Lieutenant Monti’s desertion, treason, and confession.

Ethics

Ethics: Threatening Litigation

Bruce Green

In Ferster v. Ferster, [2016] EWCA (Civ) 717, three disputatious brothers owned an English Internet gaming company. Two teamed up to cause the company to sue the third, Jonathan, for breach of fiduciary duty and then offered to resolve the dispute by selling Jonathan their shares in the company.

Lawyering: Bring Back the Generalist

Earnest DeLoach Jr.

Once upon a time, in the days before third-down running backs, middle relievers, and three-point specialists, being a “generalist”—one equally skilled at playing multiple positions when the need arose—was a celebrated and rare talent. So-called “five tool” baseball players like Ken Griffey Jr. and “two way” football players in the mold of Jim Thorpe were legendary.