University of Louisville Law Faculty Blog

fiduciary informed consent

When a court adds the fiduciary aspect to regular informed consent, it generally does not require proof by expert testimony.  The financial conflict that a doctor should disclose will be understood by the jury without an expert witness. The "regular" informed consent will still have to be proved in the usual manner.

I say MED-ve-dev, you say med-VYEHD-yev, let’s call the whole thing off

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During the presidential debate last Tuesday, NBC’s Tim Russert made a big deal out of the candidates’ ability to say the name of Dmitry Medvedev, the pliant functionary who Clinton correctly called “Putin’s handpicked successor" but stumbled over the correct pronunciation of his name. (Obama, perhaps wisely, didn't even try). Russert’s smugness was no doubt due to his access to pronunciation guides and his ability to practice a difficult name before employing it in the trivial gotcha game that passes for modern political journalism. Now, unless you run for president, you will likely not be subject to juvenile mind games by snarky gasbags like Russert. But you may want to correctly pronounce the names of foreign leaders and distant lands and, thanks to the Voice of America, you will be able to access the same kind high-quality tools that TV anchors use.

Broadcasters have long relied on reliable pronunciation guides but these tools were usually not available to the public. The guide privately maintained by the BBC’s Pronunciation Unit is the granddaddy of these tools and a current version was recently offered for sale in an affordable book form. (Something especially useful for those of us who like to opine on world affairs in an Oxbridge accent). In the states, the AP has a regularly updated guide available only to subscribers, but bootlegged older versions regularly pop up on websites. Unfortunately, newer names are still circulated privately and generally it’s the newer presidents, tyrants and rebels that beg for pronunciation assistance.

However, the publicly funded Voice of America has an excellent, regularly updated and completely free guide at http://names.voa.gov. It uses a simplified notation system that does not use diacriticals or symbols, but also provides MP3s of the names pronounced. Textual pages explain its methodology, its sources, and give more details on its pronunciation rules.

The BBC, AP and VOA guides give assistance on the names in the news, but occasionally a question arises over older names, obscure geographic locations, and characters in literature and mythology. In this case, I usually turn to some well-worn tools. For personal names, I refer to the first edition of Webster's Biographical Dictionary (1951) and its latest incarnation Merriam-Webster's Biographical Dictionary. The new version dropped hundreds of names but added almost as many; together used together they are fairly complete. Merriam-Webster's Geographical Dictionary is a solid source for place names. Webster’s Second International Dictionary (1934 and other printings) is a great source for help pronouncing the characters of mythic, biblical, and English literary history. The Online Merriam-Webster Dictionary also has pronunciation data (and audio cues) for many geographic and literary names.

Legal Writing Tip - Peer Editing

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This week, the students in my class edited each others' briefs.  As discussed in Editing Tips for the Busy Attorney, having a colleague edit one's work can help an attorney "avoid small errors, and eliminate the potential for a big negative impact."

Tactic One: Ask a colleague, friend, or

relative to swap editing

 

Often attorneys are hesitant to ask a

colleague to edit because it "wastes" the

colleague's time. Yet an agreement with

a colleague to edit each others' work is a

valuable trade for both people. It is difficult

for a reader to catch her own errors

because she understands the ideas she

hopes to convey and is familiar with the

document. Someone else is likely to

catch errors that the author will not

notice. The author, thus, benefits

immensely from a colleague's edits. The

editor too benefits, as each opportunity is

one to hone her own editing skills.

Interested in other tactics?  The article discusses three others.

New Harvard Digital Collection Highlights British Crime Broadsides

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The "Law and Order" and "CSI" of the 18th and 19th century were the half-penny broadsides which broadcasted the lurid details of sensational crimes, trials and hangings. The Harvard Law Library has announced the launch of a new digital collection "highlighting its extensive holdings of crime broadsides." It can be viewed at http://broadsides.law.harvard.edu.

From Harvard: "Just as programs are sold at sporting events today, broadsides--styled at the time as "Last Dying Speeches" or "Bloody Murders"--were sold to the udiences that gathered to witness public executions in eighteenth- and ineteenth-century Britain. The Library's collection of more than 500 of hese broadsides is one of the largest recorded and, to our knowledge, the first to be digitized in its entirety. The examples digitized span the ears 1707 to 1891 and include accounts of executions for such crimes as rson, assault, counterfeiting, horse theft, murder, rape, robbery, and reason. Many of the broadsides vividly describe the results of sentences anded down at London's central criminal court, the Old Bailey, the proceedings of which are now available online at http://www.oldbaileyonline.org."

 

New Blog on Land and the Environment: Mapping the Landscape

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A new blog launches to provide readers with resources on land use and the environment.  "Mapping the Landscape" will feature abstracts of and links to recent publications that address the intersection of land use and environmental issues.  Each blog entry will begin with a short explanatory statement about the importance or usefulness of the featured resource, followed by an abstract and a link to the publication.  The blog will appear weekly (or more frequently at times) and will initially feature articles freely downloadable from the Social Science Research Network.  Many of the posting will relate to themes of environmental responsibility in land use.  Watch for the posting on the first resource in the next few days.

Tony Arnold

Boehl Chair in Property and Land Use

Professor of Law & Affiliated Professor of Urban Planning

Chair of the Center for Land Use and Environmental Responsibility

University of Louisville

A student's connection of poetry to property class

I enjoyed this post on our very active Blackboard discussion group.  I think it is worth sharing (with Kevin's permission) because it shows a core law course shedding light on an extra-legal pleasure:

 

Property, Lawyering Skills and Emily D   Author: Kevin Monsour

Has anyone else noticed that things read differently after a semester of Property (not to mention after 1.5 years of law school).  I stumbled across this this morning. It's Emily Dickinson talking about a garden being overtaken by winter.  For context:  her father was an attorney, they lost their farm when she was a child, and "Shaw" was Chief Justice of state SC.  (yes, I googled it).  Shaw was also, apparantly, a laborer who worked on the family land.  So beyond the metaphor for Emily's struggle with nature over her garden, is an actual property dispute.  (So in essence, to deconstruct it, it is sort of an un-metaphor)

Anyway, a little light property poetry:

#116

 

I had some things that I called mine –

And God, that he called his,

Till, recently a rival Claim

Disturbed these amities.

 

The property, my garden,

Which having sown with care,

He claims the pretty acre,

And sends a Bailiff there.

 

The station of the parties

Forbids publicity,

But Justice is sublimer

Than arms, or pedigree.

 

I’ll institute an “Action” –

I’ll vindicate the law –

Jove! Choose your counsel –

I retain “Shaw”!

 

 

Supreme Court on Contracts Incorporating Arbitration Service's Rules

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I just now had the chance to read Preston v. Ferrer, No. 06-1463 (U.S. Feb. 20, 2008).   In Preston, the Court held "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA."  The Court mentions that when a contract incorporates the rules of a private arbitration service, such as the American Arbitration Association, those rules "trump" a choice-of-law clause.  This discussion is a nice reminder that you should be familiar with the rules of any designated private arbitration service when representing a party drafting or entering into an arbitration agreement.  (For discussion of some rules you might consider adopting based on lawyering skills, see my forthcoming article on the subject.)

Legal Writing Tip - Fact Persuasion Techniques

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This week my class looked at a sample set of Statements of Facts in opposing briefs.  We identified some fact persuasion techniques that were used well.  They are all good techniques to consider using if you are writing a Statement of Facts.

     1. Writing the statement of facts from the client's viewpoint.

     2. Juxtaposing material adverse facts with material favorable facts in order to deemphasize the adverse facts.

     3. Using name and title to humanize the client.

     4. Using a descriptive term rather than names to dehumanize certain people or entities related to the opposing party.

     5. Using detailed description to emphasize favorable facts.

     6. Using concrete nouns and verbs to emphasize favorable facts.

     7. Using the passive voice to intentionally hide the actor.

     8. Using a brief quotation for emphasis.

Generally, repetition can also be used as a fact persuasion technique.  We noticed, however, that one brief had repeatedly used a specific adjective to describe the opposing party.  We felt the adjective was overused.  This serves as a reminder that fact persuasion techniques should be used judiciously to be effective; if the technique is apparent to the reader, it may fail to persuade.

I would like to thank all of my students for identifying these techniques in use!

On-line Writing Courses

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Amy Quinn has just alerted me that her organization has posted a list of 50 online writing courses open for public enrollment.  While the courses do not pertain directly to legal writing, some of them, such as rhetoric or academic prose, may be of interest to practitioners or law students.

Legal Writing Tip - The Primacy and Recency Effects in a Statement of Facts

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This week my class discussed writing a persuasive Statement of Facts.  We talked about what to include (and what not to include), how to organize a Statement of Facts, and different writing techniques available to increase the likelihood that the reader will find the story persuasive.

We again focused on the "primacy effect."  (For prior discussion of the "primacy effect," click here.)  We also discussed the "recency effect."  The "recency effect" is a cognitive psychological principle that the last information discussed lingers in the reader or listener's mind and is remembered well.

Based on these principles, we discussed the persuasive value of structuring a Statement of Facts to lead with a paragraph focused on legally relevant facts favorable to the client and to conclude with a paragraph focused on the same type of facts.  On the flip side, including material adverse facts in middle paragraphs de-emphasizes those facts.


Similarly, using clauses with favorable facts to begin and end paragraphs is an easy-to-use persuasive writing technique.  Placing adverse facts in the middle of the paragraph is a related persuasive writing technique.