A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"
What we do, my friend, is discovery.
Discovery.
Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.
How do you know when you're finally finished with legal practice? When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love?
It's usually a discovery moment.
For one of my former law partners, it came on the heels of a five page meet and confer letter. Single spaced. When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement.
"You're not really going to send this, are you?"
"Yes, I am. Let me sign it."
"No no no no no no no. I can't let you do this."
"Yes you can. Let me sign it."
"Pleeeezzzzzzzzzzzzzzzzzz."
"Sign."
Here's the response that struck fear into the heart of an overworked legal secretary:
Whatever.
And yes. She sent it.
For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.
We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blogfor one obvious and some not so obvious reasons. The obvious reason is the word “She.” The not-so-obvious reasons are: (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.
The first woman legal blogger who joins She Negotiates to Power Her Dreams and leaves a May 3-week post beginning with the words, she negotiates, she succeeds, she networks, she resolves or she transforms will win a free ticket to the Negotiation for Women Workshop at the Pasadena Women’s City Club on June 10 (7-10 p.m.) with attorney-mediator, arbitrator and negotiation trainer Victoria Pynchon and east-coast business negotiation guru John Tinghitella.
So get ready to celebrate the woman who negotiate, network, resolve, succeed, and transform with a nod to mom for Blawg Review #263!
What women are saying about the Craving Balance Negotiation Course:
"I learned more during this hands-on negotiating course than in another higher priced class. Victoria and Lisa helped me make the emotional changes necessary to demand a higher value for my work, and taught a step by step process for getting the most from sales negotiations."
Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day. They do so by:
their reputation for success at trial;
their ability to choose the right moment to first discuss settlement;
their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
their persuasive skill set - both with opposing counsel and with the mediator;
their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
their determination to make aggressive but reasonable first offers;
their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
their ability to bring the right people to the table at the right time; and,
their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.
Some of these skills are in all litigators' arsenals. Where most litigators are the weakest is in the negotiation of settlements. I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.
Here are two new resources you should have at hand every working day. "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds.
Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace. There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really). Laywers love numbers in the way only people who don't understand them can. I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation. For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers. Do check it out.
There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator. This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.
The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for. Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%. Today Lee Jay mourns the passing of a giant in our field - Richard Millen. As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. [1]
asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.
My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games[8] he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered)[9] vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]
Law, politics, society and culture also exist in the 200-year present of conflict resolution.[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own business magazine - ForbesWoman (my part in it here). And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia. See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.
My grandparents', parents' and step-children's 20th Century was dominated by genocide[14] on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. [15]
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. [24]
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
18th Century Dispute Resolution Technology: The (Inevitably Polarizing) Adversarial System
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
[16] Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
[17] The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
[22] Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
We bloggers put a lot of work into these blogs - more work than could ever possibly be justified by ROI. We do so because we love our workand want to share it with the world; because we like to learn from other bloggers and to share our insights with them; and because we're readersand writersand, frankly, geeks!
We also blog, I think, because we always wanted to be part of the "life of the mind" that University promised to be but never quite delivered because . . . heck! we were too young to appreciate it. In my case, that meant cutting far too many classes to play PONG (yes PONG)
in the bar at The Surfer on the boardwalk at Pacific Beach just south of U.C. San Diego from which I graduated by, among other things, throwing myself on the mercy of my T.S. Eliot prof who permitted me to give him my final paper on "Burnt Norton" in the faculty dining room (thanks Jack!) as well as on Professor Lettau who let me out of the required upper division German Literature class after I flunked my translation mid-term on "Death in Venice" ("Never return to class," he said, "and I'll give you a B!")
I'm temporizing. Putting off what I'm about to say. Here it is!
SETTLE IT NOW IS THE NUMBER ONE ULTIMATE RANKED CONFLICT RESOLUTION BLOG by this obscure company. (they even gave me this prize: !!)
Because I endeavor to provide value instead of endless self-promotion in this blog, I give you a recent interview with two of the legal blogging world's foremost authorities, Robert Ambrogi and Larry Bodine. Excerpt below and full interview here (.pdf).
What are the most essential ingredients to a successful legal blog?
Ambrogi: The elements of success for a legal blog are theme, authority, consistency and voice. By theme, I mean that the blog should have a distinct focus (a topic of law, location, element of practice, target clientele, etc.). By authority, I mean that the blogger should have command of the subject and write posts that reflect that. The best posts are those that combine knowledge and insight, so that the reader will learn something about the topic and also about what the blogger thinks of the topic.
By consistency, I mean just that. Daily is good but not essential. A blogger should strive to post a couple times a week at a minimum. Better to write fewer posts of higher quality than to post a steady stream of useless information.
By voice, I mean a recognizable style. For many bloggers, this comes with time. Write for a general audience and avoid the kind of stiffness and legalese common in other forms of legal writing. [A]s with any form of marketing, [blogging] success is measured by the goals one hopes to reach. Traffic, for example, is not a measure of success if it is not coming from the blogger's potential clientele. At its simplest, success in blogging can be measured by the degree to which the blogger is able to achieve greater recognition and greater respect among those who constitute potential clients.
Bodine: Successful bloggers post frequently – once a day if possible. (I typically pre-write several days worth of posts, and time them to appear one day at a time). Successful bloggers are totally focused on their readers’ interests – they never stray off-topic and they keep out egocentric posts about being on vacation and what they saw on TV. Their content must be “unmissable” – it must make a difference in their reader’s lives. A successful blog always reflects the interests of its constituency.
As you can see, I've violated nearly all the rules but "voice" here, hoping my readers will forgive the occasional idle ramble through my stream of consciousness.
I'm happy whenever new legal bloggers contact me to ask whether I'll add them to my blog roll because it gives me an opportunity to be of service to the Blawgosphere that has done so much for me. Because I keep writing this same responsive e-mail from scratch however, I'm going to finally post my most recent free advice so that I can simply link to it next time.
Here’s how linking works.
You add blogs in which you’re interested to a news reader like google reader. You read them and find items that stir your own thoughts – that make you want to engage in a public conversation about the topic at hand.
You cite to that blog in your blog and link to it. Generally, you excerpt a bit of someone else’s post and extend the breadth or depth or reach of it.
Soon, people with a natural affinity to what you’re talking about will be citing to you and excerpting your material. If you say interesting things about settlement, negotiation, or conflict resolution in general, I’ll find you (I’ll add you to my news reader today to watch your blog grow). If I'm following you and you're practicing law and writing about it, eventually I'll see something interesting you've mentioned that I'll want to write about too. I'll excerpt a bit of your post, give you credit and link to you.
I get somewhere between 30 and 40,000 visitors a month. People who are vitally interested in your area of practice will find you because I’ve mentioned you; because I add my audience and my "authority" to your own. (See Psychology of Persuasion at the Flying Solo Blog). This will not happen as a result of your being on my "blog roll" (to which I won't add you because it's a waste of your and my time).
Before you know it, bloggers will begin arriving at your blog-door bearing gifts. It's the Blog Welcome Wagon! You'll get free advice, some of which will be good (like this) and some of which may not. I must tell you, however, that I've never received any bad advice from an active blogger.
What gifts will the Welcome Wagon bring? Lists mostly. Bloggers will tell you the location of the best schools for your children; the name of their gardener; warnings about neighborhood bullies and stores that rip you off. If your grass needs mowing or you've allowed weeds to pop up in the cracks of your sidewalk, they'll mention that too. If your Blog House gets a new paint job or adds a wing, they'll let others know it and drop by to tell you how nice it looks. Your kids will baby sit theirs. You'll be invited to neighborhood Bar-b-Q's and asked to serve on the Neighborhood Watch. If you're interested, you might eventually be elected Mayor of Your Blog Town.
Someday soon, something you write will appear in Blawg Review (for which I’m a “sherpa”). Maybe you’ll even (gasp) begin to twitter. Anonymous Ed. of Blawg Review will be in your twitter network, as will Kevin O’Keefe at Lex Blog who aggregates legal twitterers at LexTweet. Follow everyone Kevin follows. He has a HUGE twitter network of law bloggers. The Wall Street Journal’s “onespot” might follow you too and if you write something topical (the current economy is always a good bet) you’ll find your blog cited there. Then you can tell the people who poo-poo'ed your blogging effort that you were cited in the Wall Street Journal. "So there!"
Read the newspapers and magazines and watch the movies and television that your market reads and watches. Participate in their events. Speak to them in their local habitats. Share your knowledge. Link, link, link, link, link. The blogosphere is a virtuous circle of good intentions and enlightened self-interest.
In EVERYTHING you do, refer to your blog. Put it on your business cards. Mention it when you speak to other lawyers or to local business groups. Walk your talk. Have integrity. Be consistent. Be interesting, novel, innovative, passionate, wise and generous. Be of service. Always say "yes" to a Blawgosphere request, even if the "yes" is wrapped in a "no" (this, for instance, which says "no" to the blog roll request but yes to your participation in my network as a P.I. blogger).
Welcome. The water’s warm and the natives friendly. Feel free to call or write for blog advice anytime. And thanks for letting me be of service.
It's law week in Canada and the brilliantly prolific Jordan Furlong at Law21 celebrates justice with Blawg Review #207: All the News that Fits, helpfully including the following outline for his comprehensive review of the best posts in last week's Blawgosphere. If you haven't yet given yourself the pleasure of Jordan's prose, this week is the week to do so.
Section D - Life
Section E - Sports
Section F - Technology
Section G - Education
Section H - Community
Section I - Religion
Section J - Comics
Section K - Editorial
As Jordan reminds us
Exactly four years ago this week, Blawg Review made its debut. Two hundred and seven installations later — stop and think about that for a second, of all the work by Ed, Colin,Victoria and others — it’s still going strong. If you’re a law blogger who hasn’t yet stepped up and hosted this brilliant and critically important example of citizen legal journalism, you owe it — to yourself, to your blawgging colleagues, and most importantly, to the public at large that needs to hear what we know — to sign up now.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues
They're in the AmLaw100 or 200, serve Fortune 50 or 500 clients and attended a top 10 Tier 1 law school as reported yearly by the U.S. World and News Report.
Perhaps this addiction to knowing one's precise place among one's peers started with the LSAT, the SAT or even the PSAT.
In my elementary school, we had two classes for each grade and I knew I was with the "smart kids" as early as grade three. I'm able to remember this because I learned I was being channeled into what we called "the dumb kids' class" for my fourth grade school year. I raced home crying; mom called the school; and, next thing you knew, all was right with my world again: I'd been moved to Mrs. Wells 4th grade class with all of my "smart kid" friends.
That's the precise moment I first believed that my alleged intelligence was premised upon a fraud. My "mommy" got me in.
I wonder how many lawyers have had similar experiences or live with similar fears. Our fixation on pinning ourselves to charts like insects on a board certainly suggests that I am not alone.
That being said, I announce with the usual degree of cynicism concerning any ranking the announcement that the Settle It Now Blog made it into the Avvo list of the top 50 (never before heard of Alexa list) of top law blogs (no. 33).
Sigh. I'm 57 and still "in recovery" from that third grade morality play (yes, I felt guilty about being with the "smart" kids ever after).
Here are my personal and institutional statistics, followed by novelist Don DeLillo's great meditation on the same theme.
LSAT: a shameful 613
to give you an idea of what 613 meant, "[b]y 1980 [the year I graduated], the LSAT mean for students entering the University of Illinois College of Law (no. 27) was 679 (from The Rise of the LSAT)
679 was the LSAT median for Harvard's class of 1969 if you're comparing the brain size of younger and older attorneys.
America is a sanitarium for every kind of statistic. We take care of them. We try to understand them. We do what we can to make them well. Numbers are important because whatever fears we might have concerning the shattering of our minds are largely dispelled by the satisfaction of knowing precisely how we are being driven mad, at what decibel rating, what mach-ratio, what force of aerodynamic drag. So there is a transferred madness, a doubling, between the numbers themselves and those who make them and care for them. We need them badly ; there is no arguing that point. With numbers we are able to conceal doubt. Numbers render the present day endurable, herald the impressive excesses of the future and stocked with a fine deceptive configuration our memories, such as they are, of the past. We are all natural scientists. War or peace, we thrive on the body-count. If I were on my death-bed today, and did not know the date, my cells would probably refuse to surrender. Without a calendar, a stopwatch, a measuring cup on the night table, I couldn’t possibly know how to die.
Here at Above the Law, we thrive on taking a vat of hydrochloric acid to the veneer of the legal profession and exposing the original craftsmanship underneath. Nothing is sacred.
When given the opportunity to serve for Blawg Review -- the "blog carnival for everyone interested in law" -- I was excited to take Above the Law's brand of rousing rabble out on the road. How many "Sacred Cows" are out there? How many can I hunt and grill? And as Denise Howell might ask me on her "Yo Comments Are Whack" podcast: "how many cow jokes can you take in one week before you end up on a liposuction table?" Eric Turkewitz already tussled with Oprah this week, so the easiest mark has already been bagged.
Of course, ATL is also a news organization. So while I had high hopes of continuing my friendly banter with Loyola Law School Dean Victor Gold, the news of the week inexorably pushes me in one direction. Luckily, it turns out that the thing everybody was blogging about this week is the biggest sacred cow of all, and it is ripe for poaching.
Put down those canned objections to interrogatories and read on here.
From Diana Skaggs'
Louisville Divorce Law Journal -
"In browsing [Victoria's ADR blogs] you'll no doubt stumble upon some
information that will make you wonder how you could have practiced law
without it. Subscribe to the feeds and you'll regularly receive some of the
best CLE on the net. I wish it were required reading for all mediators."
I'm an attorney who is currently a Masters Degree candidate in
Mediation and Conflict Studies. I do not have much time to read
blogs. Thanks to the Settle It Now Negotiation Blog, I do not need
to. Your posts possess the perfect blend of thought-provoking
content and practical tools for anyone working in the trenches of
dispute resolution. I look forward to reading the blog because I
know its content will always be highly relevant to the issues I
grapple with, both as an attorney and as a mediator. Thank you for
providing us with such a great free resource. - Juliana Hoyt,
attorney and mediation student, Vermont.
What we do, my friend, is discovery. 
The Discovery Referee Speaks! And she is a Goddess. Goddess Kathy Gallo to be exact.
Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day. They do so by:
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My 
First and most importantly, I suppose, are the
18th Century Dispute Resolution Technology: The (.jpg)
I have no idea whatsoever what 
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Lawyers are shrewd keepers of the score. 
