As a consequence of requests from clients or prospective clients, lawyers are often placed in a p... more As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio). But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This paper argues that plaintiffs can draw analogies to doctrines of undue influence and breach of fiduciary duty, while defendants can invoke an analogy to the business judgment rule.
... Casey, 505 US at 860 (citation omitted). Page 5. Ching/INVERTING THE VIABILITY TEST 41 pregna... more ... Casey, 505 US at 860 (citation omitted). Page 5. Ching/INVERTING THE VIABILITY TEST 41 pregnancy and the state's interest in safeguard-ing the life of the fetus allows the state to im-pose restrictions aimed at preserving fetal life earlier than it could at the time of the Roe deci ...
Like other rhetoricians, lawyers address their statements to particular audiences, and they shape... more Like other rhetoricians, lawyers address their statements to particular audiences, and they shape their arguments in light of the characteristics of those audiences. In addressing skeptical audiences, lawyers will find that narratives structured as stories tend to be more persuasive than more syllogistic forms of verbal reasoning. In contrast to the straightforward lines of logical reasoning in syllogisms, narratives persuade by providing vicarious experiences for their audiences.Drawing an analogy between the client’s situation and a familiar story can be a particularly persuasive use of narrative. A well-chosen analogy accomplishes much of the work of persuasion for the advocate, because the analogy implicitly provides background information that the advocate does not have to spend time explaining. An effective analogy compares the current situation with another situation that is familiar, that has some emotional resonance, and that is free of unintended associations.
Narrative coherence (the context in which statements are made) and narrative integrity (protectin... more Narrative coherence (the context in which statements are made) and narrative integrity (protecting a witness’ statements from "contamination" by extrinsic narratives) shape some evidentiary rules and practices. For example, allowing or restricting leading questions usually reflects whose story is being told - the witness’ own narrative, or one presented by a cross-examining attorney. In addition, prohibiting the use of "speaking objections" protects against attorneys’ arguments being presented at inappropriate times, and also protects against impermissible coaching of witnesses while they are being questioned by the opposing attorney. Furthermore, the development of context in dealing with embedded narratives provides a better explanation than more conventional justifications for treating most forms of party admissions as non-hearsay (or as admissible hearsay). However, narrative considerations also suggest that - contrary to common practice, such as under Federa...
... For example, allowing or restricting leading questions usually reflects whose story is being ... more ... For example, allowing or restricting leading questions usually reflects whose story is being toldthe witness' own narrative, or one presented by a cross-examining attorney. ... 2 One observer explained that ―[t]rial advocacy is essentially a form of story-battle. ...
As a consequence of requests from clients or prospective clients, lawyers are often placed in a p... more As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio). But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This paper argues that plaintiffs can draw analogies to doctrines of undue influence and breach of fiduciary duty, while defendants can invoke an analogy to the business judgment rule.
... Casey, 505 US at 860 (citation omitted). Page 5. Ching/INVERTING THE VIABILITY TEST 41 pregna... more ... Casey, 505 US at 860 (citation omitted). Page 5. Ching/INVERTING THE VIABILITY TEST 41 pregnancy and the state's interest in safeguard-ing the life of the fetus allows the state to im-pose restrictions aimed at preserving fetal life earlier than it could at the time of the Roe deci ...
Like other rhetoricians, lawyers address their statements to particular audiences, and they shape... more Like other rhetoricians, lawyers address their statements to particular audiences, and they shape their arguments in light of the characteristics of those audiences. In addressing skeptical audiences, lawyers will find that narratives structured as stories tend to be more persuasive than more syllogistic forms of verbal reasoning. In contrast to the straightforward lines of logical reasoning in syllogisms, narratives persuade by providing vicarious experiences for their audiences.Drawing an analogy between the client’s situation and a familiar story can be a particularly persuasive use of narrative. A well-chosen analogy accomplishes much of the work of persuasion for the advocate, because the analogy implicitly provides background information that the advocate does not have to spend time explaining. An effective analogy compares the current situation with another situation that is familiar, that has some emotional resonance, and that is free of unintended associations.
Narrative coherence (the context in which statements are made) and narrative integrity (protectin... more Narrative coherence (the context in which statements are made) and narrative integrity (protecting a witness’ statements from "contamination" by extrinsic narratives) shape some evidentiary rules and practices. For example, allowing or restricting leading questions usually reflects whose story is being told - the witness’ own narrative, or one presented by a cross-examining attorney. In addition, prohibiting the use of "speaking objections" protects against attorneys’ arguments being presented at inappropriate times, and also protects against impermissible coaching of witnesses while they are being questioned by the opposing attorney. Furthermore, the development of context in dealing with embedded narratives provides a better explanation than more conventional justifications for treating most forms of party admissions as non-hearsay (or as admissible hearsay). However, narrative considerations also suggest that - contrary to common practice, such as under Federa...
... For example, allowing or restricting leading questions usually reflects whose story is being ... more ... For example, allowing or restricting leading questions usually reflects whose story is being toldthe witness' own narrative, or one presented by a cross-examining attorney. ... 2 One observer explained that ―[t]rial advocacy is essentially a form of story-battle. ...
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