Appellate arguments, and judicial opinions, often proceed from the premise that “it is never easy to prove a negative.” But that’s not always the case, as there is a difference between the “philosophical and arithmetic definitions of the word negative[.]” This article is an essential first step to understanding the difference, both to inform current
Professors Brandon Garrett and Gregory Mitchell, both of the University of Virginia Law School, argue compellingly that expert witnesses should be judged less by credentials and more by proven accuracy, in particular by their performance on proficiency tests. Their article is not merely theoretical; it draws upon data showing “false positive” identifications in latent print
One of the classic tomes for bettering appellate practice – the lawyering of briefing and argument – is Judge Ruggero Aldisert’s WINNING ON APPEAL. The 2017 update, by Law Professor Tessa Dysart and Federal Appellate Judge Leslie Southwick, is a largely worthwhile text for both the seasoned appellate practitioner and the lawyer who only occasionally
It seems redundant to say that good lawyers require and apply the tools of logic. After all, lawyering is about argument, and argument is about the design and presentation of a compelling thesis, one that can’t be refuted. Yet, surprisingly, the formal modes of logical thought are not a part of traditional law school curricula;
That story-telling is key to an opening statement – and thereafter to success at trial – should not be questioned. This article encourages rich narrative story-design and story-telling, drawing on decades of research as well as experience and intuitive understanding of persuasion theory. The thesis is best explained by the author: If a trial lawyer
The 2017 Edward D. Ohlbaum Annual Paper in Trial Advocacy Scholarship Award Winner.
The best short article available on how to write a persuasive “conclusion” section to a brief. Out with the “and for the above reasons” and in with a pithy summary that contains at least two catchy (but not catchpenny) words that you haven’t used anywhere else in your brief or motion. Keep it understated. But
More cases are won, or set up for a win, in the pre-trial context; and this largely occurs in Motions practice. There are two arts to Motions practice – drafting and the subsequent oral argument. It is for the latter that law students, novice lawyers, and some experienced lawyers should turn to Point Well Made
In a criminal litigation world where trials are few and sentencings are the norm, the art of the mitigation investigation and presentation is key. What is “mitigation?” It is the evidence that contextualizes a client’s behavior and is relevant to the degree of blameworthiness and the severity of consequence; and the art and science are
The concepts of “theme” and theory” are well known for planning a trial; but having a sentencing “theme” and “theory” may not be on every lawyer’s radar. This article persuasively shows the importance of deploying each concept when planning and presenting a sentencing case for the defendant. The author brings a special perspective, with a