Within the Scope’s Celebrity Reader Panel Project:

Five Celebrities Answer Five Interview Questions

to Celebrate Within the Scope’s 500th Posting

 

 

 

1. In what way has the internet had the greatest impact upon the practice of law?

 

CHIEF JUSTICE ERIC MAGNUSON:  The internet has made lawyers and the law accessible to lay people in ways never before possible.  I think that fact has increased citizen participation in the legal system.

 

 

ASSOCIATE JUSTICE G. BARRY ANDERSON:  The democratization of the practice of law.   It was my privilege as a young lawyer practicing in Minnesota to assist in the effort to persuade the Minnesota voting public to pass the constitutional amendment authorizing the creation of the Minnesota Court of Appeals.  At the time, I was practicing in Fairmont, in the far southwest reaches of the state.  Once the court was organized and functioning (and incidentally, it, too, is celebrating an anniversary this month – the Court of Appeals began serving the people of Minnesota 25 years ago) it began publishing opinions and releasing unpublished opinions.  If you had a subscription to Finance and Commerce, and you could find the back issue in which an unpublished opinion had appeared, all well and good.  If not, you were off to St. Paul (or somewhere else with a fancy library).   Similarly, finding district court opinions that might be useful to a litigation practitioner could be a chore.  All of this has changed with the web.  Opinions, once released, are equally available to practitioners in Minneapolis, Montevideo (the Minnesota version), or Montevideo (in Uruguay).  And if you define "internet" broadly enough to include all of the associated technological changes we've witnessed in recent years (word processing, computers, etc) the small firm or solo practice lawyer has resources previously available only to very large firms.  

 

 

GOVERNOR’S GENERAL COUNSEL KAREN JANISCH:  The internet has given lawyers the ability to work and communicate with other lawyers, the courts and their clients outside of their office location.  For many lawyers, especially women, it allows greater flexibility to manage a legal career and family. 

 

 

ASSISTANT HENNEPIN COUNTY ATTORNEY PETER ORPUT: The internet has created easy access to university size law libraries for everyone- lay person and attorney alike.  Now law review articles, case decisions from throughout the country and internationally, administrative law decisions, district court rulings and appellate briefs are available to all.  Prior to the internet, district court decisions and most administrative decisions were difficult if not impossible to obtain in a timely fashion.  Moreover, legal research has been simplified, expanded and it is all free (once one has procured a computer and Internet access).  Search portals, such as Atlaw, Findlaw, Lexis One, among many other search tools, has brought access to the best collections of legal materials to all.  The wall between the law and the people has been breached by the internet – and, indeed, that breach has been a huge boon for democracy.

 

 

MINNESOTA LAWYER ASSOCIATE EDITOR BARBARA JONES:  Clearly, legal research has been greatly expedited, which should result in better, faster and more economical legal documents. However, the internet has not only made information but also the exchange of ideas and opinions available, helping lawyers to communicate (even if they don’t know each other), develop their theories and practice law creatively.

 

 

Bonus Reply – WITHIN THE SCOPE’S E. L. LIPMAN:  As it has with many other modern enterprises, the internet has had a broadly democratizing (or, as Thomas Friedman might say, “flattening”) effect on the practice of law and the administration of justice.  I remember, not so long ago, when computerized legal research was a privilege of the “haves” and was generally out of reach of the “have-nots.”  That is much less true today.  Further, in administrative law, an internet connection means that one who resides far from the State Capitol can still be an important force in rulemaking proceedings and contested cases – and that is an important change.  Web pages, E-mail and video conferencing all pierce the old barriers that separated us.

 

 

2.  What book should every lawyer read (and why)?

 

CHIEF JUSTICE ERIC MAGNUSON:  Anthony Lewis’ Freedom for the Thought That We Hate: A Biography of the First Amendment.  I suppose that his prior work, Gideon's Trumpet, might be more inspiring, but in today's contentious society, we need to keep in mind the importance of honoring the right of those with whom we disagree to speak their minds.

 

 

ASSOCIATE JUSTICE G. BARRY ANDERSON:  This was the toughest question to answer, but it wasn't for lack of choices.   After some deliberation (but without the benefit of conferencing) my recommendation is Jean Edward Smith's fine biography of John Marshall:  John Marshall:  Definer of a Nation.  Smith's biography was published, as it happens, ten years ago (yet another anniversary).  In some respects, it's an odd choice.  It wasn't a best seller, and it is probably fair to say that because of its length, it is not as accessible as, say, To Kill a Mockingbird.  (Which would, of course, also be a contender for this list).  Still, it's very readable, and Smith tells not only the story of Marshall the intellectual who led the Court but also Marshall the man, and the latter story is fully the equal of the former.   Marshall was a Revolutionary War veteran, friend to our first President, experienced lawyer and state politician, and, less well known, was at Valley Forge in that very bitter winter.   I don't think it's possible to fully understand our judicial branch of government without understanding our judicial roots and you can't do that unless you understand John Marshall, at least to the extent that is possible.   (Smith, incidentally, has also written a fine biography of General and President Grant, which contains some surprising insights).

 

 

GOVERNOR’S GENERAL COUNSEL KAREN JANISCH:  To Kill a Mockingbird – Atticus Finch represents the virtues of a good lawyer in representation of a client, standing for justice within the community and passing those ideals onto his children.  Rereading this book as a lawyer magnifies these aspects of the book in a different way from when you may have read this book in school.   

 

 

ASSISTANT HENNEPIN COUNTY ATTORNEY PETER ORPUT:  Narrowing a recommendation to only one book is difficult; in that the discretion to choose just one makes for endless contemplation.  Still, if it has to be just one book to recommend to every lawyer then it must be Influence: The Psychology of Persuasion, by Professor Robert Cialdini.   The book teaches how to identify and understand what influences our decisions and why.  For lawyers whose job it is to persuade, it is an essential read.

 

 

MINNESOTA LAWYER ASSOCIATE EDITOR BARBARA JONES:  Books about writing inundate bookstores, but my favorite is Bird by Bird: Some Instructions on Writing and Life, by Anne Lamott.  It might seem like a strange recommendation for lawyers, but it has the best writing advice around. The author’s father once told her brother, who was writing a huge report for school, to “take it bird by bird.” That works for legal writing as well — break down your task into manageable parts, or, as Lamott says, “short assignments.” Her other advice is to write “shitty first drafts” to get the project started, and edit later. Although the book is primarily aimed at storytellers, what is a case or even a transaction but a way of telling a story?   Reading Lamott, mentally substitute the word “client” for “character,” “lawyer” for “writer” and “case narrative” or “evidence” for plot, and you’ll see that I’m right. Additionally, Lamott is very funny and warm and the book is a good read.

 

 

Bonus Reply – WITHIN THE SCOPE’S E. L. LIPMAN:  My choice is: Making Your Case: The Art of Persuading Judges. This volume is a direct pathway to improving one’s skills; and, as I wrote here, I wish I had a copy of it 20 years ago.

 

 

3. What written decision, handed down by a federal court in 2008, should every lawyer read (and why)?

 

CHIEF JUSTICE ERIC MAGNUSON:  I don't think I can answer this question.  The universe is too broad and rich.

 

 

ASSOCIATE JUSTICE G. BARRY ANDERSON:   (It is too hard to choose….)

 

 

GOVERNOR’S GENERAL COUNSEL KAREN JANISCH:  In 2008, it is rare to see cases that decide fundamental issues about the basic meaning of one of the Constitution’s original amendments.  Regardless of one’s personal views on gun control, the United State’s Supreme Court’s 2008 majority and dissenting opinions in District of Columbia v Heller provide a fascinating analysis of how to interpret constitutional language and interpret its so-called “normal” meaning.  Although the Second Amendment consists of only 27 words, the Court devotes over 150 pages to what those 27 words mean. 

 

 

ASSISTANT HENNEPIN COUNTY ATTORNEY PETER ORPUT: District of Columbia v Heller.  This case resolved a question regarding the Bill of Rights and the authors’ intent when they wrote the 2nd Amendment. The last time a question of this significance regarding our Bill of Rights had been decided was over a century ago.  As a decision it much greater than whether District of Columbia homeowners may possess a gun in their homes; it is an analysis of the meaning and intent of the authors of the Bill of Rights, as applied to us, two hundred plus years hence.

 

 

MINNESOTA LAWYER ASSOCIATE EDITOR BARBARA JONES:  Disclaimer:  I haven’t read very many federal cases outside of the 8th Circuit.  That said, this was an easy question to answer.  Boumediene v. Bush, which says that detainees at Guantanamo have access to the courts via writ of habeas corpus, is a very important case.  I happen to agree with the majority and find the case sets forth important principles of separation of powers and the rule of law, but it also offers an important history lesson in its examination of the history of habeas corpus and the law surrounding it. However, the concurrence is also valuable for a discussion of stare decisis; Chief Justice Roberts’ dissent (“certiorari should never have been granted”) should be read for exhaustion, judicial restraint and separation of powers; and Justice Scalia’s dissent should be read for its elegance and Scalia-ness.

 

Bonus Reply – WITHIN THE SCOPE’S E. L. LIPMAN:  I have two:  District of Columbia v. Heller and M.M. v. Special School District 1.  I agree with Peter Orput and Karen Janisch that Heller is indispensable reading, even if I have slightly different reasons for this choice.  For me, Heller details both the breadth of originalist methods of interpretation and raises important questions about the future direction of federalism and “local control.”  This decision also forms the key battleground in the debate between those who believe that “we are all originalists now” and those who argue that “there are no real originalists, only activists of different stripes.”  That is a debate as to which every member of the Bar should be aware.  I also urge colleagues to know about M.M.  The holdings in this case make a sea change in the way that special education disputes are presented in Minnesota and, like Heller, raise genuinely important questions of state-federal relations.

 

 

4. Reflecting upon the examples of bad lawyering that you have seen over the course of your career, is there are particular trait that lawyers who perform poorly share?

 

CHIEF JUSTICE ERIC MAGNUSON:  They don't have a specific point to their argument, and are unable to state a succinct reason for why their position should prevail.  If they have carefully thought through the issues and arguments, they should have both, and while they need to be able to debate all the subsidiary and ancillary issues, they need to understand what they want and why they should get it.

 

ASSOCIATE JUSTICE G. BARRY ANDERSON:  I can tell your readers what it isn't – it's not the lawyer that lacks polish, or stumbles some in delivery.  These are weaknesses, but are rarely fatal.  And no advocate is ever free of these problems.  But the lawyer who refuses to acknowledge the weaknesses in his or her own argument is the lawyer heading for an accident with a cliff.   And this is a problem in both written and oral advocacy.   The problem doesn't seem to be confined to less experienced lawyers, either.  The temptation seems to be overwhelming for lawyers to tell the court how each and every argument or citation advanced on behalf of the argument is a winning point and the other side is completely clueless about the truth.  This causes me to wonder why a two-week trial was necessary, if all of this "truth" was self-evident.  An argument that acknowledges the strongest point of the opponent, and then offers an explanation why it isn't determinative in THIS case, is an argument worth listening to.

 

 

GOVERNOR’S GENERAL COUNSEL KAREN JANISCH:  As lawyers we have an ethical obligation to zealously represent the interests of our client.  However, zeal is not an excuse to treat others who take competing views of the facts and the law rudely.  Disrespect and a failure to openly listen to and consider alternative position impede effective representation. 

 

 

ASSISTANT HENNEPIN COUNTY ATTORNEY PETER ORPUT:  Yes, it is unpreparedness.  Bad lawyering is rarely due to insufficient intellect among lawyers – that unfortunate trait is generally culled in law school applications, while in law school, or when attempting to pass state bar examinations.  Rather, bad lawyering is invariably due to lawyers attempting to litigate or negotiate when they are not prepared fully.  That is, many lawyers – unfortunately too many – come to court or settlement conferences without having sufficiently prepared themselves with the facts, knowledge of case law, or both.  It makes for a most difficult negotiation when one side is “winging it.”

 

 

MINNESOTA LAWYER ASSOCIATE EDITOR BARBARA JONES:  Lawyers want to perform well.  When they don’t it’s usually due to a health impairment or poor preparation, which results generally from overwork and a too-full calendar, which results from greed and hubris.  Usually.

 

 

Bonus Reply – WITHIN THE SCOPE’S E. L. LIPMAN:  The Book of Proverbs has it right:  Pride goes before the fall.  Talented advocates have a keen sense of their capabilities and their limits; and they work mindfully of both.  The bunglers do not.

 

 

5. What should "Within the Scope" try to highlight over the course of the next 500 posts?

 

CHIEF JUSTICE ERIC MAGNUSON:  The impact of inadequate resources on the quality of justice we provide to our citizens.

 

 

ASSOCIATE JUSTICE G. BARRY ANDERSON:  I've particularly enjoyed the references to podcasts on various legal topics; and I've been known to download the occasional podcast for my (slow) morning run.  Good luck with the next 500 posts.

 

 

GOVERNOR’S GENERAL COUNSEL KAREN JANISCH:  I always appreciate discussions that highlight administrative and court decisions that provide insight on how government works including those that address the unique and specific roles of the three branches of government.

 

 

ASSISTANT HENNEPIN COUNTY ATTORNEY PETER ORPUT:  I would love to read more personal anecdotes from the author!  Seriously, musings about historical events, such as your post on September 17 (my hero Hamilton, no less!) are not only fascinating, but entertaining as well.  Sandwiched in between court decisions, administrative rulings and statutory changes, those posts are welcome and pined for by many of us who read your blog “eating our peas” while yearning for the “dessert” of such digressions.  More, more!

 

 

MINNESOTA LAWYER ASSOCIATE EDITOR BARBARA JONES:  In addition to keeping the legal community informed on administrative law issues, WTS should pay attention to the legal issues of federalism and separation of powers, which will likely continue to dominate.

 

 

Bonus Reply – WITHIN THE SCOPE’S E. L. LIPMAN:  My goal is to be ever-more useful to the readers of WTS – whether you have bookmarked this page in your "Favorites" menu or were pointed here by Google.  And, as much as good manners and the Code of Conduct will permit me, I will try to present developments in the case law in ways that are thought-provoking and new.  In that respect, as it is with most everything in life, some days are certain to be better than others....  So please stay tuned.

 

 

Many thanks to our celebrity panelists and every reader of WTS!  

 

Happy 500th!