Legal Writing and the Rules of Professional ResponsibilityLegal argument based on a knowingly false...
Transcript of Legal Writing and the Rules of Professional ResponsibilityLegal argument based on a knowingly false...
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Legal Writing and the Rules of Professional Responsibility
Sybil Dunlop
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Honesty and the administration of justice
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Credibility and your ethical obligations
1. Research 2. Writing 3. Evaluation
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Research
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Legal argument based on a knowingly false representation of law constitutes dishonesty toward the
tribunal.
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Writing
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Credibility and your ethical obligations
United States ex rel. Holmes v. Northrop Grumman Corp., No. 1:13cv85-HSO-RHW, 2015 U.S. Dist. LEXIS 71804, at *14 (S.D. Miss. June 3, 2015)
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Credibility and your ethical obligations
Gallo v. Cumberland Farms, Inc., No. MMXCV086000459S, 2009 Conn. Super. LEXIS 3169, at *1 (Super. Ct. Nov. 18, 2009)
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Credibility and your ethical obligations
Frivolous arguments
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Credibility and your ethical obligations
Threats of criminal prosecution
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Credibility and your ethical obligations
Rule 3.1 Meritorious Claims and Contentions
Rule 3.4 Fairness to Opposing Party and Counsel
Rule 4.1 Truthfulness in Statements to Others
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Credibility and your ethical obligations
Plagiarism and ghostwriting
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Credibility and your ethical obligations
In re Harper, 223 A.D.2d 200 (2d Dep’t 1996)
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Credibility and your ethical obligations
Pagan Velez v. Laboy Alvarado, 145 F. Supp. 2d 146 (D. P.R. 2001)
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Credibility and your ethical obligations
Bad Writing
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Evaluation
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What is implicit bias?
The bias in judgment and behavior that results from subtle cognitive processes that operate below
conscious awareness and without intentional control
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OUR BUSY BRAINS SEE FACES
EVERYWHERE
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.
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We don’t just see things that aren’t there: Our brains also perceive things that aren’t there.
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The color of a coffee mug can alter the way coffee tastes.
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Is there a way to measure thoughts outside of our conscious awareness and control?
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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Immaculate perception: Jerry Kang at TEDxSanDiego 2013
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HOW DID YOUR PRESENTER DO?
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HOW DID YOUR PRESENTER DO?
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Why does this happen?
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How can implicit bias impact us as we evaluate writing?
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Evidence of Bias in Evaluation: • Law firm partners were asked to evaluate a
research memo containing 22 different errors.
• Half were told that the author was African American and half were told that the author was Caucasian.
• On a five-point scale, reviews for the same
memo averaged a 3.2 for the “African American” author and 4.1 for the “Caucasian” author.
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The comments were also telling: “Caucasian” Thomas Meyer • “generally good writer but needs to work on . . .” • “has potential” • “good analytical skills”
“African American” Thomas Meyer • “needs lots of work” • “can’t believe he went to NYU” • “average at best”
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Cleary Gottlieb Steen & Hamilton LLP • Actively recruited and hired more than thirty African-American
associates from 1989 to 1996, but was unable to retain any of them. • When surveyed about their experiences, the associates mentioned “a
subtle yet pervasive tendency by almost exclusively white partners to favor those who looked like themselves.”
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Objectivity is not the answer. Simply affirming merit-based system isn’t enough.
Biases will be perpetuated unless they’re intentionally interrupted
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Problems can be addressed
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SCIENTIFIC RESEARCH ON DEBIASING IS ONGOING.
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