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Abstract:
Lawyers can learn a lot from the theory of improvisational comedy, and it isn't just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually "see" the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they "see" what happened, even though they were not present to witness the original actions. Improvisation theorists and teachers have developed principles that guide performers in creating and maintaining a constructed reality in which the audience participates. And these principles of improv - especially the version known as "long form" - can be of great use to lawyers.

Abstract:
This short essay discusses the problem of cognition errors in law practice. There are substantial literatures is some professions - medicine, clinical psychology, and social work, for example - addressing the need to recognize and correct for cognition errors. Interestingly, very little has been written on the subject for lawyers, and even less for judges.

It is deeply regrettable that judges are not more attuned to potential cognition errors, although it is understandable given that they are subject to extreme confirmation bias. A judge's resolution of disputed facts is self-confirming, seldom disturbed even on appeal, thus providing little occasion for reexamination. Taking cognition bias to the extreme, Justice Antonin Scalia once remarked about death penalty appeals that, "I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence." Statistically, that would seem to be nearly impossible; but heuristically, it makes perfect sense.

Practicing lawyers face a different challenge. They need to be aware of their own possible cognition errors, which can cause problems interviewing clients, negotiating with other counsel, assessing witnesses, or evaluating evidence. Uniquely among professionals, however, trial lawyers must also consider the potential cognition errors of judges and jurors, in order to counteract the most likely mistakes or, to put it politely, to accommodate them.

Abstract:
In literary terms, a trial lawyer has to decide how to introduce the inciting incident, the central moment of change or conflict around which the entire story revolves. More precisely, the question is whether to begin - the opening statement or final argument - with the inciting incident, or to precede it with some amount of exposition. That decision, in turn, depends on the nature of the story itself. Is the central conflict self-explanatory, requiring little or no contest? Or does the story require nuance and background in order to be understandable? This essay uses examples from film and literature - from Kafka's Metamorphosis to Mark Twain's Huckleberry Finn, and from Casablanca to Saving Private Ryan - to explore the different approaches to this problem.

Abstract:
Long before Bill Clinton ever lied about sex, another out-sized personality made the same mistake on the witness stand, attempting to fool the court, the public, and his own attorney about his illicit liaisons. In 1895, Oscar Wilde was perhaps the most celebrated literary figure in England. A famed poet, playwright, novelist, and belle lettrist, he led an aesthetic revolution against the stifling proprieties of the Victorian era, championing a new freedom in artistic expression.

Abstract:
Both lawyers and poker players must be wary of overplaying their hands. Too much aggression can lead to ruin and, ironically, it can be worst when facing a naive or inexperienced adversary.

Abstract:
If you were to ask a random sample of your friends and neighbors, chances are good that virtually all of them would tell you that medical ethics are superior to legal ethics. But at least in a few important regards, they would be seriously wrong

Health care has become a huge industry. Yet medical ethics do not seem to have kept pace with the changing environment, no doubt because they were developed to deal with medical issues and have not traditionally been concerned with more worldly matters, such as profit margins and potential conflicts of interest. Thus, doctors (and hospitals) are able to indulge the useful fiction of the selfless healer, devoted exclusively to each patient's well-being and therefore completely unaffected by monetary concerns. In that noble paradigm, increasingly inaccurate as it may be, there is little risk of conflicted interests, and consequently little need to adopt ethics rules that will prevent them.

For all their many faults, lawyers have always been frank about their place in the world. Law practice is a business. Legal ethics, therefore, were developed largely to facilitate the commercial relationship between attorney and client. And because business requires autonomy, it turns out that clients may have substantially more rights than do patients, especially when it comes to setting the terms of the relationship itself.

This essay is adapted from my forthcoming book, The Importance of Being Honest (NYU Press 2008).

Abstract:
This short essay revisits Justice Antonin Scalia's nonrecusal opinion in the famous Duck Hunt case, Cheney v. District Court.

It is customary for Supreme Court justices to make recusal, or nonrecusal, decisions without comment. To his credit, Scalia departed from that practice, denying the Sierra Club's disqualification motion in a lengthy opinion. In his characteristically mordant style, Scalia skewered the request as ill-founded, unsupported, and totally without merit. If your only information about the issue came from Scalia's opinion, you might well wonder why he spent so much effort refuting such glaringly baseless arguments. But of course, that is the trouble. Scalia's tour de force (as some of called it) displays not a moment's recognition that he was judging himself, much less that he might not be the most objective judge of his own impartiality, and least of all that his unconcealed umbrage actually makes him appear more partisan rather than less.

Despite its forceful certainty, Scalia's opinion is deficient in almost every conceivable way. It is wrong on the facts, wrong on the law, and wrong on procedure.

Abstract:
There is an old and deep symmetry between litigation and poker, which will be recognizable to any lawyer who ever anted up, sweetened the pot, kept his cards close to the vest, or played her ace in the hole. Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

Lawyers' Poker explores the interface between poker strategy and law practice, showing how poker tactics can be applied to comparable situations in litigation.

In law practice, many dependent variables defy isolation, making it difficult to validate even the most well-recognized truisms. Poker, however, is a game of repetition, meaning that the maxims are constantly being tested and refined. In other words, poker wisdom represents real knowledge (remember, every mistake costs money), which makes it a great strategic guide for litigators.

Abstract:
'Reconstructing Atticus Finch' is a reexamination of Harper Lee's To Kill a Mockingbird. The essay takes another look at Atticus's tactics in the defense of Tom Robinson, particularly from the perspective of the alleged victim, Mayella Ewell. The essay considers a previously unasked question: What if Mayella was telling the truth?

Texts, especially literary texts, are always subject to reinterpretation. Notwithstanding the reaction of generations of readers, it turns out that To Kill a Mockingbird contains a submerged narrative in which Mayella's story of rape becomes credible.

Once we contemplate the possibility that Mayella might have been raped, we can no longer unquestioningly accept Atticus Finch as a paragon of lawyerly virtue. It may be that he was simply another working lawyer, using the tools at hand in his best effort to exonerate a client. And since the crime was rape, Atticus used the time-worn strategy of attacking the victim's character. That tactic has been roundly condemned in other contexts; on the other hand, it may be the only available defense in a prosecution corrupted by racism.

Viewing Mayella as a possible crime victim rather than as a conniving liar requires us to ask a series of uncomfortable questions. Do ethics depend on the guilt or innocence of one's client? Are some tactics simply impermissible? May stereotypes ever be exploited by trial counsel, even in defense of the innocent?