turkey leftovers
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If your Thanksgiving was as tastey and relaxing as mine, you’ll understand why I never quite got around to posting here yesterday. If I had, I surely would have joined in the annual obsession with things turkey. Here, a day late, is a little gravy for your leftovers:
1) Turkeys Teaching Law: Does your self-help legal issue involve the Law of Contracts? Professor Meredith R. Miller of ContractsProfBlog has opined once again this year that “nearly all contract law concepts can be learned with turkey cases (and one chicken case … and maybe one cow case).” Prof. Miller stuck her neck out last year, and described two leading turkey cases: in “Turkeys, Oral Contracts and Mr. Gouge (Nov. 18, 2005), she serves up the decision in H&H Poultry Co. v. Whaley, 408 A.2d 289 (Del. 1979); and in “Turkeys, Damages and Alternative Obligations” (Nov. 17, 2005), she thoroughly digests Jacobsen-Reimers Co. v. Tozai Co., 42 Cal. App. 178 (Cal. App. 3d Dist. 1919).” (via Robert Ambrogi at Legal Blog Watch, in “Turkeys Teaching Law,” Nov. 22, 2006)
2) Talking Turkey: A quotation from the trial court judge in Prof. Miller’s posting on the H&H Poultry Case, is a good reminder that the judge’s role quite often is to get “a feeling for a close case, where I believe people may sincerely feel they are telling the story as it is.” From my personal experience watching judges, lawyers, litigants and witnesses (and dealing with adolescents at home and in my office), I firmly believe that the most believable evidence (and pleading) consists in “talking turkey” — speaking plainly and to the point. The pro se party should not, in my opinion, attempt to emulate lawyers who seem to be hiding the ball with arcane jargon, weasel words, rhetorical flourishes, or other verbal dodges meant to obscure the weaknesses in his or her client’s case and to distort the opponent’s arguments and evidence. Speak plainly and honestly to the judge, if you want to increase your credibility.
3) Gobbledygook v. Critical Thinking: Let’s be frank: While gathered around their holiday tables yesterdary, many Americans engaged in and/or were subjected to all sorts of specious, misleading or otherwise faulty arguments and opinion, masquerading as truth or wisdom (or even God’s Will). You will, of course, also encounter such gobbledygook (those poor maligned male turkeys!) in the realm of legal advocacy. A few days ago, I discovered A Practical Guide to Critical Thinking, by Gregg R. Haskins (Aug. 2006) This 18-pp. pdf. file “presents a concise introduction to critical thinking. It is intended as a handy tool to help anyone evaluate or develop sound reasoning and arguments.” Here’s Haskins’ definition of Critial Thinking:
A process by which we use our knowledge and intelligence to effectively arrive at the most reasonable and justifiable positions on issues, and which endeavors to identify and overcome the numerous hindrances to rational thinking.“
To help the reader become a critical thinker, Haskins explains a five-step process, offers an Argument Checklist for evaluating arguments, and presents four Hindrance Charts, which describe the Hindrances to critical thinking due to Human Limitations, The Use of Language, Faulty Logic or Perception, and Psychological or Sociological Pitfalls. Within each category of Hindrance, Haskins defines numerous varieties, gives examples, and suggests critical thinking tips. Haskins not only treats well-known ploys such as Ad Hominem Attacks, Slippery Slopes, and Red Herrings, but he also gives names and examples for many more stumbling clocks to taking “reasonable and justifiable” positions and recognizing arguments that fail to achieve those goals. In his acknowledgement, Haskins credits two books, both by skepdic.com‘s Robert Todd Carroll, PhD, The Skeptic’s Dictionary (2003) and Becoming a Critical Thinker — A Guide for the New Millennium (2000).
4) Thankful for: There are lots of important things that we should all be thankful about in our lives. On a more modest scale, two articles that appeared online this week brought small bits of good news that could make pro se litigants grateful: a) In his law.com column for Nov. 27, 2006, Howard Bashman explains the effects of two new Federal Rules of Appellate Practice that will go into effect on Dec. 1, 2006. One of them is of special interest to pro se litigants: The change to FRAP 25(a)(2)(D), a rule that addresses electronic filing on appeal. Bashman explains a new mandatory hardship exception to any electronic filing requirements:
The amendment authorizes federal appellate courts to require that pleadings, briefs, and other papers be filed electronically, but the amendment also states that “[a] local rule may require filing by electronic means only if reasonable exceptions are allowed.” This so-called “hardship exception” is undefined, allowing the federal appellate courts that will require electronic filing on appeal to experiment with different formulations. The most obvious form of a hardship exception will apply to pro se litigants who do not have access to the technology necessary to prepare and file documents in electronic form.
[For help appearing pro se in an appellate court, see our prior post]
b) The hordes of pro se litigants who appear in the Justice Courts of the State of New York, got good news this week. Surely spurred on by the New York Times three-part series in September, describing the oft-malfunctioning system of small town and village courts (see our prior post), the NYS Chief Judge, Judith S. Kaye, announced a set of reforms that include “plans to increase training for the justices, to improve their supervision and to better monitor whether they are protecting basic legal principles like the constitutional right to a lawyer” and the requirement “for the first time to keep a word-for-word record of their proceedings, like other courts in the state.” (New York Times, “Justice Courts for Small New York Towns to be Overhauled,” Nov. 22, 2006) Other major issues were not addressed in the proposals, because they would need legislative changes and face considerable political opposition from local politicians. “Donna Lieberman, the executive director of the New York Civil Liberties Union, said that while the reforms suggested by Judge Kaye were welcome, ‘these are Band-Aids on a system that needs serious systemic reform’.”
