August 26, 2009 Nº 809 - Vol. 7
"Come to the edge, he said. They said: We are afraid. Come to the edge, he said. They came. He pushed them and they flew".
Guillaume Apollinaire
In today’s Grammatigalhas, some fundamental lawyering skills.
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Prisoner dilemma
A report by the CIA's own inspector general compiled in 2004, which had previously been published only in a heavily redacted form (so much of the text was blanked out that it was rendered incomprehensible), has now been placed in the public domain on the orders of a federal judge. It makes extraordinary reading with its descriptions of how CIA interrogators pressured 9/11 suspects - threatening that their children would be killed, or their mothers sexually assaulted in front of them. What should happen next? Obama does not want to reopen old wounds or inflame anti-American feelings around the world of course, but he does not want to alienate the professionals within America's own intelligence agencies on which his government depends. The problem is that below the cautious pragmatism of the White House rages a partisan political battle over how these issues should be handled. For one thing, America's human-rights lobby wants full disclosure - the impetus for the release of the full text of that CIA report came from legal action taken by the American Civil Liberties Union. But on the left of the Democratic Party there is a real appetite for proceeding with further investigations into these interrogations and for prosecutions. In the eyes of many, this is an opportunity to put the Bush administration itself on trial. For years, Democrats railed impotently against what they regarded as illegal wars, immoral detention and interrogation techniques, and a dark and secretive political atmosphere in which they sense American values were betrayed. They have the upper hand now and they want to take advantage of this. Obama has approved the creation of a team of elite interrogators responsible for questioning top terrorism suspects. The FBI — not the CIA — will take the lead role in interrogations.
Who are your favorite professors?
"A wise teacher makes learning a joy" goes the saying. We all have a favorite teacher. On teacher’s day in October, Migalhas will publish a new edition of Conexão to honor those who fostered new knowledge and changed our lives. So we ask you to send us an article to [email protected], naming your favorite teacher as well as the great lesson you learned. We will publish it in this column and in Conexão. As a side bar, we will also accept nomination from movies characters. Let the good memories roll!
Before you open the door to the boardroom, peek through the keyhole!
Michael Page specializes in the placement of candidates in permanent, contract, temporary and interim positions within client companies around the world. Have a look at the new section of the Migalhas website and discover the professional development opportunities with large corporations, in legal and business fields, presented by Michael Page International. Click here to peep through the hole!
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China lawmakers weigh draft law giving police more clout to control riots
China's National People's Congress (NPC) on Monday considered a draft bill that would allow the People's Armed Police Force (PAPF) to respond to riots. The proposed legislation would also allow the PAPF to respond to terrorist attacks and other social emergencies. A detailed protocol for deploying the PAPF would be determined later by the State Council and the Central Military Commission. The draft bill also includes provisions to prevent the PAPF from illegally detaining or searching people, in response to lawmakers' objections after the bill's first reading. Monday's session was the bill's second reading, and it could be voted on as early as Tuesday. This would be the country's first law on armed police.
Legal Meaning Is Not Everyday Meaning
Oral / verbal
Traditionally, oral means spoken (an oral examination) and verbal means related to words (verbal reasoning). But ‘verbal agreement’ is the idiomatic term for one that is spoken, not written. There is no ambiguity here since an agreement necessarily involves words. Another idiom is ‘non-verbal communication’, the use of gesture and body language instead of words; effectively this means unspoken since it is only used of people in face to face contact, who can observe one another’s physical behavior.
Public domain
In general English: Accessible to the public; land owned directly by the government or local authorities.
In legal English: legal availability for public use, free of charge, of materials, processes, devices, skills, and plans that are not protected by copyright or patent, including those on which copyright or patent has lapsed; subject to appropriation by anyone.
Everyday "Legal" Jargon
Fundamental Lawyering Skills
Skill § 1: In order to develop and evaluate strategies for solving a problem or accomplishing an objective, a lawyer should be familiar with the skills and concepts involved in:
1 identifying and diagnosing the problem;
2 generating alternative solutions and strategies;
3 developing a plan of action;
4 implementing the plan;
5 keeping the planning process open to new information and new ideas.
Skill § 2: In order to analyze and apply legal rules and principles, a lawyer should be familiar with the skills and concepts involved in:
1 identifying and formulating legal issues;
2 formulating relevant legal theories;
3 elaborating legal theory;
4 evaluating legal theory;
5 criticizing and synthesizing legal argumentation.
Skill § 3: In order to identify legal issues and to research them thoroughly and efficiently, a lawyer should have:
1 knowledge of the nature of legal rules and institutions;
2 knowledge of and ability to use the most fundamental tools of legal research;
3 understanding of the process of devising and implementing a coherent and effective research design.
Skill § 4: In order to plan, direct, and (where applicable) participate in factual investigation, a lawyer should be familiar with the skills and concepts involved in:
1 determining the need for factual investigation;
2 planning a factual investigation;
3 implementing the investigative strategy;
4 memorializing and organizing information in an accessible form;
5 deciding whether to conclude the process of fact-gathering;
6 evaluating the information that has been gathered.
Skill § 5: In order to communicate effectively, whether orally or in writing, a lawyer should be familiar with the skills and concepts involved in:
1 assessing the perspective of the recipient of the communication;
2 using effective methods of communication.
Skill § 6: In order to counsel clients about decisions or courses of action, a lawyer should be familiar with the skills and concepts involved in:
1 establishing a counseling relationship that respects the nature and bounds of a lawyer's role;
2 gathering information relevant to the decision to be made;
3 analyzing the decision to be made;
4 counseling the client about the decision to be made;
5 ascertaining and implementing the client's decision.
Skill § 7: In order to negotiate in either a dispute-resolution or transactional context, a lawyer should be familiar with the skills and concepts involved in:
1 preparing for negotiation;
2 conducting a negotiation session;
3 counseling the client about the terms obtained from the other side in the negotiation and implementing the client's decision.
Skill § 8: In order to employ-or to advise a client about-the options of litigation and alternative dispute resolution, a lawyer should understand the potential functions and consequences of these processes and should have a working knowledge of the fundamentals of:
1 litigation at the trial-court level;
2 litigation at the appellate level;
3 advocacy in administrative and executive forums;
4 proceedings in other dispute-resolution forums.
Skill § 9: In order to practice effectively, a lawyer should be familiar with the skills and concepts required for efficient management, including:
1 formulating goals and principles for effective practice management;
2 developing systems and procedures to ensure that time, effort, and resources are allocated efficiently;
3 developing systems and procedures to ensure that work is performed and completed at the appropriate time;
4 developing systems and procedures for effectively working with other people;
5 developing systems and procedures for efficiently administering a law office.
Skill § 10: In order to represent a client consistently with applicable ethical standards, a lawyer should be familiar with:
1 the nature and sources of ethical standards;
2 the means by which ethical standards are enforced;
3 the processes for recognizing and resolving ethical dilemmas.
Selected excerpt from the MacCrate Report, reprinted from the American Bar Association's website.
As If Your Life Depended On It… or How to get to Carnegie Hall? - Practice, practice
Famous trials in the world:
Trial of Socrates (399 B.C.)
Trial of Jesus (30 A. D.)
Trial of Joan of Arc (1431)
Trial of Martin Luther (1521)
Trial of Sir Thomas More (1535)
Trial of Galileo (1633)
Trial of Charles I (1649)
The Trials Louis XVI and Marie Antoinette (1792-93)
The Trials of Alfred Dreyfus (1894 and 1899)
Trial of Gandhi (1922)
The ("Beer Hall Putsch") Trial of Adolf Hitler (1924)
Trial of Adolf Eichmann (1961)
Trial of Nelson Mandela (1963-64)
The "politically correct" grammarian
Infamous / Notorious
"Infamous” means famous in a bad way. It is related to the word "infamy." Humorists have for a couple of centuries jokingly used the word in a positive sense, but the effectiveness of the joke depends on the listener knowing that this is a misuse of the term. Because this is a very old joke indeed you should stick to using "infamous" only of people like Hitler and Billy the Kid.
"Notorious" means the same thing as "infamous" and should also only be used in a negative sense.
Repetition
English is full of repetitive phrases like pump and ceremony, neat and tidy, whys and wherefores. The law, aiming to be comprehensive, provides example like aid and abet, by let and hindrance, the rest, residue and remainder. These phrases trip off the tongue, but you should avoid them in ordinary writing.
Mute Point / Moot Point
"Moot" is a very old word related to "meeting," specifically a meeting where serious matters are discussed. Oddly enough, a moot point can be a point worth discussing at a meeting (or in court)—an unresolved question—or it can be the opposite: a point already settled and not worth discussing further. At any rate, "mute point" is simply wrong, as is the less common “mood point."
A ‘moot case’ is a case seeking to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in an alleged controversy when in reality there is none.
A ‘moot court’ is a fictitious court set up to argue a moot case; usually found in law schools as an instrument of learning oral advocacy skills.
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Downturn dims prospects even at top law schools
This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years. For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say. The frenzy has even pushed the nation's top firms, a tradition-bound coterie, into discussing how to reform the recruitment process with an earnestness that would have been unthinkable just years ago. Even if the economy is beginning to pick up, the legal profession has been pummeled over the last year, with some firms closing and survivors often asking associates to take leaves of absence.
Honduras defiant over elections
The Honduran interim government says it will go ahead with presidential elections in November, even if results are not recognized by other countries. It also told a visiting group of regional foreign ministers it was not concerned at international sanctions following the ousting of the president. The visiting ministers failed to persuade the government to accept a mediated plan to return him to power.
Nigeria to act against debtors
Nigeria's special fraud police say they are preparing to act against business tycoons who have failed to pay back billions owed to banks. The move comes with the expiry of a deadline for those owing money to return it to the troubled banks. The government was forced to rescue five banks and sack their entire leadership teams last week to save the banks from collapse. Some senior bankers are in custody but two chief executives are on the run.
Argentina rules on marijuana use
The supreme court in Argentina has ruled that it is unconstitutional to punish people for using marijuana for personal consumption. The court said adults were free to make lifestyle decisions. But the court said use must not harm others and made it clear it did not advocate a complete decriminalization.
US deficit to soar towards $1.6tn
The US budget deficit will soar to almost $1.6 trillion this year, the highest on record. Fuelled by Obama's $787bn stimulus package and reduced tax revenues due to the recession, it compares with a $455bn deficit in 2008. The White House says the deficit will grow further, predicting it will hit a cumulative $9tn from 2010-2019 and expects US unemployment to pass 10% this year, before slowly declining in 2010.
Wikipedia to launch page controls
The online encyclopedia Wikipedia is on the cusp of launching a major revamp to how people contribute to some pages. The site will require that revisions to pages about living people and some organizations be approved by an editor. If a page has a number of controversial edits or is repeatedly vandalized, editors can lock a page, so that it cannot be edited by everyone.
French bankers accept restrictions on bonuses
French banks have agreed to bring in a new system of performance-related pay, following controversy over the high levels of bonuses paid to traders. France's banking federation said there would be penalties for those who lost money as well as rewards for success.
Brazil eyes new tax to offset falling revenue
Brazil's governing coalition in Congress will push to approve a new financial transaction tax to help offset falling revenue but is likely to face wide-spread opposition. The government wants to revive a bill stalled in Congress since last year that would impose a 0.1 percent tax on financial transactions, raising 12 billion reais ($6.59 billion) a year for health spending. The bill was abandoned last year after delay tactics by the opposition.
Brazil Congress considers shortening work week to generate jobs
Brazil's Congress is considering a constitutional amendment to reduce the working week by four hours in a bid to generate more jobs. Lawmakers in the lower house began debate on a measure that would cut the regular work week to 40 hours from 44 hours.
Dealers Tear Up $16 Billion Thomson Credit-Default Swaps
Credit-default swaps traders cut the volume of outstanding trades linked to Thomson SA by ripping up $16 billion of offsetting contracts.
Britain considers steps to halt online piracy
The British government said on Tuesday that it might require Internet service providers to fight illegal copying of music and movies by suspending the accounts of online pirates. The new approach, similar to proposals in France, follows complaints from the music and movie industries that the British authorities are not doing enough to curb illegal file-sharing. In June, the government proposed softer antipiracy measures, including slowing down broadband service of consumers found to be pirating material, but stopped short of calls to block access. "Some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behavior," the revised proposal says.
ICC prosecutor argues against release of Congo rebel leader Bemba
Chief prosecutor at the International Criminal Court (ICC) Luis Moreno-Ocampo on Monday filed arguments against releasing former Democratic Republic of Congo (DCR) rebel leader Jean Pierre Bemba. The ICC ordered Bemba's conditional release earlier this month, a decision, which Moreno-Ocampo immediately appealed.
Frenchman 'flees Somali captors'
BBC News, Centrist newscaster, London, England
ICC Prosecutor appeals decision to release Jean-Pierre Bemba
CongoPlanet.com, Independent online news aggregator
Minister outlines government payments
GhanaWeb, Online news portal, Amsterdam, Netherlands
How safe do you feel at malls?
Independent Online, News portal, Cape Town, South Africa
Imperial full-year profit up
Mail & Guardian Online, Liberal, Johannesburg, South Africa
Mugabe health report 'rubbish'
News24.com, Online news portal, Cape Town, South Africa
Brazilian priest caught trying to molest boy has AIDS
Brazil Sun, Independent online news aggregator
Death puts family dynasty in doubt
The Globe and Mail, Centrist daily, Toronto, Canada
Sen. Edward M. Kennedy dies
Toronto Star, Liberal daily, Toronto, Canada
RI mily officer to assume Unifil directorship
Antara News, News agency, Jakarta, Indonesia
10th Seoul International Financial Forum Kicks Off
Chosun Ilbo, Conservative daily, Seoul, South Korea
Pervasive corruption tarnishing India's image, says PM
India Express, News portal, Mumbai, India
Swine flu claims 25th victim in Pune
India Times, Conservative daily, New Delhi, India
How bureaucrats spell logic in Romanized Japanese
Japan Times, Independent centrist, Tokyo, Japan
Penang cancels National Day parade to curb A (H1N1) flu spread
Malaysian Star, Online news portal, Selangor Darul Ehsan, Malaysia
Ted Kennedy: Heir to a legacy
New Zealand Herald, Conservative daily, Auckland, New Zealand
Women with more male hormone 'more willing to take risks'
People's Daily Online, English-language, Beijing, China
Day I met the cold force behind Anna Wintour
Sydney Morning Herald, Centrist daily, Sydney, Australia
BJP asks Shourie to clarify remarks
The Hindu, Left-leaning daily, Chennai, India
New high-speed rail link proposed
BBC News, Centrist newscaster, London, England
Dacha Magazine Sales Soar In Crisis
The Moscow Times, Independent daily, Moscow, Russia
Ted Kennedy: reaction
The Telegraph, Conservative daily, London, England
Air India workers on hunger strike over pay cuts
Times Online, Conservative daily, London, England
Sadrists Promised Major Positions in New Gov't
Asharq Al-Awsat, Pan-Arab daily, London, England
Afghanistan election too close to call
Gulf News, Independent daily, Dubai, United Arab Emirates
MIDEAST: Non-Story Sets Off Ripples of Trouble
IPS Middle East, International cooperative of journalists, Rome, Italy
Sixth MidEast HR Summit to tackle top HR concerns of current times
Middle East North African Network, Online financial portal, Amman, Jordan
Sen. Edward Kennedy Dies of Brain Cancer at 77
Nahamet, Online news portal, Beirut, Lebanon
Senior reformist confesses in Iran's political trial
The Daily Star, Independent daily, Beirut, Lebanon
Yemen: Fear of failure
Yemen Times, Independent weekly, Sana'a, Yemen
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