The U.S. Supreme Court, 2015-16 Term

October 4, 2015

First Monday in October is upon us. Tomorrow, the U. S. Supreme Court begins its 2015-16 Term. Here at Mark Rubin Writes we will follow the Court once again, relying heavily on and many other resources.

Adam Liptak’s Supreme Court Prepares to Take on Politically Charged Cases for the New York Times, today, provides an excellent overview of the coming Term. I noted in particular his three paragraphs about partisanship, relying on Neal Devins, a law professor at William & Mary. Here they are:

‘This coming term will again put into focus that the court is divided along partisan lines and that the 2016 presidential elections will be hugely consequential in shaping constitutional and other law for perhaps

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Law Firms: From One to 4200 Attorneys

September 29, 2015

I finished college in December 1977, one semester early. I indulged my love for Chicago by getting a job as a runner for Kirkland & Ellis. The job was … well, outside mostly, from late December until early May. The boots were cold and wet at night and in the morning. That aside, the firm offered up free Danish in the morning, and if things were slow we were sent away for a while, to insure that management did not see a mailroom full of young guys, sitting around. Great job!

From memory, I believe Kirkland had 200 attorneys in the late 1970s, 160 in Chicago and 40 in Richmond, dedicated to representing Westinghouse—the real one, not the

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Retention Elections at the Supreme Court

September 21, 2015

The United States Supreme Court is comprised of nine justices. Presently, their age span is 82 to 55, with four justices—Ginsburg, Scalia, Kennedy, and Breyer—between 77 and 82. On January 20, 2017, those four justices will be 83, 80, 80, and 78, respectively. They will also have been serving for 23, 30, 28, and 22 years, respectively.

My point? The 2016 election may be about only one thing which really matters: the composition of the U.S. Supreme Court.

Many people holler about the Supreme Court. Some people are genuinely concerned about a group of people who come from remarkably similar professional backgrounds. Read Is the Court We Have the Court We Want?, which I wrote in May 2014, for

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The Kim Davis Story: More Thoughts

September 14, 2015

Like a moth which cannot ignore the flame, I’m finding it hard to walk away from the Kim Davis story. She has clearly arrived, as I have linked to her Wikipedia page. Do you have a Wikipedia page?

You know the basics. Kimberly Jean Bailey Davis does not believe in same sex marriage. The law interferes with her beliefs, so she thinks she’s entitled to an accommodation. That position has gotten her a contempt citation and jail, courtesy of U.S. District Judge David Bunning. Now she’s out, back at work, and planning to sue Kentucky Gov. Steve Beshear (D).* (Details are reported by Caitlin MacNeal for TPM, in Kim Davis’ Lawyers to File New Lawsuit against Kentucky Governor.)

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Omission – A Legal Writing Guide

September 12, 2015

I often call myself a “technical writer.” In fact, most everything I do as an attorney involves “it matters” writing. To lay people attorneys are on their feet, back and forth. In almost every instance, however, the battle of wits follows written submissions on the facts and law. Even in trials, where the jury relies on the evidence it sees and hears, writing plays a role in determining what the jury sees and hears.

Omission, written by John McPhee for the September 14 issue of the New Yorker, is an essay about writing, and a most gentle cri de Coeur for less is more. Unintentionally, it’s also a legal writing manual.

Before I get to legal writing I

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United States Supreme Court 2015-16 Preview

September 7, 2015

October 5 is four weeks away. So what? Well, in 2015 October 5 happens to be the First Monday in October, and that means we’ll have a chance to watch the United States Supreme Court in action again. (In fact, although the Court is at recess from July through September, the justices deal with many administrative matters during the recess, and also address some substantive issues, like rejecting County Clerk Kim Davis’ attempt to draw the Court into her petty drama in Kentucky.)

So what can we expect in 2015-16? Plenty, of course. has listed the 30+ cases the Court has already accepted for review. From among them, here are a few which we likely here much about:

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Legal Malpractice

August 31, 2015

Today’s subject is legal malpractice. ‘Tis true; attorneys make mistakes. Really!

Malpractice is a term synonymous with professional negligence. Although one sounds ugly and the other doesn’t, they have the same meaning. And that meaning? Per The Free Dictionary

Malpractice refers to negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet the standard of care … that is recognized by a profession reaches the level of malpractice when a client or patient is damaged because of error.

Some appellate court opinions—and yours truly—nibble at the edges of this definition but, for our purposes, it suffices.

So, if I make a mistake I’ve committed malpractice? No. First, there

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Lay Witnesses and Expert Witnesses

July 27, 2015

Witnesses come in two varieties: Lay witnesses and expert witnesses. Lay witnesses testify only when they have personal knowledge about the matter about which they have been offered as a witness. And, generally, they testify about facts, i.e., what they have seen, heard, or read. Lay witnesses can only offer opinions only when they are “rationally based on their perceptions” or “helpful to clearly understand the witness’s testimony or determine a fact in issue.” Lay witness testimony cannot rely on scientific, technical, or other specialized knowledge.

Expert witnesses, on the other hand, rarely have first-hand knowledge about the facts associated with a case. Instead, they rely on what they are told, and on what they read. They use their

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Same Sex Marriage; The Battle Continues

July 13, 2015

GOP Texas Judge Will Only Marry Same-Sex Couples If They Sign a Form Saying He’d Rather Not is the headline from a short report by Caitlin Cruz for Talking Points Memo. Denton County Judge James DePiazza told a television station

It’s my personal belief that individuals who want to conduct a marriage ceremony understand my convictions. If it was me, I would prefer to have someone who was in agreement with me.

I’m suspect Judge DePiazza’s religious beliefs form the basis for his position. I’ll allow for the possibility that he just wants a defense against someone who runs to his Religious Right in the next election, claiming he’s a bad man for marrying “those people.” One way or another,

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