News and information useful to Cleveland-Marshall College of Law students, faculty and staff.

Archive for February, 2013


Cost-Benefit Analysis of the Infield Fly Rule

Opening Day is right around the corner. Time to examine one of baseball’s trickier and more controversial rules—the infield fly rule—from an economic perspective. This is what Florida International University professor Howard M. Wasserman does in his forthcoming article The Economics of the Infield Fly Rule, which will appear in the Utah Law Review.  Cost-benefit analysis is employed in legal theory to examine everything from torts to healthcare to environmental protection, and it generally takes more than ‘ordinary effort’ to understand the concept.  At least Wasserman’s article applies the theory to a pleasant topic. The author posits that lessons learned from the rules of baseball (and other sports) can be applied to legal procedural rules. You can read an abstract of the article, and download a draft of it from SSRN.

Snowboarders & Skiers Crash to Learn About Restatements

Snowboarders & SkiersIn a recent Ohio Supreme Court case, snowboarders crashing into skiers provided the Court an opportunity to use Restatements of the Law.

The accident occurred at Boston Mills Ski Resort located in Peninsula, Ohio.  The case was Horvath v. Ish, 134 Ohio St. 3d 48, 2012-Ohio-5333 (2012). The only issue before the court was what duty or standard of care is owed by the snowboarder to skier for purposes of determining tort liability.  The Ohio Supreme Court used the Restatements of the Law, Torts to locate case law providing the proper standard of care.

What are Restatements? Restatements aim to distill a concise set of principles or rules from common law. In general, this legal research tool “restates” what the current law; it does not project what law should be. However, on occasion, Restatements may provide recommendations on a rule of law. Restatements are not primary law; rather they are a type of secondary legal resource known as legal commentary and are given special status by courts and law school professors. Due to the prestige of the publisher and the careful drafting process, many courts find Restatements persuasive authority.  Many law professors rely on Restatements as the definitive source of “black letter” law.

Who and How are the Restatements Created?  The Restatements of the Law are published by American Law Institute (ALI), an independent organization founded in 1923.  Members of ALI are elected from the legal community and are prominent American judges, lawyers, and professors.  The drafting process for a particular Restatement title is painstaking and can take 10 to 20 years.  ALI committees examine cases, identify common law trends, and translate their findings into legal principles or restatement rules. The result is a scholarly works that clarifies, modernizes, and otherwise improve the law.

How are Restatements OrganizedRestatements cover broad areas of law, such as Torts or Agency.  Not every legal subject is covered by the Restatements, a complete list of subjects covered is maintained by the publisher, American Law Institute.

Each volume of the Restatements is organized into chapters. Each chapter is then organized into titles. Each title is divided into sections. Each section contains a concisely stated rule of law, often with comments and illustrations. The comments and illustrations are used to clarify the rule, provide explanations of the rule’s purpose, and define major exceptions to the rule. Each Restatement volume has an index. There is also a comprehensive index covering the Restatements of the Laws, First. ALI will also publish a comprehensive index covering the Restatements of the Laws, Second upon its completion.

How are Restatements Used in Legal Practice? Lawyers use Restatements for a variety of purposes. Restatements are used to support a legal argument which is not been addressed by the courts in a particular jurisdiction.  Restatements are used to support a legal argument which has not been addressed by the court in a particular jurisdiction. Restatements are used to identify relevant key cases in a particular jurisdiction. Restatements are used to gain an understanding of the policies which underline the rule of law.  It is important to note that not all Restatements are the same. Some are cited more frequently than others.  Similarly, not all courts treat Restatements the same way. Lawyers are cautioned to understand how the courts in your jurisdiction received and interpret a particular Restatement prior to its use.

The Ohio Supreme Court held that assumption-of-risk principles limit the snowboarder’s liability “unless it can be shown that the other participant’s actions were either reckless or intentional as defined in 2 Restatement of the Law, Second, Torts, Section 500 (1965)  and 1 Restatement of the Law, Second, Torts, Section 8A (1965).” Horvath v. Ish, 134 Ohio St. 3d 48, 2012-Ohio-5333 ¶19 (2012). ALI  notes portions of the Restatement of the Law, Second, Torts are superseded by the Restatement of the Law, Third, Torts.

Tips and Books on Editing for Legal Writing

“So the writer who breeds more words than he needs, is making a chore for the reader who reads.” –Dr. Suess

The author of The Cat in the Hat could teach a lawyer or two about brevity of legal prose. Trimming unwieldy legal writing down to size is part of the editing process. But that’s only the tip of the iceberg. In Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing [Find it], the authors suggest a series of steps to the editing process:

  • Edit for tone and length, with attention to your audience.
  • Edit for clear organization.
  • Edit for coherence of paragraphs, and for transitions within and between them.
  • Edit for sentence clarity.
  • Edit for grammar and punctuation.
  • Proofread.

By approaching editing methodically, you improve the readability of your legal writing. And in case you think good writing is just about style, check out Face It – Bad Legal Writing Wastes Money from Lawyerist.com.

You can find books on legal writing and editing in AO66. Two more to note:

  • Writing Shorter Legal Documents: Strategies for Faster and Better Editing [Find it]
  • The Lawyer’s Editing Manual [Find it]

Understanding the Business of Law: Thinking Like the Client

ThnikingC|M|Law Library encourages you to look at this October 2012 report from ALM Legal Intelligence entitled Thinking Like Your Client: Strategic Planning in Law Firms.

This report is co-sponored by LexisNexis|InterAction & LexisNexis|Redwood Analytics and authored by Cathy Lazere and Jennifer Tonti.  Cathy Lazere, a former editor at the Economist Intelligence Unit, is a freelance writer.  Jennifer Tonti is Senior Research Director at ALM Media.

This report notes that there is a difference between the practice of law and the business of law.  Recent economic conditions have only served to reinforce the  importance of  these differences.  This report highlights that most law firms have a thorough and detailed understanding of the practice part; but lack skills and understanding with the business of law.

The authors state that the legal community is facing big issues … ones that are not easily solved. But the same big issues seem to surface every year, with every survey. In too many ways, the slow pace of change is inhibiting growth and limiting progress.

  • Revenue is the top priority in most strategic plans. Yet, almost half of the respondents are remiss in building, tracking and measuring client loyalty and satisfaction. Are firms overlooking the direct link between revenue and satisfied customers?
  • Profitability is the second strategic plan priority. But, fewer than half are actively focused on a non-billable hour strategy, and more than half can’t yet tell if alternative fee arrangements (AFAs ) are more profitable than hourly rates.  AFAs and various pricing models have been around for a few years; they are not going away. Isn’t it time to honestly reexamine the elements that make your firm profitable?
  • Talent acquisition/retention holds the third top spot for strategic priorities, although laterals dominate the discussions and, apparently, everyone’s plans. How sustainable are growth models tied to an on-going “musical chairs” game of lateral talent shifting from firm to firm? Is anyone focused on a plan for organic growth?

Thanks to bespacific.com for the tip.

Law Library Will Be Closed On Monday

The law library will be closed on Monday February 18th for President’s Day and will re-open on Tuesday the 19th at 8am.  Please try to hold back your tears of sadness and enjoy the day off.