Do the interests of academic lawyers and practising lawyers ever overlap?

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. The book-reading habits of practising lawyers can be very differentto those of academic lawyers. A well-known publisher of lawbooks for academics and practitioners provides its authors witha style guide, which includes the following, helpful advicefor writing     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

“律师文化”辨

目前,实务界和学术界对于“律师文化”概念的使用缺乏基本共识,甚至十分混乱,严重影响关于律师文化的学术交流、学术发展以及律师文化建设的实践效果。因此,加强相关学术交流,明晰学术概念,积累学术共识迫在眉睫。律师文化研究不宜仅从主观需要出发,而应从历史与传统的角度出发,把握文化的传承特点,着力于精神内涵的挖掘,着重于律师行业或职业的精神特徵研究。律师文化的建设与发展取决于学术界的努力,更取决于实务界的思考与实践。     

When lawyers question children

This study assessed the impact of some complex question forms frequently used by attorneys who examine and cross-examine witnesses in the courtroom. Fifteen males and 15 females from each of four student populations (kindergarten, fourth grade, ninth grade, and college) viewed a videotaped incident and then responded to questions about the incident. Half the questions were asked in “law-yerese” (i.e., using complex question forms); the remaining half asked for the same information using simply phrased question forms of the same length. Lawyerese confused children, adolescents, and young adults alike. Questions that included multiple parts with mutually exclusive responses were the most difficult to answer; those that included negatives, double negatives or difficult vocabulary also posed significant problems. Results suggest that complex question forms impede truth-seeking and should be prohibited in court.     

背后的“手”拆迁律师被打调查

1 张心升:“3·28”殴打律师事件历险记 事发前被“贴身跟踪” 2016年3月28日上午9点,我代理的何良宝、常义兵、张远超、曹运斌等20人不服襄阳市樊城区政府作出《襄阳市樊城洪家沟片区城中村及棚户区综合改造项目集体土地上房屋征收公告》(简称《洪家沟房屋征收公告》)的具体行政行为一案,在湖北省襄阳市中级人民法院第11法庭开庭审理.     

The professional responsibility of lawyers: emotional competence, multiculturalism and ethics

Traditional legal education and the Socratic method it utilises are by and large successful at training lawyers to think, reason and analyse. The cultivation of lawyers' intrapersonal and interpersonal skills, however, has been, at best, neglected by the profession. All lawyers, like all human beings, are emotional. Emotions affect who they are and how they practise law, whether or not they are conscious of them. As emotions cannot be removed from the practice of law, it is essential that lawyers learn to understand and manage their emotions, as well as learn to be attuned to their clients' emotional lives. Ignorance of concepts such as countertransference, denial and unconscious bias adversely impact the lawyer-client relationship. Lawyers who understand basic psychological principles and behaviours, who are aware of their own psychological makeup, understand their cultural perspective and recognise and credit their clients' differences, will enhance their effectiveness as counsellors. The client whose lawyer has these competencies will enjoy a therapeutically superior counselling or representational experience. The neglect of either the lawyer's or the client's emotional life threatens to sabotage the lawyer's ability, and thus professional responsibility, to render competent and impartial legal advice. Through drawing parallels to the training and practice in other counselling disciplines and relationships, this article argues that psychological-mindedness and multicultural competence are essential elements of ethically responsible legal representation.     

关于优化律师执业环境的思考

自1979年恢复律师制度以来,我国律师业得到迅猛发展。律师在建设中国特色社会主义事业中的作用得到充分展现,为推动我国社会主义民主法制的进程更是功不可没。当前,优化律师执业环境,是律师业健康、持续、快速发展迫切需要解决的一个理论和实践问题。本文就此作一探讨,以求大家指正。 一、优化律师执业环境的价值探讨 优化律师执业环境是一个复杂的系统工程,除了优化律师业内环境,重点还要优化律师执业的外环境,主要有法制环境、政策环境、政务环境、司法环境、市场环境和舆论环境。优化律师执业环境是律师业良性发展的前提和基础,而律师业良性发展又可以反过来影响和优化律师执业环境,     

Client privilege,compliance and the rule of law: Swedish lawyers and money laundering prevention

Can, and will, lawyers police their clients? This article aims to shed light on the private front-line workers of the Financial Action Task Force on money laundering (FATF). The analysis is based on a study of how Swedish lawyers perceive and handle obligations to police clients within FATF style risk-based anti-money laundering/counter terrorism (AML/CTF) regulation. We find that the lawyers were reluctant to taking on the responsibility for AML/CTF, and that their front-line work was directed towards being compliant enough. Relatedly, we identify several practices of separation that serve to mediate between the conflicting aims and interests in the everyday of this form of private policing. Another finding is that the lawyers by and large position themselves as knowledgeable actors, and view risks of AML/CTF as knowable. Nevertheless, lawyers experienced a principle clash between being ‘not banks’, and being front-line workers for FATF. In particular, the lawyers perceived their role as front-line workers to be more complex due to their professional norms and ethics on client privilege, and what they saw as the proper role of lawyers, being in conflict with the obligation to report clients and their transactions. In concluding, we suggest that paying more attention to the everyday experience of front-line workers when devising regulatory tools may be a way to promote engagement in ‘true’ crime prevention on their part.     

Advocates,experts, and suspects: three images of lawyers in Chinese media reports

Research on the public image of lawyers often focuses on lawyers’ role as advocates and neglects other representations. Based on the content analysis of 669 media reports of Chinese criminal cases between 1979 and 2009, this article provides a typology of lawyers’ media images: as advocates, as experts and as suspects. Even when lawyers are characterized as defenders of suspects, media depictions of their roles are vacuous and lawyers may be considered unnecessary and dispensable. Furthermore, the characterization of lawyers in the case stories has a binary quality that is contingent upon the media's substantive judgment of case outcomes. With findings from the Chinese case, the article calls for more attention to lawyers’ images in the media, both in China and in comparative research on the legal profession.     

中国律师惩戒制度之构想

综观世界各国律师惩戒制度,可以得出一个基本印象:律师这一职业不论是在何种社会制度或经济发展状态,都是一个高度自律的行业,执业资格获得、执业行为、纪律惩戒都严格按照国家法律、行业法规、职业纪律进行.高度自律不仅仅是指律师具有高度的职业道德觉悟和行为规范约束,更重要的是律师行业存在一个严明的惩戒制度.通过对各国律师惩戒制度的考察,可以发现一个共性的惩戒指向.     

Battered wives,lawyers, and district attorneys: An examination of law in action

The legal services received by 146 Milwaukee women who had been beaten by their husbands, but had been free of the violence for at least a year, are described and evaluated. Of these women 106 recieved legal help in connection with at least one battering incident. Some women saw more than one member of the legal profession, so the total number of legal contacts among the 106 women was 255. There is evidence that lawyers and district attorneys were most likely to be used by those battered women for whom the use of personal strategies and informal help sources (such as family and friends) were ineffective in combatting the violence. Contrary to the negative image of lawyers and district attorneys found in the literature on wife beating, most legal service contracts were rated as very or fairly successful by the battered women. The more difficult and severe the situation, the higher the success ratings given to lawyers and district attorneys by their clients. Despite the generally positive reactions that most beaten women had to lawyers and district attorneys, there were many negative incidents reported, including district attorneys who refused service or discouraged battered women from filing charges, and lawyers who sided with the aggressors or attempted to meet their personal and professional needs at the expense of their clients. These incidents remind us that it would be useful to educate legal professionals about the nature of family violence, the situation and needs of battered women, and the legal and ethical responsibilities that lawyers and district attorneys have when they are contacted by battered women.     

Understanding of forensic expert reports by judges,defense lawyers and forensic professionals

Forensic scientists strongly advocate the use of likelihood ratios for expressing the diagnostic value of evidence in technical forensic reports. They call this the logically correct approach. The correct comprehension of such likelihood ratios by jurists, however, appears to be particularly problematic. The present research has empirically investigated this issue for defense lawyers and criminal judges. For comparative purposes forensic professionals, many of whom use the logically correct approach, were included in the study as well.

Using fictitious forensic reports, it was shown that proper understanding of likelihood ratios by jurists is quite poor, due mainly, but not exclusively, to the prosecutor's fallacy. Forensic professionals outperformed jurists to a large extent but made many mistakes themselves. It is further shown that participants’ self-expressed supposed level of understanding of logically correct conclusions is quite high and thus not justified by their levels of proper understanding. Suggestions for how to improve the situation are presented.