WMU-Cooley faculty, staff and students didn’t need much persuasion to convince them to celebrate Halloween this year! After all, Halloween isn’t just for kids. It’s for law professors and students too!In the Tampa Bay Mock Trial Board and Moot Court Board annual Spooktacular, the mock attorney dashed the defendant’s (far left) hopes, exclaiming,”We can see right through that ‘I’m an invisible ghost’ defense!”
Monthly Archives: October 2015
Halloween isn’t just for kids. It’s for law professors and students too!
Don’t Fall Through The Ice
Years ago for Christmas, I got a pair of ice skates. There was a park, with a pond used as a public ice rink, about five miles from our house. I asked for permission to take my new skates to go to that park. My mom admonished me not to go down to the St. Mary’s river and try to skate on it. She knew it meandered and passed right by that pond. In fact, it fed into it. She knew my propensity to spend time along the shores of that river and, even though it had been bitterly cold, she warned that the ice could not be trusted.
Of course, I knew better. I called my friend, Mike, and we met under the bridge near my house ON THE RIVER. Under the bridge, the snow had been scoured clear. We jumped up and down near shore and did not hear any fracturing. We looked through the ice and it was deep and clear. We could see that mom was dead wrong; that ice was safe!
So, we walked on the ice toward the park. Our confidence grew and we moved progressively toward the center of the river. We continued down the river and enjoyed the view toward the shoreline and eventually came abeam a General Electric Factory on the north shore of the river. As we approached it, we suddenly heard the ice crack! And crack again, and again, until I fell through the ice into the current and cold water below. I threw my skates toward the south shore and spread my arms out stopping my downward progress so that my head and shoulders remained above the ice.
Mike went to the south shore and stayed atop the ice. He immediately pulled a branch from the shoreline and laid flat as he approached me. I continued to break weaker ice until the ice would support me. I grabbed the branch that Mike held in my direction. Eventually, I was able to climb back onto the surface and move to the south shore.
The reason the ice failed was that there was an outlet pipe coming out of the factory and discharging water that was warmer than the existing river current. We figured that out too late! But, also, there was an employee who was standing outside a door facing the river watching as events unfolded. My greatest fear was not going under the ice and meeting my maker – rather, it was the thought that my mom might find out that I was on that river when she told me not to do so! I had visions of the police appearing with a rescue squad and alerting my mom – oh, the thought of being scolded by my mom was too much to bear.
It was about 10 degrees that morning. Mike and I made a very quick exit from the purview of that employee and ran down the shore towards my home. We came up beside the Brooklyn Bridge in Fort Wayne where there happened to be a laundromat. It was at that point we came up with the brilliant idea of putting money in a dryer that was vented directly to a parking lot on the other side of the wall. I took off as many clothes as I could and put them in the dryer. Then, I proceeded to the parking lot and sat on a guard rail beneath the dryer vent to allow it to warm me and dry the clothes which I continued to wear.
After some time, my clothes were dry, and so was I. Mike and I then proceeded OVER LAND to Sweeney Park where we skated till late that evening. My mom was never the wiser.
Many years later, not long before my mother passed away, I had a pang of conscience and decided to confess to the error of my ways. From her reaction and scolding, you would have thought that I had died. Never, I repeat, never tell your moms about your misdeeds – EVER!!!!!
Many students look for a Mike to rescue them as they start a practice. They have a “study buddy” in law school who they worked with to develop outlines and discuss cases. They tell me that they want to be partners as they start their firm. The truth is that you are better served by sharing office space and expenses and wait to see if you are compatible in terms of work ethics, money management and practice principles. Law practice divorces can be very messy.
When you are drafting materials for a hearing late Friday afternoon as your partner has left to join a foursome at the golf course, you may have second thoughts about your decision to partner. And, what is lost if you join together after a year of practice? You still have each other to support one another and act as sounding boards for your decisions. Every day will present you with a “crisis of confidence” and it is good to have someone to consult with, but you don’t need a formal partnership to do that. Your law school buddy can be “of counsel” for purposes of that consultation. Stay solo, and you won’t need to be rescued from the “ice” that melts below your feet as your business structure disintegrates before your eyes.
Professor Gary Bauer has been a member of the full-time faculty at WMU-Cooley Law School since 1998. He now teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design. His blog,sololawyerbydesign.com, provides law students, recent solo practioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog post was first published on October 15, 2015.
Filed under Faculty Scholarship, Uncategorized
Award-winning senior shows how to rise above life’s challenges
If you looked up “resilient” in the dictionary, it would be fitting to find an image of Heather Spielmaker. The WMU-Cooley Law School graduating senior is the poster child for rising above life’s challenges with grace, strength, and even more options than she began with.
A mom at 19, Spielmaker had to trade in a fledgling college career to support herself and her son. When a subsequent marriage ended in divorce, she again found herself struggling to make ends meet for herself, her son, and her daughter.
Spielmaker, 43, didn’t give up. Instead, she not only survived the curves life threw at her, she thrived, and has taken it up another notch, making it her life’s mission to give to others she knows are facing the same challenges she’s gone through.
She’s gone on to graduate with high honors from Lansing Community College, and with honors from Michigan State University. And she’s about to earn her J.D. degree — with honors — from WMU-Cooley Law School.
For nearly nine years, Spielmaker was also the director of the school’s Center for Ethics, Service and Professionalism. In this role, she earned the Ingham County Bar Association’s highest honor for non-lawyers — the Liberty Bell Award — for her work in helping members of the military receive legal assistance through the school’s Service to Soldiers program.
Recently, Spielmaker earned another prestigious accolade when the National Association of Women Lawyers presented her with the Outstanding Law Student Award. The honor is given to a graduating law student who has demonstrated academic achievement; shown motivation, tenacity, and enthusiasm; and contributed to the advancement of women in society and the legal profession.
Giving back to the community is an integral part of Spielmaker’s makeup. She served on the Charlotte, Michigan, City Council, was a volunteer coordinator for Ingham Regional Medical Center, and became a charter member of the Capital Region Community Foundation Legacy Society. With that, she established the Heather Spielmaker Testamentary Fund with the foundation to support assistance for single parents and homeowners and programs that help emancipated minors.
Volkswagen’s Legal Issues Discussed by WMU-Cooley Experts
WMU-Cooley Law School Professors Mark Dotson and Paul Carrier are paying close attention to potential legal ramifications facing Volkswagen for rigging millions of cars with deceptive software that falsifies emission testing results. Professor Dotson teaches Torts and Remedies and has extensive knowledge of consumer protection laws. Professor Carrier teaches a variety of international law courses, which include European Union Law, International Business Law, and Public International Law.
Regarding fines that the German automaker faces in the United States, Dotson said, “Volkswagen is exposed to $18 billion in penalties to the U.S. government for indisputable pervasive fraud. This is not a circumstance where an engineer went rogue, but instead goes all the way to the top of the corporate ladder. The fine will be on the high end, especially since this a foreign corporation dumping pollutants on the mother land. This will be a political nightmare when comes down to the amount of the eventual penalties.”
Dotson does not believe there will be any personal injury litigation, but notes that Volkswagen will realize significant costs fixing the issue. “Unless attorneys can identify specific health risks from the emissions over the past several years and associate them with Volkswagen’s vehicles, there would be no personal injury civil liabilities,” said Dotson. “Theoretically the consumers will have to get their cars fixed, or turn the cars in. There are going to be significant costs to the company, either through a buy back, or retrofit.”
Volkswagen will face a multitude of law suits and at the same time will have to deal with consumer confidence issues, notes Dotson. “Depending on Volkswagen’s fix, assuming the company can remove the emission problem with a modification, then exposure and liability will turn to how satisfied the customers are with the vehicle. This will be a test of consumer confidence with the company and its products,” said Dotson. “No doubt there will be class action lawsuits brought on by consumers emphasizing the fraud. Damages could range from costs associated with additional emissions testing, decreased value of the vehicle due to the perception that the cars are environmentally unfit, to punitive damages because of the fraud. If there is one area of law, even though the loss here is economic in nature, where courts are most willing to impose penalties, whether by a jury’s determination or pursuant to a statutory consumer protection scheme, it is when it comes to fraud.”
Carrier notes that Volkswagen’s potential litigation in the German courts will not protect the automaker from sanctions in the United States. He also points out that criminal charges could be handed down in Germany and will be harder to prosecute in the United States. “The German automaker is clearly within the jurisdictional purview of the U.S. Courts and subject to the administrative penalties of the E.P.A. This is not to say that there may not be some state-to-state negotiations and coordination,” said Carrier. “Criminal penalties, if such would apply, would be more diplomatically problematic. There are issues of comity that would move criminality into the diplomatic sphere, such that U.S. Courts could defer to German prosecution pursuant to one or more legal doctrines.”
Carrier also notes there could be issues regarding monetary judgments. “If there is to be any monetary judgments, there could also be issues of enforceability. Unless the U.S. courts have jurisdiction over Volkswagen’s assets or the person, the legal mechanisms of Germany would need to be approached for enforcement,” said Carrier. “There is a recognized respect for international arbitration awards (in large part as a response to difficulties with the enforcement of court judgments). But this does not appear to be an arbitral issue.”
http://www.dealermarketing.com/law-professors-discuss-legal-ramifications-of-vw-emissions-scandal/
Filed under Faculty Scholarship, Uncategorized
Prof. Joe Kimble Is Right: In Legal Drafting Use the Word “Shall” at Your Peril
James D. Robb is Associate Dean of External Affairs and General Counsel at WMU-Cooley Law School.
How often do you find the word “shall” in a contract or legislation you are reviewing? Have you wondered what precisely that word means? Or what the parties or legislature actually intended? Is “shall” a promise? Is it a command? Is it a declaration of determination? Is it a permissive term? Is its use clear to you?
Does it mean “must” as in a contractual promise?
Seller shall maintain the property in good condition until closing.
Does it mean “will” as in a statement of future intent?
I shall stop at the store on the way home from work.
Is it a statement of determination?
I shall return!
Does it mean “may”?
No pedestrian shall enter the intersection against the red traffic light.
Is it an invitation?
Shall we go?
Obviously, the word “shall” has many meanings depending on the context. And often that context is clear. But consider what happens if the word shows up in a contract and is construed by a reviewing court to be ambiguous.
In fact, sloppy use of the word “shall” in a contract can be disastrous because a court that finds it ambiguous will construe it against the drafter. Our own Distinguished Professor Emeritus Joe Kimble, a leader of the plain language movement and one of the deans of America’s legal writing instructors, has pointed out how drafters use “shall” mindlessly. He has warned us that courts “read it any which way.” A recent important case bears him out, and even quotes him on the point.
In Orthopedic Specialists v. Allstate Insurance Company, No. 4D14-287 (Fla. Dist. Ct. App.) (August 19, 2015), the Florida Court of Appeals held the word “shall” to be inherently unclear and ambiguous, particularly when used in the phrase “shall be subject to.” The court then construed the word against the insurer that wrote a policy for personal injury protection. Professor Kimble’s warning is quoted with approval in footnote 3 of the concurring opinion.
My abridged version of the Oxford Universal English Dictionary, published in 1937, devotes 23 column inches─more than two thirds of an entire page of blindingly tiny print─to the definition of “shall.” That alone might suggest the word can be troublesome for those who need to draft with precision.
On a larger scale, Professor Kimble’s great book, Writing for Dollars, Writing to Please, demonstrates the undue cost and expense associated with forbidding, verbose, and unclear writing. I recommend it to you. In performing your own legal work, take his advice: be precise. Write clearly and to the point. And when tempted to use “shall,” think again. Perhaps the words “must,” “will,” or “may” will more clearly, and more safely, express your intent.
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