Strategic rules governing the handling of expert-witness testimony must be revisited in light of the Daubert evolution—referred to as Daubertization—over the past fifteen years. The risk of losing a post-Daubert admissibility challenge is a daunting threat for trial lawyers and other attorneys practicing in the pretrial trenches where the battle often takes place. Many lawyers who do not consider themselves “trial lawyers” must retool their thinking when dealing with pretrial discovery involving any proposed expert witness where the Federal Rule of Evidence, Rule 104 admissibility proceeding is a virtual trial subject to an abuse-of-discretion standard on appellate review. This becomes increasingly important as the number and scope of admissibility challenges escalate, as well as when trial courts take judicial notice of prior expert admissibility rulings. As the Supreme Court has admonished, “[i]t is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.”
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Virtually all law students are required to learn oral advocacy skills at some point during their legal education. Typically, these skills are cultivated through at least one oral argument assignment, which often consists of an appellate oral argument that is given as part of the students’ first-year legal research and writing course or as part of a moot court competition. While appellate courts do not grant oral arguments as often as they used to, oral advocacy remains a critical skill for law students to learn and cultivate, no matter which area of law they practice upon graduation.
Unfortunately, the prospect of learning this critical skill through an oral argument assignment can be disquieting to students. The main reason for this unease is simple—most law students have little to no oral advocacy experience. However, students may ease their anxiety and ultimately deliver an excellent oral argument if they fully understand the purposes of the argument and if they thoroughly prepare for the argument. This Article is targeted at oral argument novices. It discusses how you, as a beginner to appellate oral argument, may effectively prepare and deliver an argument, particularly if you are giving this argument as part of your law school’s legal research and writing course or as a competitor in a moot court competition.
I was just a young woman as staff director of the Florida House Judiciary Committee when a tall man walked in and made sure that we knew who he was. He made sure we knew that he was there to help us and to back us up, and Reece Smith has backed me up every time I have needed him over a long time of service. My service has been influenced extraordinarily by this man who cares so much, and who embodies the word pro bono for all America and for the world in terms of how lawyers should react to their professional responsibilities.
I share with you a quick observation. James Boswell wrote The Life of Samuel Johnson. Johnson, of course a brilliant man, gave us the first dictionary. In The Life of Samuel Johnson, Boswell repeated one of Dr. Johnson’s famous quotes: people who write lapidary inscriptions are not under oath. Well, most of you, I am sure, certainly those who went to Stetson, know what a lapidary inscription is. But some of us may not know.
A lapidary inscription is no more and no less than a tombstone epitaph. So, Dr. Johnson was telling us that people who inscribe tombstone epitaphs are not under oath. Well, let me suggest to you that people who introduce speakers or people like myself at functions such as this are, likewise, not under oath.
The teacher wrote the day’s journal assignment on the blackboard: “Write a paragraph about yourself; make sure to use descriptive adjectives.” That night, while grading the journal entries, the teacher found one that stood out from the rest:
My name is Jane, but kids do not call me by my name. They call me fatso, hippo, piggy-wiggy, blimp, heifer, and two-ton. Mostly, they whisper in front of me and laugh at me. I do not have any friends. I’m embarrassed to go to school or to even be seen in public. That is why I’m absent from school a lot. I want to find a hiding place and never come out. I don’t have any brothers or sisters. I love my mom and dad more than anything else. I guess my best friend is my dog, Snowball. I love her too. She is the only one that sees me cry. I feel like crying all day, every day. I wish that I were not overweight. I weigh 200 pounds. Mom and Dad are overweight too. All of us are trying very hard to lose weight. If I don’t lose weight, I will be taken away from Mom, Dad, and Snowball. I’m so scared. The more I try to lose weight, the more I seem to gain. I don’t know what to do. Mom and Dad are scared too. They try not to show it, but I can tell by their faces that they are scared. Every night I hug Snowball, close my eyes, and pray that everything will be alright.
Global warming is one of the most important and farreaching environmental issues of the twenty-first century. In response to this threat, California authorized the first industrywide, mandatory cap-and-trade program for greenhouse gases (“GHGs”) in the nation—the California Global Warming Solutions Act of 2006 (“Global Warming Solutions Act”). This law will establish a mandatory greenhouse-gas (“GHG”) reporting and registry system, require emission levels in 2020 to equal those in 1990, and allow market mechanisms to be used to achieve this target. Considering that California has blazed the path for past environmental policies, this law may prove to be very significant. For example, California passed clean-air legislation that led to the Federal Clean Air Act (“CAA”).5 However, other states must enact similar laws if the states wish to prompt federal action against the problem of global warming.
Florida is especially vulnerable to the effects of global warming. For instance, increasing temperatures caused by global warming will melt glacial ice, causing sea levels to rise and the coastline to move inland.8 States that act now to combat global warming will be better equipped to handle future federal legislation. Fortunately, there are economic as well as other benefits associated with curbing GHGs. Therefore, it is in Florida’s best interests to take proactive steps to reduce GHG emissions. It only just began this process in June 2006 by creating Florida’s Energy Commission to develop a climate-action plan. Later, Republican Governor Charlie Crist created the Florida Governor’s Action Team on Energy and Climate Change (“Action Team”) to develop Florida’s climate-action plan further.
Today, writers, photographers, musicians, entertainers, commentators, and even the average Joe uploading material on Web sites like YouTube test the limits of First Amendment protections of free speech when they author and broadcast thoughts, actions, and reactions in print, over the airwaves, and through the Internet. Increasingly, many people question whether there are limits to what you can say to and about others. Americans value freedom of speech more than other fundamental rights in many ways. But it is the duty of courts to determine when basic constitutional protections must bow to protect the welfare, health, and safety of society, is it not? And as such, what should happen to people who test those limits? Should they be demoted or fired from their jobs in the media if they cross certain lines with their speech? Should entertainers, like comedians, singers, songwriters, and media producers, be fined for foul language and sexually graphic lyrics? Should private citizens who post offensive material on the Internet be held accountable if their postings incite others to commit violent or demeaning acts? How do we acknowledge and protect our fundamental freedom of speech, yet protect children from harmful content which they may easily access through television, radio, and the Internet? Freedom and culture seem to collide when it comes to the discussion of First Amendment protections. The articles in this Issue concern difficulties intertwined in today’s culture expressions and fundamental freedoms.
There are many factors that make a country’s culture what it is. Two of the most important are the use of the State’s police power to protect public morality and the moral influence of religion. The United States Supreme Court, since at least the Warren Court, has interpreted the First Amendment’s speech and Establishment of Religion clauses in ways that are not only seriously incorrect but that played, and continue to play, a major negative role in the decline of American culture. Other factors are involved, but the courts have severely damaged the ability of State and Church to retard the advance of those other factors or perhaps reverse them.
In The Decline of American Culture: The Role of the Federal Judiciary, Professor Thomas Marks suggests that several federal court opinions overturning regulations against certain swear words in broadcast media have in part caused a general decline in public morality. Most recently, in Fox Television Stations, Inc. v. Federal Communications Commission, the United States Court of Appeals for the Second Circuit invalidated a Federal Communications Commission (FCC) rule change regarding “fleeting expletives.” The FCC had expanded the previous rule by imposing a fine on broadcasters who used certain swear words in an “isolated, non-literal, fleeting” manner. Against a dissent by Judge Leval, the panel majority held that the rule change was not properly explained and was therefore “arbitrary” under the Administrative Procedure Act.
A man’s tooth is extracted with a pair of pliers. A second man eats a frog. Still, another man’s hair is intentionally set ablaze. These are not the sadistic human experiments performed on concentration camp inmates by Dr. Josef Mengele. Rather, they are real, videotaped events of homeless people engaged in dangerous and degrading acts for the price of a drink or a bottle of alcohol. For the producers and distributors of Bumfights, the performance of dangerous, live stunts by the homeless is entertainment that earns multimillion-dollar profits.