Despite increasing pressure on the SEC to exercise its Dodd-Frank-granted explicit authority to ban mandatory securities arbitration, SEC Commissioner Elisse Walter stated earlier this week, according to a report in Reuters, that the Commission won’t have time to address the issue until 2014, in light of the other mandates of Dodd-Frank.  It’s a shame that the issue won’t get the regulatory attention it deserves due to lack of resources.

    

From Jean Sternlight via the list serv.

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University of Nevada Las Vegas
William S. Boyd School of Law
Saltman Center for Conflict Resolution

Psychology and Lawyering: Coalescing the Field

Friday, Feb. 21 and Saturday, Feb. 22, 2014
UNLV William S. Boyd School of Law
Las Vegas, Nevada

In recent years both academics and practitioners have increasingly begun to recognize that the field of psychology has a tremendous amount to offer practicing attorneys. Traditionally, those who connected law and psychology focused primarily on juries, trials, and criminals’ states of mind. But today, researchers are broadening their focus to examine the ways in which psychology can be of use to a wide variety of common lawyering practices, including interviewing, counseling, writing, negotiation, and ethical conduct as well as attorney satisfaction and business success. For one example of this work see Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making (ABA 2012).

This growing field draws broadly from cognitive and social psychology pertaining to memory, judgment and decisionmaking, and persuasion; developmental psychology examining attachment theory or social and emotional development; clinical psychology relating to  counseling, meditation, and communication; neuroscience as it relates to economic and moral decision making, emotion, and communication; and organizational psychology as it relates to the structures of legal practice. Legal researchers have come to this interdisciplinary field with varied backgrounds, including from clinical work, legal writing, alternative dispute resolution, pretrial litigation, family law, immigration, transactional practice, criminal law, health law, and many more.

Yet, while many are interested in the field of psychology and lawyering, this area has not yet fully coalesced. To date no conferences, listserves, or sections of organizations focus primarily on the potential contributions of psychological research to lawyering. Thus, while some in the growing field do exchange ideas and papers, others miss out on opportunities to benefit from each others’ ideas and experience.

Our goal in hosting this conference is to begin to fill this void – to bring together a broad range of academics in both law and psychology to focus on the many insights empirical psychological research can provide to law students and practicing attorneys. The focus will be on lawyering rather than law, in that we will examine how knowledge of psychology can enhance the practice of law rather than how it can inform substantive law (though the latter is also an interesting and important question). We will also consider how best to teach this material to law students. And, the conference will include a discussion of next steps we might take to further advance this field.

We welcome proposals (250 words or less) from prospective presenters from law, psychology, or other disciplines who wish to present on how insights drawn from psychological research can be applied to help lawyers better represent their clients. (Presenters will be expected to pay their own expenses, except that UNLV will provide some nice meals.) Please submit your abstract electronically as a Word document or PDF to Jean.Sternlight@unlv.edu by July 15, 2013. Include a title and
your contact information as well. The Nevada Law Journal has offered to publish approximately ten papers arising out of this conference. Please let us know if you think you might be interested in this publication opportunity. Final papers would be due in the summer of 2014.

Finally, if you are interested in attending the conference but prefer not to make a presentation, please let us know that as well. We will need panel chairs, attendees, and quite likely commentators. While there is no conference registration fee, attendance will be limited. You can reserve a spot by registering here: http://law.unlv.edu/registration-LawPsych2014. We will be providing more details on the conference, accommodations and other matters closer to the date.

If you have questions please contact:

Jean R. Sternlight
Saltman Professor of Law & Director Saltman Center for Conflict Resolution
University of  Nevada, Las Vegas Boyd School of Law
Jean.Sternlight@unlv.edu
(702) 895-2358

    

Responding to substantial pressure from regulators and the investing public, the brokerage firm Charles Schwab reversed itself and eliminated the class action waiver clause from its pre-dispute arbitration clause in its customer account agreements. See news coverage here. Readers of this blog know from my previous posts that in early 2012 FINRA brought a disciplinary action against Schwab for violating its rules that bar class action waivers in customer agreements. A hearing panel concluded that, while Schwab’s actions did in fact violate FINRA conduct rules, the Federal Arbitration Act precluded enforcement of those rules. That ruling is currently on appeal before FINRA’s National Adjudicatory Council with a decision not expected until late this year. Professor Barbara and I recently filed an amicus brief in that appeal in support of FINRA Enforcement arguing the hearing panel wrongly decided that the FAA bars enforcement of FINRA rules.

Because the ruling threatens to cripple the ability of FINRA to regulate securities arbitration and thus weaken investor protection, federal legislators, state securities regulators, and investor advocacy groups have once again urged the SEC to exercise its authority to eliminate mandatory securities arbitration. Schwab’s strategic misstep may end up being the straw that broke the camel’s back.

Stay tuned for the next installment of FINRA v. Schwab!

    

OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008.  He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.”  For more information, see here.

One interesting point is the issue of whether Simpson’s lawyer failed to convey a plea offer.  Simpson is reportedly stating that if the offer had been conveyed, he would have taken it rather than going forward with trial.  This is essentially the same scenario of Missouri v. Frye, a case the US Supreme Court decided in the last term in which they held that the failure to convey the offer constituted ineffective assistance of counsel.  I blogged about that decision here .

The twist in the current OJ Simpson appeal is that the prosecutor is reportedly denying there were serious plea negotiations which would mean Simpson’s defense lawyer did not fail to convey any offer as there wasn’t a specific offer made.  This might lead to an even more interesting question: Is it ineffective assistance of counsel if a defense lawyer does not negotiate a plea offer in a case?  Clearly there are cases where the prosecutor will make no offer due to the charges (murder cases are frequently in this category).  But, Simpson’s case doesn’t seem to fall into the category of the type of case where no offer would be made.  In these circumstances, is it the defense lawyer’s duty to negotiate an offer, even if their client says they don’t want one?   I know that when I was a public defender I considered it my job to negotiate the best offer possible for every case.  I had a lot of clients who initially told me “no deals” but when confronted with the reality of going to trial became very willing to take a deal.  It would seem to me that negotiating a firm plea offer is something defense lawyers should be striving to do as part of their basic preparation in every case.

But, the Simpson appeal may not reach this question.

    

Back in the day Kevin Underhill and I were young associates at large law firms in Kansas City and living the life that only single people with lots of disposable income can.  Now he’s a big time lawyer in San Francisco and has the funniest legal blog there is – Lowering the Bar - and I’m simply wishing I could be half as funny as Kevin.  On Fridays he sends out an email with the week’s strangest legal stories and this one about power imbalances in negotiation caught my eye.  Thanks Kevin for keeping me in stitches over the years.

For the full post and more of a laugh, go here.

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TIP: If You’re Standing in Front of a Car, You Are In a Poor Negotiating Position

On the other hand, it could get significantly worse:`

Just to be clear, that car is not parked. It is traveling down a road in Roswell, Georgia, at what I would guess is around 45 mph. The hood ornament is a Mr. Elton Kim, who saw the driver of said car back into his wife’s SUV and unwisely chose to confront the driver. Well, it wasn’t so much the confrontation that was unwise as the location he chose: directly in front of the woman’s car. When she accelerated, Kim jumped onto the hood, and away they went.

“His objective was to have her stop,” said his wife unnecessarily, “not to go for a joyride.” You wouldn’t know it, though, from his demeanor, as he appears to be reasonably calm despite the fact that he is clinging to the hood of a moving car. Granted, it’s not like there was a whole lot he could do physically during that time, but he isn’t screaming or anything like that. I’d like to think he was able to enjoy himself at least to some extent.

He does shout “call the police!” to the guy taking the video (from a car driving alongside), who responds “I will!” but then also shouts back, “Did you call them yet?!” Yes, I just fished out my cellphone and called them with one hand while I was clinging to the hood of this moving car, jackass. I also texted them and did a quick Twitter update. Does it matter? I don’t think the cops’ll be too upset if they get more than one call about somebody clinging to the hood of a moving car, so why don’t you STOP FILMING ME AND CALL THE POLICE?! Unbelievable.