Article Preview: Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur

It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.

In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.

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Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause of action for intentional infliction of emotional distress (IIED). Professor Clay Calvert explores this aspect of Hogan’s case in his Article, Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED’s Constitutionalization, and a Path Forward for Revenge Porn Victims.

At the outset of his Article, Professor Calvert explores Florida’s legal definition of IIED and its elements, as applied in Bollea. He also describes the constitutional layer of protection for defendants in speech-based IIED claims added by the U.S. Supreme Court in Hustler Magazine v. Falwell and Snyder v. Phelps. Specifically, Professor Calvert utilizes the decisions reached in Falwell and Snyder to explain the tension between IIED and the freedom of speech protected by the First Amendment. Professor Calvert asserts that while these cases strengthened First Amendment protections, they alternatively narrowed the circumstances in which an IIED claim can prevail.

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Article Preview: A Behavioral Approach to Lawyer Mistake and Apology

Why do new attorneys make mistakes? How can new attorneys remedy these mistakes and avoid them in the future? How can law firms provide the guidance necessary to assist new attorneys in their transition to the profession? In her article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean Catherine Gage O’Grady utilizes testimonials from practicing attorneys, principles from behavioral psychology, and examples from the medical profession to answer those questions; and she provides a detailed behavioral analysis of lawyering and legal ethical decision-making.

Associate Dean O’Grady begins her article by reviewing several concepts, such as overconfidence bias and cognitive dissonance, that are fundamental to an understanding of behavioral psychology. She argues that these concepts lead to mistakes in the law firm setting, and she provides several examples of how the concepts may affect new attorneys. For example, Associate Dean O’Grady states that confirmation bias—“the tendency to focus on information that confirms our decisions and to undervalue information that cuts the other way”—may lead a new attorney to make significant mistakes while performing legal research. This is because a new attorney will focus his or her research efforts to confirm legal conclusions already reached, even if those conclusions were wrong from the beginning. She also argues that cognitive dissonance—“a state of tension that occurs when a person realizes she is holding two psychologically inconsistent idea or beliefs”—can also result in lawyering mistakes. Associate Dean O’Grady poses the example that when a new attorney, who thinks of him- or herself as timely and organized, is suddenly faced with a new failure to stay organized or respond to client emails, he or she will experience cognitive dissonance and will likely make excuses for these mistakes. The new attorney, therefore, will be unable to acknowledge his or her mistakes.

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Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent clients.

Professor Eldred’s article—a response to Associate Dean Catherine Gage O’Grady’s article, A Behavioral Approach to Lawyer Mistake and Apologyfocuses around the phenomenon of “moral courage,” the ability of some lawyers to act ethically in the face of pressure to the contrary. He seeks to answer why some lawyers resist the temptations against subpar performance and also offers knowledge on what can be done to encourage greater acts of moral courage by others. While Associate Dean O’Grady’s article focuses on mistake recognition and acknowledgement, Professor Eldred focuses on why people are able to act ethically despite pressures to do otherwise.

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Article Preview: Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment

Lawyers and law students are taught how to spot ethical issues through analysis of hypothetical situations. When it comes to recognizing our own ethical mistakes, there appears to be a disconnect between the ability to apply that knowledge to theoretical situations and to use it to resolve situations in practice.

In their article Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment, authors Milton C. Regan, Jr. and Nancy L. Sachs respond to Associate Dean Catherine Gage O’Grady’s analysis of the “dynamics that can affect new lawyer’s ability to recognize that they have made a mistake and their willingness to acknowledge it to others.” As both Associate Dean O’Grady and the authors point out, these kinds of mistakes can have significant ethical implications if the mistaken attorney cannot or will not acknowledge the impact of her error. In order to assist in the process of acknowledgment and avoid ethical issues, Regan and Sachs propose a framework for guiding these issues to their appropriate conclusion. Regan and Sachs find value in the union of psychology and ethics to guide the thinking of a new lawyer deciding whether to acknowledge her mistake to others and the ethical violations that can arise from that choice.

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Article Preview: Lawyers, Impression Management and the Fear of Failure

Lawyers often struggle to recognize and learn from their mistakes. Associate Dean Catherine Gage O’Grady has made the argument in her article, A Behavioral Approach to Lawyer Mistake and Apology, that this is a result of cognitive biases, and offered insight about how law firms might respond to facilitate learning, professional growth, and stronger ethics. In his Response Article, Lawyers, Impression Management and the Fear of Failure, Donald C. Langevoort not only supports O’Grady’s position, but also presents additional reasons to pay close attention to the insight provided by Associate Dean O’Grady.

At the outset of his response article, Langevoort suggests that researchers who attempt to predict lawyers’ behavior face challenges when relying on cognitive or social psychology understandings. Specifically, he points out that the means by which information is gathered and used by psychological experimentation is inherently problematic. Langevoort recommends that researchers should contemplate taking additional and, in his view, necessary steps before offering predictions and suggestions about the behavior of lawyers. Although he strongly urges researchers to follow his recommendations, Langevoort acknowledges that doing so may be difficult because lawyers often fail to cooperate with researchers.

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Contributing Author Profile: Eric J. Gouvin

The New England Law Review is honored to announce that Eric J. Gouvin will be contributing to On Remand this spring.

Gouvin, Dean of Western New England University School of Law, has contributed to corporate law scholarship and entrepreneurship education since 1991, when he first became a member of Western New England’s faculty. In addition to teaching numerous courses in corporate, transactional, and entrepreneurship law for the past twenty-five years, Dean Gouvin established both the Small Business Clinic and the Center for Innovation & Entrepreneurship at Western New England.

Dean Gouvin’s strong interest in corporate and entrepreneurship law has extended throughout the New England region and beyond. He currently serves on the Board of Editors for the Kauffman Foundation’s eLaw website, on the entrepreneurial ecosytem committee of the Economic Development Council of Western Massachusetts, and on the board of the Harold Grinspoon Charitable Foundation’s Entrepreneurship Initiative. Dean Gouvin has also taught in Lithuania and France as a visiting professor, presented in China as a Fulbright Specialist, and delivered papers in England, Belgium, Greece, France, and Canada. His scholarly work often provides an international or comparative law perspective.

Before joining the faculty at Western New England, Dean Gouvin represented Fortune 500 companies and closely held businesses at the Portland, Maine firm of Bernstein, Shur, Sawyer and Nelson. He earned his B.A. from Cornell University; J.D. and LL.M. from Boston University; and M.P.A. from Harvard University.

Contributing Author: Christine L. Vana

Article Preview: Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports

Sports arose in the primitive era as activities used to train warriors for battle. They continue to this day, though for different purposes: as a form of recreation, as a profession, and as a form of relaxation for spectators watching them. While women who play sports have gradually gained some acceptance in society, they experience gender discrimination and inequality compared to their male counterparts, in the form of lower wages, fewer endorsements, and less media coverage. This is especially true in professional sports. Tanya Dennis, the author of Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports, proposes a new statute (the “Professional Sports Act of 2015”), which provides women protection against gender discrimination in professional sports, and explains why the current state of the law is not adequate.

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Article Preview: One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights

The Fifth Amendment of the United States Constitution protects individual criminal defendants against self-incrimination. However, as the world continues to develop at such a rapid pace and technology becomes synonymous with everyday life, Fifth Amendment protections become clouded. In 2014, the Massachusetts Supreme Judicial Court (“SJC”), in Commonwealth v. Galfgatt, significantly reduced Fifth Amendments protections by failing to extend these rights to the defendant, who was compelled to produce decryption keys encrypting mortgage schemes. Specifically, the SJC lowered the evidentiary burden of reasonable particularity in its forgone conclusion analysis. Additionally, the SJC failed to apply Article 12 of the Massachusetts constitution in its analysis.

In her article, One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights, author Lauren DeMatteo argues that the SJC incorrectly held that the government’s suspicion was enough proof to sidestep the defendant’s constitutional rights that the evidence was a forgone conclusion. Moreover, in reaching this result, the SJC lowered the government’s evidentiary burden to probable cause, while failing to apply an Article 12 analysis.

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Article Preview: The (Unfinished) Growth of the Juvenile Justice System

The juvenile justice system has made dramatic changes over the past thirty years. In three landmark cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Supreme Court recognized that juvenile offenders are different from adult offenders. These cases marked a shift in the way the judiciary understands the cognitive differences between juveniles and adults. However, despite advancements in the system, courts have failed to properly focus on the goal of rehabilitation.

In The (Unfinished) Growth of the Juvenile Justice System, which will be featured in the New England Law Review’s Volume 50, Issue 2, Conor Walsh argues that a focus on rehabilitation is the key to meaningful reform of the juvenile justice system. With high recidivism rates, courts have incorrectly focused on punishment, rather than rehabilitation, so juvenile offenders are not successfully assimilating back into society. With most juvenile offenders likely to re-enter society, rehabilitation is necessary to ensure a successful transition which, in turn, prevents recidivism. Moreover, because juveniles are more capable of change than adults, rehabilitation is a realistic possibility.

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