Next Steps.

Oral argument was before three judges: Judge Bogacz heard Grou ps 1 and 2 and granted the motion in both instances. Judge DePhillips heard Group t hree and denied the motion. Judge Fitzmaurice heard Groups 4 and 5 and granted the motion in both instances.

There were some consistent aspects of the argument that were unexpected and some aspects that were predictable: Notice that all of the judges seemed to decide the argument based on reasons external to your presentation. That is, they seemed to have more or less made up their minds irrespective of what you said in argument. At the most basic level, the evidence for this lies in the fact that none of them split their decisions, or the reasoning behind them. Though this may have seemed unsettling, especially when the judge gave you relatively little opportunity to speak to the merits of your argument, it is the way you'd more or less want to see this. The oral argument is not a debate or a performance. The thing that needs to be decided is about your clients' lives, not the quality of your lawyering. So the judge is going to focus on his/her understanding of the facts and the law, and try to reach an independent decision.

My impression was that, as I'd suggested in class, the only way to try to move the judge off the decision that he or she seemed to favor would have been to steer into the skid--get inside their understanding of the law and suggest ways in which that sense of the legal universe might lead to more varied outcomes than the judge saw.

For Bogacz I thought that meant puishing hard on the facts of Jack's problems as a litigant and the fact that he is NOT the subject of the fact-finding. For CWA to have porevailed as he seemed to see the case, it would have had to mount a convincing argument that Jack's care was notr at issue, that the parents have independent culpability even if Jack's care is not challenged, and that his pressence would mess up the case against the parents. In the absence of a significant role for Jack as the subject of the litiugation, he might well have been swayed by the separation of powers argumenbt -- that the prosecutioon is entitled to freedom to build its case.

For Fitzmaurice, I thought the weak spot would have lied in convincing her that the consequences of letting Jack in would be harmful to Hannah, primarily in terms of delay. If CWA could convince her that the reason he should not be in the case is that if he were a respondent CWA lacks the evid\ence to build a credible case of neglect against him (factually, legally, or both) and so he would necessarily be found fit, which would likely have the result of either getting the matter dismissed without reaching the parents' culpability or of delaying the whole thing inordinately. CWA should be able to avoid bringing cases against parties they feel they can't build a case against. She might have bought this.

For DePhillips, the key would have been to suggest the alternative the other judges came up with on their own -- adding a motion to modify the mpetition to include Jack as a respondent. He wasn't willing to do this on his own, but he might have been open to it if Jack's attorney had proposed it.

All three judges, interestingly, focused on issues that have not come up in the past: the potential conflict of interest for the parents being represented by a single attorney, and the difference between 'intervention' and being added as a respondent. Two of the judges gravitated toward simply adding Jack to the petition, even though I'm not aware of any law that gives them the power to do this directly. The judges were very sensitive to the risks for Jack in being named a respondent, and it might have been in someone's interests to suggest that there were potential benefits to Jack as well.

All in all, an interesting afternoon.

In terms of moving forward, the judge has granted Jack's motion and told you that you should try to reach closure on a settlement by next Monday or risk a finding of neglect and removal from the family entirely. To achieve this you will need to get me a settlement agreement by 9:00 Monday the 23rd. The agreement needs to be signed by the attorneys for all affected parties in your argument group and it needs to be approved on the website by your clients and your supervisors. If you don't reach settlement, you should submit individually a one oparagraph (or so) description of why you were unable to and what you tried to do. For those of you wanting to go the extra mile, a journal of your efforts to settle and your reflection on the process would be useful additions to your casefile.

Your clients and attorneys will be available to you between now and Monday on a pretty swift turnaround.

February 14, 2001

Press a face, go to its place.

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February 12, 2001

HERE IS WHAT I KNOW SO FAR ABOUT PLACEMENTS.

MANHATTAN

Friday morning session, arrive to be in the court at 10:00. For Wednesday afternoon session, arrive to be in court by 2:30 (all placements were coordinated by Judge Ross' court attorney, Ilana Gruebel [phone 212-374-8980]).

Judge	Ct Atty	Part	Flr	Phone	Day	Student
Susan Larabee	Alice Kim	7	9	374-6241	F	Traserra
Jody Adams	Jennifer Burtt	10	8	748-0031	F	Jessica
Gloria Sosa-Lintner	Virginia Giddens	2	9	374-8983	W	Joe
Helen Sturm	Jim Maguire	8	8	374-1844	F	Kim
Richard Ross	Ilana Gruebel	4		374-8980	F	Sandy
Mary Bednar	Ben Krull	1		748-0033	F	Debra

For Queens, arrive to be at court by 10:00 on Friday, 2:30 on Wednesday. You are going to see Terry in Room 405. She will likely hook you up with Karen Kolomechuk (phone 718-520-3986), the court attorney who will know your assignments.

For Brooklyn, arrive to be at court by 10:00 on Friday, 2:30 on Wednesday. You are going to see Anthony Lovell (phone: 718-643-5686), Judge Grosvenor's court attorney. He will assign you to a particular part.

For Savina in The Bronx, see Judge Richardson's court attorney, Richard Sekulski (phone: 718-590-3343).

  Subject: On Attendance and Punctuality Posted by John Farago on Jan 28, 2001

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January 29, 2001

A Few Curmudgeonly Words on Attendance and Punctuality:

It is critically important to understand that these two courses Ð totaling almost a half of your full-time workload for the semesterÐ do not unfold in a school setting. They are part of a work environment, a functioning law office in which the time we have scheduled together is time in which collective/collaborative work can presumptively be undertaken. The task of the semester is extremely tightly choreographed, and the timing is precise. There are consequences, not just for you but for your colleagues, when you are absent or late.

I don't care whether you attend class or not, or whether you are punctual or not. But I do care, a good deal, whether you are acting professionally or not. To act professionally, in part, means that when you are not there your client's interests and the firm's are covered and represented. It means, among other things, that the client will not suffer because you've missed whatever content was covered in class that day. It means that your colleagues won't suffer because we have to repeat material in class for your benefit. It means that I won't have to meet with you separately to cover what went on in class, but instead can assume that you are as fully apprised of what took place as if you had been there in person.

Part of this is about content. But a more crucial part is about logistics. The work of the office involves complex scheduling, including meetings with me, meetings with your clients, meetings with each other, meetings with mentors, and connection to the court. Material is distributed during class time, and without warning. The seminar moves forward inexorably. As new material unfolds, you can't go back and 'catch up' as though you were not privy to what has unfolded since then. Stuff that's missed is missed and while it's always possible to try to figure out how best to pick up the pieces, doing so is never identical to having done the work in the first place.

It is not like another class, in which you can vary the tempo on your own so long as you reach the finish lines on time. In these two courses, the finish line is always just in front of where your foot is RIGHT NOW. Everything is carefully designed. When you have two weeks to do an assignment, that's because I think the assignment takes two weeks to do. If you wait till the last couple of days to do it, you will likely find yourself caught up short. Canceled meetings, in general, can't be rescheduled. We'll meet, but time will have passed, the simulation will have shifted, and when the semester ends it'll probably be the case that we will have met one time fewer than we otherwise could have.

When you are not in the room during time that we are scheduled to be together. I won't take attendance and I won't diminish your grade. But the logistics of the work will play out during that time and unless you have someone in place, someone you trust as you would yourself to act on your behalf, you will be letting yourself, your client, and your colleagues down. That means that there needs to be someone who knows where you are and how to reach you, someone who knows that if you're not in class they will need to let you know what went on in sufficient detail to make you comfortable with living with the consequences, someone who knows your availability sufficiently well to sign you up for meetings and to commit you to being there at the time they signed you up for, someone who can see to it that you receive whatever material is distributed on a given day, someone who will be sure to let you know if the syllabus has been changed, if we're meeting at a different time or place.

So let me be clear. You don't need to be here at any given time or on any given day. But when you are not here, you need to do a good deal more than just call me up to let me know that you're out sick (I appreciate hearing from you if you can let me know, but I understand if you can't). You have to handle the situation professionally, you need to cover your ass, to not leave yourself exposed. You need a plan in place for generic emergencies, and a more specific plan if you have time to realize that you'll be out or late on a particular day.

An example. We will generally handle logistics at the start of the class hour. If you are not there but a classmate is who knows your availability and says that they can speak for you, that's fine. Or if someone can reach you on a cell phone and check availability with you, that's fine as well. We won't have to re-do it or leave it hanging because you're not there. If I am handing out role instructions and someone else (in the same role as you) takes an extra set for you, and you accept the responsibility to get the material from them, that's fine.

What I am trying to get across is that, barring personal catastrophes, I never ever want to hear anyone in the class relying on the fact that they weren't in the room when a particular thing was said, meeting scheduled, or agenda set as an explanation for why they dropped a ball or need to be brought up to speed. If you rely on someone who gives you as much detail as it requires, if there's someone in the room carrying your portfolio at any given time, if you know what the work is, when it's due and can keep up with the facts and the law as they unfold, so far as I'm concerned you're present in the room. Anything less than that and you're letting us down.

I know that people get sick. That the roads back up. That the subways stall. That people have lives and families and jobs and a Real World in which they live. I am subject to these constraints as well, and I get hoist up by them at times too. The key is to handle the situation professionally, to act as though other people are depending on you.

I expect to be able to start class within a minute or two of when it's scheduled to start, with virtually everyone being either present or accounted for (in the sense of some specific person identified who can speak on their behalf). I expect that if you leave early or step out of the room, you'll have someone who knows they're your eyes and ears (and calendar).

All other things being equal, it's probably easiest just to be there and be there promptly. But it's up to you.