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15 Prac. Litig. 1 (2004)

handle is hein.ali/practlit0015 and id is 1 raw text is: THE PRACTICAL LITIGATOR JANUARY 2004 VOLUME 15/NUMBER 1 Published by The American Law Institute-American Bar Association Committee on Continuing Professional Education six times a year Litigating The Administrative Law Case Daniel Riesel and Elizabeth Read 7 There is no question about it: when you have the opportunity, you should try to get the best result you can for the client in front of the appropriate adminis- trative agency. But sometimes that just isn't possible; and the agency may take the position that its deci- sion-making is not subject to judicial review. In this article, Daniel Riesel and Elizabeth Read discuss typical arguments made by administrative agencies to forestall review, the administrative record and dis- covery, contents of the record, and the limits of judi- cial deference to agency action. Are Attorney Contingency Fees Included In A Client's Gross Taxable Income? Robert S. Schwartz 17 Contingency-fee clients are never too happy with the idea that the lawyer gets a substantial portion of the award. But that pales in comparison to how they'd feel if they had to pay taxes on the lawyer's fee. Fortunately, you can avoid this unpleasant result. In this article, Robert S. Schwartz discusses the rele- vant federal tax decisions, and offers tips for tax- friendly contingency fee agreements. It's Rarely Too Late To Say You're Sorry Bradley M. Henry 31 Very few attorneys, in the crush of litigation, give thought to apologies. But to the litigant who feels wronged, an apology can be the thing that leads to a satisfactory resolution of the case. In this article, Bradley M. Henry discusses the general types of apology, what you need to know about your case to assess when and how to use them, examines a case study, and provides practical pointers for getting it said and done. How To Bar Claims Not Disclosed In Bankruptcy Jeffrey A. Dailey 41 It is not uncommon for a bankrupt to initiate litiga- tion based on claims that should have been disclosed in the bankruptcy proceeding. If the claim could have been disclosed in the bankruptcy, then there is a good chance of defeating it on the basis of judicial estoppel. In this article, Jeffrey A. Dailey discusses the duty to disclose, establishing that a party has taken irreconcilable positions, establishing bad faith, and that dismissal is the appropriate sanction. The Psychology Of Medical Malpractice Litigation Michael J. Saks 47 Most lawyers have opinions about how jurors and other actors behave in litigation. But as often as not, these opinions aren't based on empirical evidence. In this article, Michael J. Saks provides a statistical pic- ture of medical malpractice cases, and discusses fac- tors that affect juror decision-making, overcoming the effects of impermissible biases, and evaluating jury verdicts. Some Thoughts About Opening Statements Eliot G. Disner 57 Jurors don't necessarily make up their minds about a case during the opening statement, but this is your first chance to establish a rapport. In this article, Eliot G. Disner discusses some of the inherent ad- vantages and drawbacks, how to use imagery, the disorder of proof, and suggests a few ways to make sure that you leave jurors with impressions that they will carry throughout the trial. The Law of the Litigator Programs, Publications, and Playbacks 5 ALI-ABA CLE Calendar

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