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Front Matter Source: Litigation, Vol. 28, No. 1, CHANCE (Fall 2001) Published by: American Bar Association Stable URL: http://www.jstor.org/stable/29760244 . Accessed: 15/06/2014 23:28 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation. http://www.jstor.org This content downloaded from 62.122.72.154 on Sun, 15 Jun 2014 23:28:05 PM All use subject to JSTOR Terms and Conditions

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Front MatterSource: Litigation, Vol. 28, No. 1, CHANCE (Fall 2001)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760244 .

Accessed: 15/06/2014 23:28

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 62.122.72.154 on Sun, 15 Jun 2014 23:28:05 PMAll use subject to JSTOR Terms and Conditions

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This content downloaded from 62.122.72.154 on Sun, 15 Jun 2014 23:28:05 PMAll use subject to JSTOR Terms and Conditions

Table of Contents Litigation Fall 2001 Volume 28 Number 1

Opening Statement:-Robert A. Clifford-1 The Impact of Popular Culture on the Perception of Lawyers

From the Bench:-Warren D. Wolfson-3

Evidence Advocacy: The Judge's Perspective

CHANCE

Litigating History-Barry Richard-8

Chance by Choice:-Richard E. Moot-14

Looking Back on 50 Years of Litigation

Qui Tarn Litigation-Robin Page West-21

Contingency Fees: Weigh the Odds-Kenneth P. Nolan-26

Taking Chances at Depositions-Laurin H. Mills-30

Settle or Roll the Dice?-Mark R. Anderson-37

Forensic DNA Case Evaluation and Litigation -Gregory W. O'Reilly-43 and Allan Sincox

Pro Bono Practice-Barbara K. Kagan-51

Legal Lore: Schumann v. Wieck-Robert and Marilyn Aitken ? 55 The Battle for Clara

Trial Notebook: Cross-Examination Choices-James W. McElhaney-57

Advance Sheet-Robert E. Shapiro-59

Literary Trials: Othello-William Shakespeare-72

Cover illustration by W. B. Park.

For lithographic prints of Litigation cover art, contact Park-Art Studio, 107 Pine Needle Lane,

Altamonte Springs, Florida 32714. Web site: wbpark.com E-mail: [email protected].

Litigation (ISSN 0097-9813) is published quarterly by the Section of Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Periodical postage paid at Chicago, IL, and additional mailing offices. Subscription price for Section members is $10 (included in $45 membership dues). Institutions and individuals not eligible for Association membership may subscribe to Litigation for $40 a year ($45 in foreign countries). Per copy price to members and nonmembers is $12. Additional copies of issues published in the past two years may be purchased to the extent available from the Order Fulfillment Department, ABA; 312/988-5522. Issues published more than two years ago are sold by William S. Hein & Co., 1285 Main Street, Buffalo, NY 14209. Correspondence and manuscripts should be sent to the Managing Editor, Annemarie Micklo. POSTMASTER: Send address changes to Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. For permission to reprint, write to Director, Copyrights and Contracts, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Copyright ? 2001, American Bar Association. All rights reserved, www.abanet.org/litigation/home.html

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IN MKMOKIAM

It is with some irony that we publish this issue, Chance, in the wake of the tragic events of September 11,2001.

Our fellow Americans, along with friends from other countries, who were killed or injured did nothing to pro?

voke or deserve their fate. They were innocent victims of chance and the brutal purpose of zealots who wish to

destroy this great nation. By striking indiscriminately at some of us, our attackers have struck at each and every

one of us.

The editors and staff of this publication express our most profound sense of sorrow, respect, and fellowship for

those who lost their lives or were injured in these tragic events, and for their loved ones. We also wish to rec?

ognize and acknowledge the many Americans who responded selflessly to this crisis in the best tradition of our

great country, some at the cost of their own lives. We will thrive as a nation because we are strong as a people,

even in the darkest times; because we subscribe to the rule of law, not a demented fanaticism; and because we

stand united in freedom.

Chance

Litigation is a game of chance. From the moment your client walks in the door, every choice you make involves risk. You might not like to see it that way, but you cannot

escape it. Whether to sue, when to sue, where to sue, who to sue, how to sue, etc., etc. Or, when you are on the receiv?

ing end, answer or move to dismiss, remove or stay and defend? And that's only the beginning. Sometimes your client will say, "I don't know if you should ask that ques? tion. It's risky." But not asking that question is also risky. So we get the best information we can, maybe the best

advice, and we call upon our experience, judgment, and instincts and play the percentages. We take our best shot and move on. In this spirit: ? Barry Richard recounts the gambles that both sides

took, and the strategies that he pursued on behalf of

George W. Bush, in the extraordinary 2000 presidential election litigation.

? Richard Moot looks back on a career of taking chances, gutsy moves that paid off in spades for clients in trouble.

? Robin Page West offers advice, from experience, on how to play high-stakes poker for whistleblowers, in a tenuous partnership with the U.S. government, bringing

qui tarn lawsuits against corrupt government contractors. ? Ken Nolan writes about how to size up a contingency

case, making sure you don't grab a tiger by the tail. ? Laurin Mills discusses the chances we must take in

depositions, facing off across the table in a battle of wits with somebody who may be no friend of our client.

? Mark Anderson argues that we need to look at settle? ment options early and often, before the dice come to rest at trial.

? Gregory O'Reilly and Allan Sincox discuss the ulti? mate gamble that can make or break a criminal case: DNA testing.

? Barbara Kagan appeals to busy litigators everywhere to

accept the personal and business risks of taking on pro bono cases, which can offer payoffs well worth the time and trouble.

As these articles show, the fact that you face risk every? where you turn can be either paralyzing or liberating. The truth of the matter is, if you are too afraid to lose, you can? not win.

Gary L. Sasso

Litigation Fall 2001 Volume 28 Number 1

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