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Hearsay

Winter 2017, Volume XIX. No. 2

Note from the Editors 

By Blair Harrington and Kyle Willems

Welcome to the Winter 2017 edition of Hearsay, a quarterly newsletter dedicated to publishing the work of Minnesota’s new lawyers.  We are pleased to be able to bring you articles several interesting topics and recent developments in the law. 

If you are interested in submitting to a future edition of Hearsay, please contact Blair Harrington, or Kyle Willems.



Arguing at the Appellate Level: Observations of a Judicial Clerk

By Emily R. Bodtke

My first job as a law school graduate was clerking for the United States Court of Appeals for the Sixth Circuit. In many ways, an appellate clerkship is a quiet and solitary position. But that sense of isolation evaporated whenever the week of oral arguments arrived. Oral argument brought the attorneys and judges into one room to hash out competing arguments and challenging legal issues. As a clerk, I repeatedly observed this interchange and how it affected the judicial decision-making process. Gradually, I came to appreciate that the best appellate attorneys accomplished two goals at oral argument: (1) they helped the judges reach a well-reasoned decision, and (2) they firmly advocated for their client. These two goals do not always easily coexist, but both are indispensable for effective appellate advocacy.

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Unlikely Sources for Curing the Foundational Objection Blues


By Seth I. Harrington

I. A Hypothetical or Perhaps Not-So-Hypothetical Scenario

It’s your first time questioning a witness. You’re not nervous, but confident; after all, you’ve spent hours prepping, drafting questions, and brainstorming with the partner-in-charge. You know exactly what you need to do and how to do it. You breeze through the background questions, maybe even leading your witness a bit. But that’s okay. It’s now time to delve into questioning going to the heart of your case. As you ask your next question, you can feel the tides of the case changing in your favor. And then opposing counsel hits you with, “objection, foundation.” That’s one punch. The court rules, “sustained.” That’s another punch. And you’re –figuratively – on the floor.
But you get back up. After all, you’re a professional, dammit. You rack your brain for the lack of foundation. You pinpoint where you went wrong. You proceed with questioning but are soon hit with the two same punches: “Objection, foundation.” “Sustained.” 

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