November 7, 2006
CLE Webcast 11/30 on Ethics Issues for In-House Counsel, Law Firm Counsel, and Outside Corporate Counsel
Here is information from West on a 3.25-hour webcast program Nov. 30 on ethics and liability issues affecting corporate counsel including counsel to law firms. It is called Lawyer Liability: Personal Exposure and Ethical Responsibilities of Inside and Outside Counsel: A Town Hall Event. Topics include SOX compliance, selective waiver of privilege, liability for investigators a la H-P, and also advanced waiver of conflicts of interest [see LegalEthicsForum for an update on that]. The program is part of a lot of West CLE offerings from this site. CAUTION: Some of the information West has on one site lists the course as starting at 1:00 pm EST but another site says 2:00 EST. You'd better check with West. [Alan Childress]
The Hollywood Effect, Part 2
Posted by Alan Childress
Last week, I posted Nancy Rapoport's abstract on Hollywood's effect on the behavior of young lawyers, as well as our comments after it on movie role models like Atticus Finch and Whiplash Willie. Jeff's weekly Top Ten list includes a SSRN-posted article by Ruth Anne Robbins (Rutgers-Camden, right ) called "Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story using the Characters and Paradigm of the Archetypal Hero's Journey." It is really about the flip-side to Professor Rapoport's piece because it is more about how Hollywood images affect judges in processing and deciding trials and appeals. It is more in the nature of a skills lesson, beyond the usual storytelling how-to advice. Its abstract:
This article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. It proposes the thesis that because people respond - instinctively and intuitively - to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients' goals by subtly portraying their individual clients as heroes on a particular life path. This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth.
Sounds interesting, though one must assume that she does not specifically recommend arguing to the panel of Judges Posner, Easterbrook, and Woods that your client is the Good Witch Glenda and therefore deserves to win. (Actually, to be fair, one of the reasons Posner's opinions are often interesting and much-quoted in casebooks may be that his writing style -- especially in laying out the facts -- can be at times more like Hollywood screenwriting than was Cardozo's style; his writing may be consistent with this rhetorical strategy [Posner seems to set up the players as archetypes too].) At any rate, her paper follows a 2001 article coauthored with Brian Foley, on a skills-training model based on novels, "Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections." This was recently noted and made downloadable on the Idealawg blog by lawyer Stephanie West Allen, and is linked here in full text format from a different website (and here is its SSRN site).
November 7, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Top Ten - Legal Ethics & Professional Responsibility - Nov. 6
According to Answers.com, Modern Rock Tracks is Billboard Magazine's Top 40 Chart for alternative rock. It has been around since 1988, and in all that time only two songs, "What's the Frequency, Kenneth," by R.E.M. and Dani California by the Red Hot Chili Peppers have debuted at number one. That puts them in the same elite class as our number one this week, the new paper by Jack Balkin (below right)
and Sanford Levinson, and the subject of yesterday's paean. Larry Solum (left) had even more erudite reaction (assuming my reaction was erudite at all) to the paper over at Legal Theory Blog. (I have no real reason to post Larry's picture, other than (1) I already posted pictures of Balkin and Levinson; (2) this picture of Larry is SO much better than the one that used to appear on the USD page; (3) he looks MAHVELOUS; and (4) to show that what you see on the right - the Legal Theory
Blog logo - is NOT a picture of Larry.)
Here are the papers with the most downloads in the Legal Ethics & Professional Responsibility Journal, as reported by SSRN for the last sixty days.
1 Law and the Humanities: An Uneasy Relationship, Jack M. Balkin, Sanford Levinson, Yale University - Law School, University of Texas Law School
2 The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, Orly Lobel, University of San Diego School of Law.
3 Therapeutic Jurisprudence and Readiness for Rehabilitation David B. Wexler, University of Arizona - James E. Rogers College of Law
4 Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment David McGowan, University of San Diego - School of Law
5 Options Backdating, Tax Shelters, and Corporate Culture Victor Fleischer, University of Colorado at Boulder - School of Law
6 Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story Using the Paradigm of the Archetypal Hero's Journey, Ruth Anne Robbins, Rutgers School of Law - Camden.
7 Southwest Airlines: Hedging and Shareholder Value Michael R. Ingrassia, Georgetown Law Center, Victor Fleischer, University of Colorado School of Law
8 Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies Jacob Jacoby, New York University - Department of Marketing
9 The Public Responsibility of Structured Finance Lawyers Steven L. Schwarcz, Duke University School of Law
10 Plato, Hegel, and Democracy, Thom Brooks, University of Newcastle upon Tyne
November 7, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
November 6, 2006
In Praise and Support of Balkin & Levinson on Law & the Humanities
Posted by Jeff Lipshaw
In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.
No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.
Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.
To borrow Larry Solum's technique and phrase: Highly recommended! I want to focus here on the thesis that academic law's prescriptivism, despite inter-disciplinary encroachment, still results in "the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals." Here is another passage from the article:
A few years ago, one of us (Balkin) had a conversation with Austin Sarat [right], a key figure in the Law and Society movement and, along with Balkin, one of the founders of the Association for the Study of Law, Culture, and the Humanities. Given Balkin's undoubted interest in the study of law as a cultural phenomenon, Sarat asked, why didn't he join Sarat and found a Ph.D. program in law that would escape the constricted agendas that professional schools of law generally impose? Balkin gave his answer in a single word: "Xeroxing," by which he meant that because he worked at a richly endowed professional school, he got all his xeroxing for free, while Sarat still had to purchase copy cards. The tax professor down the hall, Balkin explained, subsidized his scholarship on law and post-structuralism. A law department that cut itself off from the goal of professional education would soon find itself as well financially as the average art history or music department, which is to say, it would not be very well supported at all.
I have some recent personal experience in precisely the "cashing out" Balkin and Levinson describe, and, ironically, in connection with a forthcoming piece in Law, Culture, and the Humanities, edited by Austin Sarat. The article explores, jurisprudentially and philosophically, the duties of a promisee in hypotheticals where the promisee has a indisputable legal right to the benefits of the contract, but, arguably, ought to have a moral obligation not to accept those benefits. I was describing the thesis to another law professor, who wanted very much to understand what policy proposal I was advancing to judges faced with this situation. My response was that I was not really advancing a policy proposal to judges at all; indeed, the core of the hypothetical is that, more likely than not, the judge's own morality or sense of justice will be trumped by the explicit terms of the contract. Instead, I intended it to be precisely what it was: an attempt by a lawyer to break out of the usual way lawyers look at a problem, and to explore the wholly inconsequential and unpragmatic difference between legal rules and the mystery of moral judgment.
But the urge to the consequential dies hard. Even I find myself justifying the usefulness of the piece by appealing to a need (or desire) to expose business lawyers to normative models other than those proposed by Langdell, or Posner, or Kaplow and Shavell, or Simon, or Williamson. I say, in justification of the way I have chosen to cash out the argument, the issue to me is not the destination, but the struggle in which I believe we ought to be engaged along the way.
November 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
By Mike Frisch
In my haste to post the comment regarding the Herbst recommendation, I made an error. The proposed sanction includes a six month suspension followed by two years of probation. Not as bleak as the picture I painted in my earlier post. The opinion can be obtained from the Board on Professional Responsibility--202-638-4290.
Become An Ethics Fellow
Posted by Alan Childress
This announcement was forwarded by the AALS Section on Professional Responsibility (thanks, Paula Heider and Randy Lee, Widener), on ethics fellowships and a training program at a Georgia lodge:
APPLICATIONS ARE NOW BEING ACCEPTED TO BE A 2006 FELLOW OF THE NATIONAL INSTITUTE FOR TEACHING ETHICS AND PROFESSIONALISM (NIFTEP).
APPROVED NIFTEP FELLOWS WILL ATTEND THE 2006 WORKSHOP ON TEACHING ETHICS AND PROFESSIONALISM TO TAKE PLACE December 15 -17, 2006. FELLOWSHIPS ARE FULLY FUNDED BUT ARE VERY LIMITED IN NUMBER. APPLY ON-LINE BY November 13. DETAILS [are linked here].
The National Institute for Teaching Ethics and Professionalism (NIFTEP) was established in 2005 as a consortium of the following five nationally-recognized centers on ethics and professionalism:
The Louis Stein Center for Law & Ethics at Fordham University, The Mercer University School of Law Center for Legal Ethics and Professionalism, The Nelson Mullins Riley & Scarborough Center on Professionalism at the University of South Carolina, The Stanford Center on Ethics, The W. Lee Burge Endowment for Law & Ethics at Georgia State University.
Excusable Theft: Part Two
by Mike Frisch
The assault on integrity in the District of Columbia bar discipline system continues unabated with a hearing committee report (not available in electronic format) in In re Herbst, Bar Docket No. 290-01 (HC Eight July 12, 2006). The lawyer had accepted a personal injury case and then forgot about it, entrusting the matter to a staff member who settled the case without the client's authority and embezzled the proceeds. When the lawyer discovered this two years later (the client had obtained new counsel who had filed suit), he restored the settlement funds but again allowed the balance to dip below the amount owed (we call this misappropriation or lawyer theft). The hearing committee found serious incompetence, failure to communicate with the clients, failure to supervise employees and negligent misappropriation, but decided that a real sanction was not called for.
The reason? The lawyer suffers from a mild case of attention deficit hyperactivity disorder and had other "stressors" in his life. The sanction? Probation! The chair of the panel that authored this report has been rewarded by promotion to the Board on Professional Responsibility. Presumably the next mitigation case in D.C. will find that the theft was understandable and excusable because the lawyer really needed the money.
Note: Maryland gave the lawyer a reprimand in the same case.
[Update: See a correction here.]
Legal Fee Audits, Document Retention Programs, Tired Solutions, and Blockbusting for Lawyers: Part I in a Continuing Series About Creativity in Problem-Solving
Posted by Jeff Lipshaw
The Money and Investing section of the Weekend Edition of the Wall Street Journal (Saturday/Sunday, Nov. 4-5) has a piece on corporate audits of the bills that outside law firms submit for services rendered. This is but one example of the kind of fee-based offer of service you get as the general counsel to a big company. Document retention (euphemistic for document destruction) programs were another (a quick Google search shows you can buy one from Hunton & Williams, as an example and the ABA has materials out on them as well.) We would regularly get high-powered sales pitches from vendors who specialized in flyspecking bills (as to the audits) and the law firms themselves (as to the document retention). It was always a classic case of data against intuition, because it always seemed to me a real question whether there was any payoff, in either case, to what was sure to be a time and cost intensive activity.
This is too big a topic to handle in one blog post, but I want to lay some groundwork first, and then in later posts come back to the relationship between business law, business lawyers, and the theory and pedagogy of creative solutions to complex problems. Not to hide where I stand (because it may be a while before I get back to it), there's nothing wrong, per se, with legal audits or document retention programs. I merely think that they are tired and uncreative solutions to problems.* I have been thinking about the theoretical issues for a long time; nascent ideas about pedagogy are the result of a conversation I had yesterday about the courses you might build into a cutting edge business law curriculum, one of which might be an advanced seminar in creative problem solving techniques.
Let's start with some basics in organization and management learning and come back in subsequent posts to the professional (and I will argue, theoretical and pedagogical) issues for lawyers. This segment is devoted to what is known over in the business schools as "lean production" or "lean enterprise," a subset of which is the exercise in reduction of process variability (and therefore defect reduction) called "six sigma." These terms are, in no small part, the upshot of a global revolution in thinking and action that dwarfs relatively "easy" problems like law school curriculum reform. Over the last thirty years or so, an entire world (one in which most lawyers do not traffic) looked at the accepted and traditional ways of doing things in human organizations, and realized they were outdated. Talk about paradigm shift. If one has been in that world (and law firms generally don't count), then reading an article about auditing law firm bills as the solution to a problem is like having someone's fingernails run across a blackboard. (The closest I am aware of any legal scholars tapping into this area is the Virginia Law Review article by Margaret Blair (Vanderbilt, left) and Lynn Stout (UCLA, right): A Team Production Theory of Corporate Law.)
The first lesson, a description of the lean organization, and a couple relatively simple examples of the techniques, comes below the fold.
The point of the lean organization (or lean production) was to do far more with far less, and to do it better, and often to do it without sophisticated technology. The opposite of lean production is mass production of the kind developed in the U.S. auto industry by Henry Ford and Alfred Sloan. Mass production accumulated huge amounts of factory floor space, on-site inventory, human effort and tooling investment. In contrast, lean production looks at everything with a fresh eye and says "what in that process is actually unnecessary to the end product? How can we get from start to finish faster?" It is the power of the mind applied to the world. And not just the mind of an omnipotent Planner (think The Truman Show), but the collective minds of everyone involved in the process.
We need to focus here on two concepts: "batch" versus "flow" production, and the power of any worker to stop the assembly process. This is oversimplified, but pretty accurate. Imagine that you are making a widget that requires four steps of machining. First, the metal stock has to be cut. Second, it has to be trimmed on another machine. Third, a screw thread must be cut on a screw machine. Fourth, it then needs to be de-burred and polished.
In mass production, the factory would have had four large rooms. Each room would have been dedicated to a step of the process. Huge quantities of steel rods would come into the first cutting room. The cutters would cut, and amass a huge batch of cut pieces. Someone would transport bins of the cut pieces in the trimming room, where the batch would be trimmed. Then someone would transport the bins of trimmed metal stock to the screw machine room. And so on, until it got to the finished inventory room.
There are at least two problems presented by this system, one of which relates to quality, and one of which relates to speed. First, if you run a large batch of metal cutting, but there is a consistent defect (the machine settings were off just a couple microns), you certainly don't discover it until you have finished (and probably wasted) a whole batch. Now it's possible you might rework them, but that is costly, and may not be effective. And then you've wasted time as well.
Second, it's going to be a long time before you see a finished widget. Work-in-progress just sits in bins waiting to be processed. Imagine that it takes a day to get a big enough batch made to make it worth while to push the bins to the next room. The "cycle time" to make a widget is as much as four days - that's how long it takes a piece of metal to go into the factory on one end and to come out on the other end as a widget.
The solution to the problem begins with what is called "flow" manufacturing. Rather than have four rooms, each dedicated to a particular part of the process, and holding twenty of the respective cutting, trimming, screw, and de-burring machines, you set up twenty "flow cells" in which a piece goes immediately from cutting to trimming to screw threading to de-burring. (This means, by the way, that the work is not as monotonous, because the people in these independent cells are now accountable for the complete production of a widget from start to finish.) You know immediately if there has been a problem cutting, because the cut piece won't fit on the trimming machine (this is called "poka-yoke" in Japanese; it is also referred to as "idiot-proofing" or "fool-proofing" the process). And because you are empowered to stop the production line if there is a defect, you immediately find the cause, correct it, and avoid making a batch of bad stuff. And to top it off, the "cycle time" from starting with a piece of metal to a finished widget goes from four days to about thirty minutes.
For all you lawyers in the audience, think about a huge printing, collating, and stapling project. The same principles apply. If you were assembling a brief that needed to be filed in court in twenty minutes, with copies to be distributed to thirty parties, would you use a batch method or a flow method? Or think about the process of dictating a memo. (Does anybody still do that? When I started out as a lawyer, the cutting edge word processing was just moving from the IBM Selectric typewriter to what were known as MAG cards.) If you do your own typing on a computer, you eliminate the process of having a secretary interpret your dictating, having him make mistakes in the typing, reviewing the first draft, making more changes, etc. etc. etc. And the cycle time from start to finish is faster. And, uh oh, you don't need a secretary! (The ultimate in this was a really old school fellow who would write the memo or brief out longhand on a legal pad, then read it to his secretary, who would then take shorthand of the dictation, and go back to her typewriter to type the draft.)
Finally, and we begin to come back to the point about auditing legal bills, we begin to recognize that inspection of the finished products is far more important in batch processing than flow processing. Why? Because in flow processing, we have (at least in theory) already been addressing the root cause of the problems that make the defects, rather than letting the defects occur, and then trying to inspect our way to finding them.
See the analogy to auditing a legal bill yet? More to follow. In the meantime, the classic work on this subject is The Machine That Changed the World, by James Womack, Daniel Jones, and Daniel Roos, the story of a five year MIT study in the 1980s of the global automotive industry, and the tectonic change from mass production to lean production.
*Let me make it clear that my skepticism about expensive document retention programs does not indicate a lack of seriousness about potential evidence spoliation. Indeed, one of my problems was I could never figure out how to undertake the program without a risk of spoliation of evidence somewhere in some case. Most big companies have some cases going on somewhere. On the theory that it's always the cover-up that is worse than whatever happened to create the litigation (meritorious or not), I decided that I did not want our innocent decision to put a program into place subject to second-guessing by a judge on an ex post standard, in the context of an adversarial proceeding, and without an ironclad safe harbor. I will talk more specifically about these programs in later posts.
November 5, 2006
They Pay My Brother to Go Gamble in Vega$
Although it is often said that the law professor career is "life's loophole"--and it must really feel that way this weekend with the crowd at the DC Marriott Wardham Park bartering for the gig--I do note that many blog posters from the actual gig have done a good job of dispelling the myth that the only worktime is class hours, the summers are "off," and there is no stress. Nonetheless, there is no doubt that on paper it looks like something for which it is worth navigating the mutiple elevator banks of that monstruous Marriott and answering for the umpteenth time your ideal top three courses. (Belated hint from last year's chair of appointments: it's, surprisingly, not "uh, Jurisprudence I, Jurisprudence II, and a capped- enrollment seminar on Jurgen Habermas Meets Michel Foucault." Learn to utter and love the words "Secured Transactions.")
Still, even as a law prof, I have managed to be one of three brothers with longer formal hours than the other two, making them appear to have found two bigger loopholes. Rory Childress--happy birthday today!, and I am glad it is you!!--is actually a "jet pilot." That must look cool on a business card, but anyway by federal law he has to take off days of breaks between his trips to Aruba and Rio. [The photo on left is actually Dad, since I don't have a PDF of Rory handy, but this is how Rory will look in 25 years.] My job is great but there is no law or union telling me to take it easier. His downside must be dealing with a 767 full of white-knuckled customers who don't believe in safety statistics, and now fear snakes too. (I believe so specifically in statistics that I don't fear flying but I am scared witless to drive to the airport.) Rory really does work hard and is the most risk-averse person I know--you, as freight, will be relieved to know.
And then Mark Childress beats even that gig by being "a novelist," with no boss whatsoever; not even a business card. Of course that means he works harder than anyone, but on paper this loophole looks enviable. He chafes at the extended family reunions when everyone tells him how easy his life is, but is kind enough not to reply, "You stare at a blank screen for 14 hours a day and see if it's all sweetness and light." In part he does not say that because of the use of faux-literary cliche; he is good at his job, and I don't pretend to be. His sixth novel is called One Mississippi (though I believe the working title was "Author Shamelessly Exploits Family Embarrassments and Secrets, Part Six"). It is funny and and clever and jarring and close-to-home for all of us who survived high school, but he does not need my endorsement (here's the Washington Post's) or marketing (Little Brown just paid him to go sign them in Germany and Switzerland), and that is not why I am writing.
I am writing to say that I am specifically envious that some fool editor at the L.A. Times thought it would be cute to pay Mark to go to Las Vegas to spend and gamble the readers' collective quarters. Here is the product of that independent contract, called "His Mission: Blow $1000," in today's paper. If you think it does not have a law-and-society element to it fitting to this blog, then you did not get past the part where Toni Braxton spanked him or my poor grandmother got government cheese hand-outs ('cause she did not feel exploited enough this year), down to the part on Vegas' anti-panhandling law. That's the aspect that makes me able to post it here for your Sunday amusement without worrying that Jeff and Mike will tell me I've gone off topic (a conversation and fret, you may have figured out, we have never really had). But what's a blog if you can't occasionally wish one brother a happy birthday and link to the other's LATimes scam?