Tuesday, December 5, 2006
Over at the Empirical Legal Studies blog, Indiana's Bill Henderson offers an interesting and promising post, Where Did High-End Plaintiffs' Lawyers Go To Law School? Interesting because his very preliminary findings get past demographic trivia and elitist assumptions to pose some good questions, and promising because it is a long-term research project he foreshadows there. Says Bill: "I would like to parse out how social forces and individual skills and personality traits (e.g., risk adversion, extroversion, affect recognition) impact the career trajectories of young lawyers. The plaintiffs' bar might be a good place to start." We are looking forward to it. So is Paul Caron, who posted on Tax Prof here about Bill's stats, and asks whether similar data exist for tax practice. Bill is certainly correct in implying that, in terms of sociology and economics, it is time to stop presenting (or studying) plaintiffs' lawyers as a single entity or only ambulance chasers. [Alan Childress]
Michael Hatfield (Texas Tech, left) has posted Fear, Legal Indeterminacy, and the American Lawyering Culture (10 Lewis & Clark L. Rev. 511 (2006))on SSRN. Here is the abstract:
Although the essay focuses on Jay S. Bybee's (now infamous and withdrawn) Office of Legal Counsel memorandum regarding torture, the essay is not a substantive analysis of the torture-related legal issues. The essay instead poses the question: How could a competent lawyer prepare a memorandum so at odds with the overwhelming consensus? Adopting a measured sympathy with Bybee (rather than alleging bad faith or political pressure), the essay suggests the lawyer's reasoning was distorted as a result of his legitimate fears. Drawing on the work of the late Mennonite theologian-ethicist John Howard Yoder (Notre Dame), the essay suggests that Bybee's legal reasoning was distorted in the same way that fear tends to distort moral reasoning. The essay also suggests that one of the unintended consequences of the prevalence of realist-inspired legal theory in the law school classroom (with its focus on the indeterminacy of law) may be that law professors have legitimated a “hired gun” image of the profession. The essay concludes that the fear factor and the hired gun mentality make it quite likely that many other American lawyers in the same role as Bybee would have produced the same memorandum as he did (though they might not admit it now, of course). Thus, the problem is not a legal one nor is it Jay S. Bybee - it is the American lawyering culture that takes the law as an obstacle to be overcome rather than as a guide to the moral good.
December 5, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
In our continuous search for the most self-evident or undeniable matter for serious bar discipline (in this case, five years' suspension in NY), we present this headline and story today from New York Law Journal (via Law.Com): "Associate Suspended For Offering Information to Opposing Party For a Fee." To be more specific, attorney "offered for a $2,000 fee to provide [to opponent tenant in a landlord dispute] information about how certain audiotape evidence would be used." (Gone are the nostalgic days of the bar fee schedules where such amounts are fixed for competing lawyers.) The tenant turned him over to his law firm (duh). In any event, this was apparently not also an improper communication with an opposing party who is represented, as the opponent tenant seems to have been on his own, and was originally willing to pay $20k to have the associate make the case go away--but the attorney did not have that kind of pull and counteroffered with the 2k leak. Decision here. [Alan Childress]
Monday, December 4, 2006
Bruce MacEwen, posting here on his blog Adam Smith, Esq., asks that question in applying studies from the Harvard Business School on practice groups in hospitals and their adapting to new technologies. Noting that the most immediate analogy for law firms is to financial services firms, he posits that there are also aspects of legal practice and structure that are more like the independent and "allergic-to-data" doctors working together.
Say the HBS studies: "Most people think that the skills of the individual surgeon are the most important driver of success, but we found that what really mattered was how the entire surgical team was managed and how it prepared for the adoption" of new techniques. MacEwen finds some wisdom in that, as well, for law firms and "practice group management." All the more, I add, since lawyers are doctors too. [Alan Childress]
Posted by Alan Childress
Ethan Michelson (Indiana-Bloomington, Soc'y & East Asia depts. [right, bottom--with Xiaoxia and Rachel on his back in ascending order]) has posted an empirical study of the emerging legal profession in China and the effect of embedded socialist institutions on it. It is in SSRN L&S: Legal Prof., and called "Lawyers, Political Embeddedness, and Institutional Continuity in China's Transition from Socialism." Previously we posted on his earlier study of client screening. The newer paper's abstract:
This paper develops the concept of political embeddedness and demonstrates its explanatory utility through an empirical analysis of Chinese lawyers, their professional troubles, and their coping strategies. Political embeddedness, defined broadly as bureaucratic, instrumental, or affective ties to the state and its actors, helps Chinese lawyers survive their everyday difficulties, such as routine administrative interference, official rent-seeking, and police harassment and intimidation. Evidence from a first-of-its-kind 25-city survey of Chinese lawyers suggests -- in a twist of irony -- that lawyers' dependence on key gatekeepers and decision-makers in government agencies, including judges, prosecutors, and police, has reinforced the importance of political embeddedness as a basis for professional survival and success inside the very institutions that have been attributed with obviating the need for the mobilization of political connections. Chinese lawyers tell us at least as much about the enduring legacy of socialist institutions as they do about incipient capitalist and rule of law institutions.
December 4, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
Here's the ABA's "e-news for members" story on, and link to a media kit about (with the full report and draft itself), the Oct. 31 final proposed modifications to the Model Judicial Code. [Current Code as of 2004 is here.] One change would be clearer rules on accepting free seminar sponsorships and the like from potential litigants and others, along with reporting or prohibiting other perqs [Jeff noted before the hunting-trip phenomenon]. The proposal also seeks to insulate judges better from political pressures to make promises about cases, and to define campaign rules more sharply.
Another proposed change, at least in emphasis, we commented on earlier: the new Code has moved "appearance of impropriety" into text as a specific and enforceable rule, not so much a guideline for judges internally to ponder [see the first Pirates of the Caribbean movie for the mere-guidelines difference]. This final draft is not yet adopted and will be considered at the ABA's mid-year meeting in Miami, Feb. 7-13, 2007. [Alan Childress]
An old professional friend (the lawyer for another side in a deal many years ago) switched firms because his broke up. He commented: "That type of event does not seem to bring out the best in people."
Character is like skiing. It's easy to hold your form when the hill is gentle and smooth; it's much tougher when it's steep, icy, and full of moguls.
by Mike Frisch
In a recent case, the Court of Appeals of Maryland denied admission to an applicant who had passed the bar examination under unusual circumstances. The applicant had graduated from Emory with a 3.7 grade point average. Unhappy with his LSAT score, he sought testing and was diagnosed with a specific process learning disability (DSM-IV diagnosis 315.9). Law school accommodated with double time and computer use (including grammar and spell check).
The Maryland Board of Law Examiners consulted its own expert and denied accommodations as "[the applicant] performs well above the average person on virtually every dimension of cognitive and academic functioning. There is no evidence of significant impairment or a substantial limitation in learning." The expert did not alter the recommendation in response to further submissions from the applicant.
Four days before the bar exam, the applicant filed a petition in Circuit Court to enjoin the Bar Examiners from denying accommodations. The Circuit Court Judge ordered injunctive relief and the Bar Examiners complied and provided the accommodations. Applicant passed but the Bar Examiners recommended against admission "until an adjudication on the merits of his entitlement to accommodations..."
The Court of Appeals held that the Bar Examiners and the Court have exclusive jurisdiction over admission and regulation. The Circuit Court had no authority to decide ADA or other admissions issues. Despite passing, admission denied.
The Sunday Business section of the New York Times has a column of sound bites on page two called "The Chatter."
One quote yesterday was from Jennifer S. Granick, right, executive director of the Center for Internet and Society at Stanford Law School, on why she believes it is not trespassing if you use somebody else's wi-fi access to make a free mobile phone call: "People say that you can't go inside somebody's house; but I say, you can sit outside and listen to the radio."
There must be more nuance than I'm getting here.
As I predicted here yesterday morning, Florida edged out Michigan (wolverine, ironically not native to Michigan, shown below right) for the right to meet Ohio State in the national championship game. Because the computer rankings had it a tie, and because Michigan hadn't played since November 18, the decision turned on human voters, and, no doubt, their reaction to the argumentation on behalf of the contending schools.
One of the chief advocates for Florida was its young coach, Urban Meyer, who has jawboned his team's case for the last several weeks. Wolverine coach Lloyd Carr, on the other hand, refused to show his wolverine-like claws (left, costumery available at ForeverGeek.com). While I have no doubt that total Michigan utility would have been greater with Michigan once again playing Ohio State, but on a neutral field (a possibility that provoked Ohio State coach into not voting in the polls; if he voted for the weaker team he'd rather play, Florida, he would have violated the unspoken rule that you support your own conference teams), I nevertheless take an inexplicable satisfaction in commentary such as that from Dan Wetzel at Yahoo Sports:
And so Michigan and its coach go down winners even in this most disappointing of times. This program, Bo Schembechler's program, is supposed to be about just what Carr demonstrated, right or wrong, smart or stupid, hopelessly old school or not.
* * *
Whether you agree with his old-school, bedrock-value approach or not, whether you think he blew it by not sticking up for his team, you have to appreciate that when everything was on the line, he walked the walk.
When a shot at a national title was in the balance, Lloyd Carr, the old Michigan man, proved that even in this hyper-competitive era, even in this senseless system, the values he always expounds – pride, respect, humility – still can take precedent over all.
Sunday, December 3, 2006
Jeff spoke of end-of-course paranoia involving review session questions and the threat of needing a calculator. As a corollary, I created many more questions than I cared to by having one exam be partly open book. That makes it partly closed book. The limitation is no commercial sources nor outlines entirely prepared by others (e.g., SBA or law review). For some reason this year it sounded ambiguous and led to countless questions in class clarifying what was in and out. Either those questions continued through one more email, or the endless class discussion on it drove one student's tongue into his cheek; I got this email just now from him: "Professor, Are we allowed to bring in commercially made/distributed plushies? I ask this because I tend to bring in a stuffed entity for good luck, but since the only work I did in getting him was paying for him..." Of course, I advised him to tattoo the bottom creatively with a Sharpie -- both because it makes the work partly his own and allows its use, and because that is my mea culpa to the tattoo gemeinschaft. On the other hand, instrumentalist and consequentialist tats as opposed to artistic ones may not appease and I may still be considered old. [Alan Childress]
Posted by Jeff Lipshaw
It's exam season in law school, and the perennial struggle over "just tell me the rules" versus whatever it is we law professors teach about the relationship between a rule and its application is repeating itself in review sessions everywhere.
But as much as law students like rules, and social scientists like theories capable of prediction and algorithms and models, I have harped here (and elsewhere) on the inherent paradox (or antinomy) of judgment. As elucidated by Kant, the issue with judgment is that simultaneously we understand the conclusion is ours alone (and people can differ), but at the same time we ascribe universality to the conclusion. (This is one of the themes of the Critique of Judgment - we look at a painting, and at the same time, (a) know it's just a matter of taste, but (b) ascribe some objective standard of bad, good, better, worse, and best to the art.) If there were an algorithm for judgment, we wouldn't prize it in individuals the way we do, and we'd be letting our computers rather than our lawyers negotiate our deals.
If you skip the front of the Sunday Business section of the New York Times today (I leave the Morgenson-beating to Larry Ribstein), and proceed to the back page, you find an interview with Carl F. Schwartz, NYC lawyer extraordinaire, under the unlikely title "Finding a True Passion in Real Estate Law." (I'm waiting for the article about finding true passion in ERISA law, but for the time being we have to rely on Professor Secunda, right, over at sister blog Workplace Law Prof Blog for strange and fascinating obsession with top hat plans and the PBGC.) I want to highlight three counter-algorithmic data points from this article:
1. Mr. Schwartz's comment on transactional lawyering: "The most important thing is that the deal gets signed and closed. . . . Sometimes that means the lawyering is less than perfect. Instead of making 200 comments on a contract, you're going to make 50 or 75 and have the judgment to say, 'This is important, and this isn't.'"
2. The role of emotion in negotiations. Mr. Schwartz noted a negotiation (over management rights to several landmark NYC buildings, including the Empire State Building) in which the side seeking the management rights tried to change the tenor of the emotional dispute by sending the "ceding" party a set of lifetime family passes to the ESB observatory.
3. The role of inter-personal chemistry. Schwartz plays bass guitar in a rock band in which one of his clients plays keyboards. Says the client, "There are a large number of lawyers and law firms in town where you can go to get excellent technical execution of a deal. . . . But what's really important in the relationship of a client and a lawyer is the chemistry. The fact that we share some sensibilities adds to that."
That from the WSJ Law Blog's Peter Lattman, here. Not a really monumental hiring 'moment,' I assume, at the halfway mark of the administration's current term. But the headline gives me the opportunity to congratulate GW-grad, Lovettsville co-resident, former Marine, and all around good-guy Chris Oprison for his new position as Associate Counsel to the President. If I get a parking ticket near the White House, or have a relative in Armenia needing a visa...? [Alan Childress]
An Update to the earlier post on HALT, legal malpractice, and lawyer insurance: Interesting article Dec. 3 from Law.com here on the practice of legal malpractice law. It has advice (for all) to get malpractice coverage (in Oregon it is required), and includes info on recent trends in claims stats and who-sues-whom (e.g., rise in insurers suing), lawyer-defendants making matters worse, and the fun of this speciality to the profiled Georgia lawyer, Frank Beltran. Beltran tells young lawyers to expect 3 to 5 malpractice and bar claims in their life. He disagrees that insurance would be prohibitively expensive for solo practitioners and very small firms but thinks they think that--and wrongly avoid the issue. He is working with the state bar to try to pass a disclosure requirement (like that discussed in our HALT post above).
As to a lawyer suing co-counsel for malpractice, see Mike's post here. [Alan Childress]
Any lawyer or law student looking for training in advocacy - the gathering of data and the making of argument - need only look at the media for the briefs (mostly amici) pro-Florida and pro-Michigan backers are now filing in connection with the upcoming Bowl Championship Series game in Glendale.
I bleed Maize and Blue, but even I can't see how Florida can be denied a shot at Ohio State. And if I were Ohio State, I would rather be facing Florida than Michigan on a neutral field.