Thursday, July 30, 2015

Umberto Eco on Using Rhetorical Figures

Now, we either use rhetorical figures effectively, or we

do not use them at all. If we use them it is because we pre-

sume our reader is capable of catching them, and because we

believe that we will appear more incisive and convincing. In

this case, we should not be ashamed of them, and we should

not explain them. If we think that our reader is an idiot, we

should not use rhetorical figures, but if we use them and

feel the need to explain them, we are essentially calling the

reader an idiot. In turn, he will take revenge by calling

the author an idiot.

From “How to Write a Thesis (here, 5.1)


July 30, 2015 | Permalink | Comments (0)

NPR asks: "Should law schools pay if students don't get jobs?"

This is a short podcast from NPR's Marketplace Report featuring commentary from Steve Harper of Belly of the Beast fame. Here's a brief synopsis from Marketplace:

Law school doesn't look like a great deal for many students. Tuition keeps going up, which means bigger loans to pay off.

But the job market for lawyers remains weak. At lower-tier schools, less than half of students end up with jobs as attorneys, according to a recent report from an American Bar Association task force.

Steven Harper, author of "The Lawyer Bubble," argues that those schools should be held accountable. The ABA task force proposes less-dramatic measures, like giving students more information about their prospective debt load.


July 30, 2015 | Permalink | Comments (0)

Wednesday, July 29, 2015

Teaching as Modeling Behavior for Students

In a recent Vitae article, David Gooblar writes:

In 1961, a Stanford University psychologist named Albert Bandura conducted a soon-to-be famous experiment. He had young children watch adults interact with an inflatable “Bobo” doll in a toy-strewn room. Half of the children observed an adult acting aggressively toward the doll: pummeling, hitting, attacking the defenseless toy with mallets. The other half watched an adult playing nicely with Bobo, as the children’s parents might want them to play with other kids. All of the children were then left alone in the room with the doll. The resulting behavior will surprise no one today: Children who watched the aggressive adult were themselves much more likely to be aggressive; the other children played nice.

 The results were part of a new idea that Bandura helped pioneer called “social-learning theory. It revolutionized our way of understanding cognition by showing that learning does not entirely depend on the threat of punishment or the promise of reward. Instead, social-learning theory posits that we learn to behave in large part by watching others.

You can read more here. Most of the suggestions amount to making yourself more open and thus more vulnerable. In my professional life, I try to be rather open and very reasonable, probably in the "warm, fuzzy" category; however, my students also have to deal with my insistence on rigor in my courses. I have no idea whether my style affects how students will shape their future professional personalities. Here’s hoping.


July 29, 2015 | Permalink | Comments (0)

Baltimore and Boston law schools are the latest to launch incubator programs

From the National Law Journal:

Schools Collaborate on Baltimore Legal Practice Incubator


The University of Maryland Francis King Carey School of Law and the University of Baltimore School of Law are launching an incubator to help recent graduates launch solo practices while serving low-income clients.


The schools developed the project with the help of the Maryland State Bar Association, which is providing $50,000. Administrators hope to have the incubator running by November.


“The incubator offers a great opportunity for recent graduates to gain experience while providing affordable legal services to people in the state,” said Maryland Law dean Donald Tobin. The bar’s Special Committee on Law School Graduates spent two years planning the program, he said.


Earlier this month, Boston College Law School, Boston University School of Law and Northeastern University School of Law announced plans for a joint incubator in early 2016, partially funded by an American Bar Association grant. More than 30 law schools host incubators or similar legal residency programs, according to the ABA.


In Baltimore, each school will contribute three graduates who have passed the Maryland bar exam for the inaugural cohort. The participants will spend 12 to 18 months getting their practices off the ground. Tobin said the schools would look for graduates who aspire to solo or small-firm practices and have an entrepreneurial bent.


The law schools will provide office space, telephones and equipment, as well as malpractice insurance and bar dues. The graduates will get access to Westlaw, which provides free services to legal incubators.


. . . . 

Continue reading here.


July 29, 2015 | Permalink | Comments (0)

Tuesday, July 28, 2015

The Art of Business Lawyering

Beyond Gilson: The Art of Business Lawyering by Praveen Kosuri.


Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients.

Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

July 28, 2015 | Permalink | Comments (0)

Stable Median LSATs, but Declining Bar Passage Rates

How do we reconcile these apparently contradictory facts? In his recent article, Legal Education at a Crossroads: A Response to Measuring Merit: The Shultz-Zedeck Research on Law School Admissions, Adam Lamparello explains that the law school’s median LSAT (note: median, not average) can stay the same, but the LSAT for the bottom 25 percent can drop. The students with lower LSATs can reduce the bar passage rate:

This article suggests that, regardless of the factors causing the recent decline in bar results, bar pass rates will soon drop significantly due to the four-year decline in LSAT scores at the 25th percentile (and below). In other words, the median LSAT score of a law school can remain unchanged, but the bar pass rate of that school can plummet if the 25th percentile drops. That is precisely what has happened in recent years, and it should stop – now.

You can read more here.  A big challenge for the ASP faculty.


July 28, 2015 | Permalink | Comments (0)

Monday, July 27, 2015

Writing Essay Exams to Succeed in Law School

John Dernbach has published the fourth edition of his valuable book, Writing Essay Exams to Succeed in Law School: Not Just to Survive (Wolters Kluwer).

To my mind, it is the best book on the subject. I have recommended earlier editions to my students. I particularly appreciate the way it breaks down the process into manageable pieces and illustrates with ample examples from illustrative law school essay answers.


July 27, 2015 | Permalink | Comments (0)

"Teaching Business Associations with Group Oral Midterms: Benefits and Drawbacks"

This is a (not quite) new article by Professor Joan Heminway (Tennessee) posted on SSRN here back in January (hat tip to the TaxProf blog). From the abstract:

I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword...or a bugaboo...or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall of 2011, I began offering an oral midterm examination to students in my Business Associations course as an additional assessment tool. This Article explains why I started (and have continued) down that path, how I designed that examination, and what I have learned by using this assessment method for three years. Although some (probably most) will not want to do in their Business Associations courses exactly what I have done in mine (as to the midterm examination or any other aspects of the course described in this Article), I am providing this information to give readers ideas for, or courage to make positive changes in, their own teaching (for a course on business associations or anything else).


July 27, 2015 | Permalink | Comments (0)

Sunday, July 26, 2015

More From Deborah Jo Merritt: Can We Close the Racial Grade Gap?

Last week, Deborah Jo Merritt argued that there is a white bias in law school grading.  This week, she considers how to close the racial grade gap.  (here)

I have argued for several years that the best way to help minority students is to employ better teaching methods based on general legal education research.  (e.g., here)  Professor Merritt agrees: "Many of the ideas offered by Steele, Darling-Hammond, Holmquist, and Fruehwald rest on principles of good teaching."

She cautions that helping minority students improve will not be easy: "These approaches, as well as others mentioned in the articles at the beginning of this post, are worth trying in the classroom. I think, though, that it will be much harder than most white professors imagine to remove the clouds of stereotype threat."

She discusses an example of this difficulty: "White students showed little variation in how they responded to three types of feedback: (1) 'unbuffered' feedback in which they received mostly critical comments and corrections on their essays; (2) 'positive' feedback in which these comments were prefaced by a paragraph of the 'overall nice job; kind; and (3) 'wise' feedback in which the professor noted that he had applied a particularly high standard to the essay but believed the student could meet that standard through revision. All three of these feedback forms provided similar motivation to white students.

For Black students, however, the type of feedback generated significantly different results. The unbuffered feedback produced mistrust and little motivation; the Black students believed that the reader had stereotyped them as poor performers. Feedback prefaced by a positive comment was better; Black students were more likely to trust the feedback and feel motivated to improve. The wise feedback, however, was best of all. When students felt that a professor recognized their individual talent, and was willing to help them develop that talent, they responded enthusiastically.

Some researchers refer to this as the “Stand and Deliver” phenomenon, named for the story of a high school teacher who inspired his underprivileged Mexican-American students to learn calculus. Professors who set high standards, while conveying sincere signals that minority students can meet those standards, can close enormous achievement gaps."

Professor Merritt is correct that law professors need to think about their students' psychological makeups as part of their teaching approach.  I think this applies to all students who suffer from fixed mindsets.  (See Carol S. Dweck, Mindset: The New Psychology of Success (2006))  We can no longer rely on teaching methods developed in the nineteenth century for a specific group of students.  Instead, we need to apply the discoveries of general education research to legal education.

(Scott Fruehwald)

July 26, 2015 | Permalink | Comments (0)

Free Internet Legal Research

Seasoned librarians Wanita Scroggs and Sally Waters have published Free Internet Legal Research (Vanderplas). Because law students have free access to powerful internet research tools, they likely do not realize that in future years, electronic research prove expensive. Then, they will fully appreciate this book. But even in law school, students should realize that relying solely on a (currently) free search engine may prevent them from accessing all relevant sources.

Here is an interview with the authors.


July 26, 2015 | Permalink | Comments (0)

Best Small Cities to Work In.Best Metro Cities to Work In.

Here is one survey’s report on the best small cities to work in.

Here is another survey report on the best metropolitan cities to work in.

Thnx to JD Journal


July 26, 2015 | Permalink | Comments (0)

Kaplan survey finds pre-law students most concerned about earning good grades

Kaplan Test Prep services periodically surveys pre-law students to better understand their concerns and aspirations in making the decision to attend law school (here and here).  For this year's survey, Kaplan asked 466 pre-law students to identify their biggest worries.  The results show that students today care most about earning good grades, maintaining a healthy schoolwork-life balance and avoiding too much debt - in that order. From Kaplan's press release:

Kaplan Test Prep Survey: Pre-Law Students’ Top Concerns About Their First Year of Law School are Academic and Financial — But Not Social


Pre-law students say that their biggest concerns about their first year of law school are academic and financial, according to a June 2015 Kaplan Test Prep survey of 466 pre-law students*. As they put together their law school applications at a time when the number of LSAT® takers is noticeably on the rise, here’s what prospective students are thinking about most when it comes to their first year (1L) experience:


Achieving High Grades: Understanding how academically intense the 1L experience can be, nearly 9 out of 10 (89%) pre-law students surveyed said they are concerned about achieving high grades.


Maintaining a Healthy Work/Life Balance: Students’ first year is considered to be the most rigorous of the three-years long law school experience because of the many exams and reading. With that in mind, 82% of surveyed students said maintaining a healthy work/life balance was a concern.


Debt: With tuition at many law schools topping $40,000 a year and the job market for lawyers still struggling to return to healthy levels, more than three-quarters (76%) of pre-law students surveyed said that taking on large debt is a concern.


Securing a Summer Internship: Securing a summer internship, which can lead to post-graduation jobs, is an extremely competitive process, which may explain why 73% are concerned about this aspect of being a 1L. The critical piece to secure a summer internship: high grades.


Fitting In: Whether due to confidencein their social skills or indifference to being socially accepted, just 38% of pre-law students said that fitting in socially was a first year concern.


“Your first year of law school is undoubtedly your most important. It’s the start of what will hopefully be a rewarding three year experience, and when you earn the grades that are most determinate in launching a successful legal career,” said Jeff Thomas, executive director of pre-law programs, Kaplan Test Prep. “The fact that pre-law students are concerned about achieving everything from high grades to covering tuition is an appropriate and natural response to the real challenges that await them.”


*The e-survey was conducted in June 2015 of 466 pre-law law students who prepared for the LSAT with Kaplan Test Prep. The LSAT is a trademark of the Law School Admission Council, which is not affiliated with this survey or Kaplan Test Prep.

Hat tip to JDJournal.


July 26, 2015 | Permalink | Comments (0)

Saturday, July 25, 2015

Working in and Leaving a Large Law Firm

Of my students who start out in a large law firm, few of them stay put. For the most part, they want a better work/life balance. In this long article, Harrison Barnes offers these facts: 

  • The majority of attorneys who join large law firms out of law school may never make as much money (adjusted for inflation) ever again.
  •  Most attorneys who join large law firms out of law school never work at firms as prestigious ever again. Attorneys generally move a few times (to large law firms) before finally stepping out of a large law firm into something smaller or different. 
  • Only half of the attorneys who join large law firms out of law school are likely to be practicing law in 10 years, while over 85% of the attorneys who join small law firms are likely to still be practicing in 10 years.
  •  The majority of attorneys who join large law firms out of law school will never work on matters for as large and important clients ever again.

 The article continues to give advice on how to succeed in a large firm. However, I doubt that after reading the advice, many young lawyers will decide to pursue that path.

You can read more here.


July 25, 2015 | Permalink | Comments (0)

The Emergence and Development of a Law of Torts

I know that this article is a little off our usual subject matter, but I found it fascinating.

The Emergence and Development of a Law of Torts by G. Edward White.


This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.
P.S. I had the pleasure to take Professor White's legal history course when I was at UVA.  If you want more, Professor White has written a wonderful book on the history of torts law.

July 25, 2015 | Permalink | Comments (0)

Tech tip of the day: Add a two minute delay to sending emails

This is a great tech tip from the Harvard Business Review blog that most of us should probably implement. It involves programming your email account to wait two minutes before each message is sent. It's a great fail safe measure to prevent those emails we regret as soon as they're sent and the typos (and omitted attachments) we don't catch until it's too late. HBR's columnist Katie Smith Milway provides instructions for both Outlook and Gmail users (the former is a bit more complicated than Google's "undo send" feature which is described here). 

As Ms. Milway points out, the downside to changing your email settings to interpose a mandatory delay is that there are times when it can be quite frustrating to not be able to circulate documents or participate in email discussions in real time. But given the potential disasters - including ones that can end a career - averted by automatically delaying the sending of emails written in haste, dealing with occasional frustration seems like a pretty good trade-off.

Check out Ms. Milway's email tech tips here at the HBR blog.


July 25, 2015 | Permalink | Comments (0)

Friday, July 24, 2015

Why Do Disciplined Lawyers Continue to Get into Trouble?

Here is one answer from Attorney at Work. It argues that the disciplinary action never gets to the root causes of the problem:

I notice that once a disciplinary matter comes to its conclusion, attorneys tend to remain angry and frustrated at the underlying situation. They are still upset with the complaining witness. They never believe the bar has treated them fairly (often a justified feeling). They are angry about whatever sanction has been imposed. This anger and frustration causes the lawyer to act as though the discipline case was entirely unfair, and thus the underlying situation an isolated one-off.

Closely related to anger and frustration, most lawyers are still in denial afterward, too. They still deny they did anything wrong, deny there is a problem to be addressed and deny they need to change their ways.

You can read more here.


July 24, 2015 | Permalink | Comments (0)

More on Indiana Tech's offer of full scholarships to students who stay

As we blogged a few days ago, in light of the ABA's decision to deny accreditation to Indiana Tech, the school is offering full scholarships to all students who remain while it reapplies. Though administrators expressed confidence that the ABA will act favorably on this new application, the Wall Street Journal Law Blog points out that the school's website informs current and prospective students that it makes no promises about the outcome of the accreditation process. More specifically, the website states:

The Law School is not currently approved by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association and makes no representation to any applicant that it will receive approval from the Council before the graduation of any matriculating student.

So students will get a free ride (they must still pay room and board) but it is not without risk. Check out our previous post here and the WSJLB follow up story here.


July 24, 2015 | Permalink | Comments (1)

Thursday, July 23, 2015

Gerry Spence's Classic "Bird" Closing Argument

Once there was a wise old man and a smart-aleck boy. The boy was driven

by a single desire-to expose the wise old man as a fool. The smart aleck had

a plan. He had captured a small and fragile bird in the forest. With the bird

cupped in his hands so that the old man could not see it, the boy's scheme

was to approach the old man and ask, "Old man, what do I have in my

hand?" To which the wise old man would reply, "You have a bird, my son."

Then the boy would ask, "Old man, is the bird alive or dead?" If the old

man replied that it was dead, the boy would open his hands and allow the

bird to fly off into the forest. But if the old man replied that the bird was

alive, the boy would crush the bird inside his cupped hands until it was dead.

Then the boy would open his hands and say, "See, the bird is dead!"

And so, the smart-aleck boy went to the old man, and he said, as planned,

"Old man, what do I have in my hands?"

The old man, as predicted, replied, "You have a bird, my son."

"Old man," the boy then said with disdain, "is the bird alive or is it


Whereupon the old man looked at the boy with his kindly old eyes and

replied, "The bird is in your hands, my son."

It is then that I turn to the jury and say, "And so, too, ladies and

gentlemen, the life of my client is in yours."

 With this closing story, the jury understands that it alone has the responsibility for the verdict. The possible fate of the bird encourages it to treat the lawyer’s client as it would the fragile creature in the boy’s hands.

 For another powerful pathos closing argument by Gerry Spence, please click  here.


July 23, 2015 | Permalink | Comments (0)

Steven Harper Condemns ABA Task Force Final Report on the Financing of Legal Education

Last year, the ABA created a task force to consider the problems concerning the financing of legal education.  The task force issued its report on June 17.  (here)  Law school critic, Stephen Harper, has urged the House of Delegates to reject the report.  (here)

Harper writes, "If the Delegates are interested in rehabilitating the ABA’s credibility and restoring public confidence in the profession on an issue of critical importance to the country, they could take this simple step: reject the Task Force Report. That’s right. Rather than giving the typical rubber stamp of approval amid flowery speeches thanking Task Force members for their time and effort in generating a hollow ABA statement summarizing the obvious, the House of Delegates could just say no."

He continues, "Let’s state the problem more bluntly: Marginal law schools are relying on exploding student debt to produce revenue streams that keep them alive. They get away with it because federal student loans come without school-specific accountability for graduates’ dismal employment outcomes. Schools have no financial skin in the game."

He notes that "the new Task Force didn’t pursue this obvious market dysfunction. Instead, its Final Report offers superficial fixes: better debt counseling for students, better disclosure forms from the Department of Education, more dissemination of how schools spend their money, and continued experimentation with law curriculum. They ignore the core financial accountability problem, rather than confronting and addressing it."

He points out that "The chairman of the 2014-2015 Task Force was Dennis W. Archer, former mayor of Detroit, former Michigan Supreme Court justice, and past president of the ABA. Did the ABA think no one would notice that Archer also chairs of the national policy board of Infilaw — a private equity-owned consortium of three for-profit law schools — Arizona Summit, Charlotte, and Florida Coastal.

The Infilaw schools feed on the market dysfunction that the current system for funding legal education creates. The job market for law graduates from schools such as Infilaw’s remains dismal. But even in the face of their graduates’ poor full-time long-term JD-required employment results, Infilaw’s schools increased enrollment and have become leaders in creating debt for their students.

Archer wasn’t the only problematic appointment to the 2014-2015 Task Force. Another member, Christopher Chapman, is president and CEO of Access Group — the collective voice of 197 ABA-accredited law schools."

Harper emphases that "The fact that, as one 2014-2015 Task Force witness said, legal education may be the 'canary in the coal mine' on issues relating to student debt and financing higher education generally is no excuse for the profession to refrain from offering potential solutions."

He recommends that "For that reason, at its upcoming August 3-4 meeting in Chicago, the ABA House of Delegates could reject the Task Force Report. It could then reconstitute the Task Force membership with individuals willing to deliver the tough message that the profession needs. It could direct the newly constituted group to develop meaningful proposals that tie law student loan availability to individual law school outcomes."

He concludes: "In a single vote rejecting the 2014-2015 Task Force Report on the Financing of Legal Education, the House of Delegates could match those lofty words with action."

I should add that the financing of legal education has had the greatest negative impact on the poor and minorities, groups that law schools want to help.

(Scott Fruehwald)

July 23, 2015 | Permalink | Comments (0)

Wednesday, July 22, 2015

The Tools of Argument: How the Best Lawyers Think, Argue, and Win

One of our correspondents, David Gibbs, writes to recommend The Tools of Argument: How the Best Lawyers Think, Argue, and Win by Joel P. Trachtman.  Professor Gibbs states, "I wanted to bring to your attention a recent book 'How the Best Lawyers Think, Argue, and Win' by Joel P. Trachtman. Joel is a professor at the Fletcher School of Law and Diplomacy and a lawyer who once practiced. His book is a thoughtful and well-written discussion of how to be persuasive as a lawyer or in other areas. Joel outlines the arguments down with a straightforward and incisive approach that will help students, young lawyers and those who have practiced and want to sharpen their skills."

You can find out more about the book here.

From a review:

"An easy-to-follow guide to argument techniques and theory.
In this manual, Trachtman moves legal argument out of the classroom and shares it with a general audience. Although the text is firmly grounded in the author’s legal background—the first chapter, for example, explores what the law is and why it matters—it also draws many parallels to other professional contexts. The author also often uses point-counterpoint examples to illustrate the techniques he describes. Overall, readers engaged in legal argument or persuasive writing and speaking will get the most value from this book.​"

   -- Kirkus Reviews

(Scott Fruehwald)

July 22, 2015 | Permalink | Comments (0)