November 20, 2010
Issue spotting versus problem solving
In the "New Normal" column of the online ABA Journal blog, columnist Paul Lippe notes that law school's emphasis on "issue spotting" trains lawyers to find reasons why the client's proposal won't work rather than help her find ways that it will. Essentially, the client wants your help to move forward, not give her a litany of reasons why she can't.
One of the common critiques of law school and lawyers is the proclivity to “issue-spotting,” to identify problems in a proposed course of action.
In theory, issue-spotting helps sharpen understanding of a problem and application of a solution. In reality, it’s often a passive-aggressive way to express skepticism that can be pretty destructive and divorced from responsibility (“it could be risky to get in the elevator because it might fall out of the sky”…oooo-k, how often do these things actually fall, and are you going to walk to the 43rd floor?”).
. . . .
In today’s New Normal, inertia through issue spotting is a recipe for disaster. Global competition and technology are transforming the landscape for clients and lawyers – identifying low probability reasons why a particular action may not work is much less useful than obtaining a deep understanding of the problem and proffering solutions tailored to it.
You can read the rest of Mr. Lippe's column here.
A Resource for Teaching Excellence
A helpful resource the Essays on Teaching Excellence published by POD, the Professional and Organizational Network in Higher Education. Though they are aimed at the undergraduate level, I have found them valuable, especially since the authors back up their advice with research. Here is the description:
Essays on Teaching Excellence
Editor: Elizabeth O'Connor Chandler, University of Chicago, firstname.lastname@example.org
Essays on Teaching Excellence is a series of eight short and succinct scholarly essays published by the POD Network on an annual basis, free of charge. The essays present innovative viewpoints on college and university instruction. Written in concise and non-technical language, and supported by research, the essays seek to assist instructors in reflecting upon and refining their practice of teaching to achieve the results they seek - students learning to the best of their abilities.
The essays may be shared or distributed in print or electronic form as long as the POD Network and each essay's author are cited.
Click on the year below to view each volume's contents. You can download the whole series or click on a title to download the individual essay.
November 19, 2010
Scholarship alert: "Access to justice starts in the library: the importance of competent research skills and free/low-cost research resources"
This article, by St. Thomas Law Librarian and Legal Research Instructor Deborah K. Hackerson, can be found at 62 Me. L. Rev. 473 (2010). From the introduction:
The ability to perform competent and cost-effective legal research is one of the most important skills that law students should master to be prepared to practice law. Research skills are important when the law student or lawyer performs pro bono or public service work and needs to be especially mindful of saving costs. There can be no access to justice for any client if the attorney cannot adequately prepare to represent the client and if the client does not have access to the information needed to understand his or her case. The desire to ensure access to justice provides a strong impetus for examining the importance of these practical skills.
Access to justice is an important aspirational goal for everyone in the legal profession. Lawyers, however, cannot provide access to justice without adequate practical skills and the tools necessary to complete their work. Lawyers and law students provide many hours of public and pro bono service every year. With the current state of the economy and the record jobless rate, it is likely that the need for low cost and free legal services will continue to grow. In order to carry out the mission of continuing to provide services to those in need, law students must prepare learn the practical skills needed to serve their clients, including those who cannot pay.
The first part of this Article examines the need to support lawyers and law students in the development of competent and cost-effective legal research skills so that they enter the legal profession ready to represent all types of clients. This includes having the skills necessary to perform pro bono and public service work. It is imperative that law schools continue to develop a curriculum to increase these practical skills for lawyers of today. The second part of the Article discusses the importance of the continued development of free and low-cost resources that will support law students, lawyers, and the general public in performing cost-effective legal research. Access to justice includes access to information. It is an important mission for the legal profession to ensure that everyone has access to justice through continued access to information.
New "skills" scholarship: "When will law school change?"
This article is authored by a Jones Day partner who is a member of that firm's lawyer training committee and author of the book "The Path to Parnership: A Guide for Junior Associates." The full cite is Steven C. Bennett, When will law school change? 89 Neb. L. Rev. 87 (2010).
From the introduction:
Law schools, to paraphrase the fictional Professor Kingsfield, take students who know next to nothing about law, and teach them to "think like lawyers." But a rough understanding of the methods of legal analysis does not necessarily equip budding lawyers with all the skills required for success in practice. Most importantly, although the ability to interpret rules of ethical conduct is one important element of the law school curriculum, mere familiarity with the rules of professional responsibility cannot impart sensitivity to the ethical issues that can arise in practice (much less ensure that new lawyers will place a high priority on maintaining essential standards of professional behavior). The recent Carnegie Report, an independent external review of law school teaching practices which compared legal education with other forms of professional training, emphasized the need to impart basic skills to lawyers before they enter practice, but also expressed concerns about producing lawyers who lack a commitment to professional responsibility. These concerns, moreover, have appeared in a series of prior studies and reports.
The question thus arises anew: how can law schools produce "good" lawyers? Recent scholarship and experiments at several law schools suggest an array of potential solutions (big and small), several of which are outlined here. The bigger underlying question, however, addressed at the conclusion of this Article, is: when will law school change (on a broader basis)? When will law schools incorporate, more fully, the kinds of changes that can ensure that new lawyers approach their careers equipped with a spirit of professionalism, competence and integrity, and with a genuine drive to demonstrate ethical behavior in all of their actions as attorneys? No magic solutions appear, but at least one essential component of change must involve demand, by the profession itself, for increased focus on ethics and professionalism. As this Article concludes, the recent economic down-turn may provide a significant catalyst for such change.
Lincoln the Lawyer
The Marquette Law Review ( vol. 93, No. 4) had published an excellent symposium on "Legacies of Lincoln." Of particular interest to the legal skills audience are two articles: Mark Steiner's "Abraham Lincoln and the Rule of Law Books" and Joseph Ranney's "In Praise of Whig Lawyering: A Commentary on Abraham Lincoln as Lawyer--and Politician." Another interesting article is Julie Oseid's "The Power of Brevity: Adopt Abraham Lincoln's Habits, 6 J. ALWD 28 (2009).
Professor Laurence Tribe does his part to support the "Plain English" movement
The online ABA Journal blog is reporting that Professor Laurence Tribe has resigned from DOJ due to recurring symptoms from a benign brain tumor. In an interview with the New York Times, Professor Tribe recounted his frustration at not being able to accomplish more during his time at DOJ due to financial constraints and the difficulty of getting legislation passed. Instead, Tribe adopted a pragmatic style, trying to get done what he could under the circumstances. As he told the NYT, one of his accomplishments, which he characterized "as a 'trivial' yet memorable improvement" was changing a sign at a Los Angeles courthouse that read “unrepresented pro se litigants” to the plain-English “people without lawyers.”
Thanks, Professor Tribe. Every contribution, big or small, to the "Plain English" movement counts.
November 18, 2010
Friday fun: Do you like Full Metal Jacket and other Kubrick films?
Then you'll probably love this analysis by a self-taught British film buff who, writing under the pseudonym "Rob Ager," maintains a website devoted to interpreting subliminal messages in several popular films including those by Stanley Kubrick. With respect to Full Metal Jacket, check out the video clip below in which "Mr. Ager" finds a parallel between the hellish interior shots at Hue City and the barracks of Parris Island. He also concludes (beginning at about minute 6.40) that each member of the "Lusthog" unit in Vietnam represents an alter-ego of the pre-brainwashed Marine recruits from bootcamp (i.e. Lawrence = Animal Mother, Snowball = Eightball, Cowboy = Joker, etc.).
Ok, that's just one of the films Mr. Ager tackles with his very insightful analysis. Check out his complete list of film reviews and see if one doesn't open your eyes a bit about a favorite film (it's also a nice distraction right before the weekend).
Beware the dangers of videotaping your class.
There have been a series of incidents recently that illustrate the risks that classroom tapes, usually made by professors for their students' benefit, can wreak havoc if they fall into the wrong hands and wind up on YouTube. As noted in this story from Inside Higher Ed:
While the cases differ widely, faculty members at Cornell University, Louisiana State University at Baton Rouge and the University of Central Florida have all seen pieces of their lectures go viral in the last several weeks. Taken collectively, the carefully edited clips play up familiar stereotypes about faculty: there’s the quick-tempered bore (Cornell), the liberal indoctrinator (Louisiana State) and the lazy test-recycler (Central Florida)
The most egregious incident occurred at Louisiana State where it was later determined that a person not even enrolled in the professor's class surreptitiously taped a lecture, edited the tape to distort the professor's views, and then posted it on YouTube in order to attack the professor's supposed liberal leanings. I have also previously blogged about a University of Florida business professor who was fired after a classroom tape appeared on YouTube showing him apparently stoned (by coincidence, a law student of mine happened to be in that professor's class on the day in question and confirmed to me that he was drunk, not stoned).
If it isn't already part of your syllabus, consider adding a provision that prohibits the videotaping of class under any circumstances. It might not prevent what happened to the Louisiana State prof (if someone is intent on portraying you in a false light, they'll find a way to do it) but at least it may give you some recourse.
Last chance to get your free copy of "Typography for Lawyers" (but only if you're a legal writing prof)
Time is running out to obtain your free copy of "Typography for Lawyers," a resource the Law Librarian Blog calls "essential" to any skills prof's bookshelf. The catch is you must be a legal writing professor to get a free copy from the publisher. Click here for more details. According to the publisher, almost 200 of you have already responded. The offer expires at midnight, November 30, 2010.
New scholarship: Empirical analysis of how the relationship between clients and law firms is evolving
Posted by the Legal Scholarship Blog, this working paper is available for download here. The article is entitled "Hiring Teams from Rivals: Theory and Evidence on the Evolving Relationships in the Corporate Legal Market" ahd is authored by ProfessorMichele DeStefano Beardslee of Miami and Professors Ashish Nanda, David B. Wilkins and John C. Coates all of Harvard. From the abstract:
How are relationships between clients and law firms in the corporate legal market evolving, and why? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006-2007, we extend theory from economics, management science, and sociology, and find that - contrary to standard depictions of client-provider relationships in corporate legal services, which suggest that hiring decisions have become akin to spot contracting based on individual lawyers’ skills - we find (1) large companies have relationships with a small number, typically ten to twenty, of preferred providers; (2) formally limited in duration and subject to renegotiation, these relationships nevertheless continue to be enduring; and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within the preferred providers, allocating work to these subunits at rival firms over time, and following “star” lawyers from firm to firm more often if they move as part of a team. The combination of long-term relationships and subunit rivalry provides law firms in these relationships with steady aggregate work flows and allows companies to keep cost pressure on firms while preserving relationship-specific capital, quality assurance, and soft forms of legal capacity insurance - that is, a soft guarantee that their law firms will stand ready to provide legal services when and as needed by their clients. Apart from their descriptive value, our findings have normative implications for law firms, corporate departments, law firms, and law schools.
If law firms eliminate brick and mortar libraries, do they still need flesh and blood librarians?
That's the question raised by the "New Normal" column in today's online ABA Journal Blog. My short answer is: Yes, of course they do because librarians as information management experts are critical to the mission of any law office. Fortunately, that's the same conclusion reached by Patrick Lamb, the New Normal's co-columnist.
A librarian is somebody who oversees a library, a 'place set apart to contain books, periodicals or other material for reading, viewing, listening or studying.' In other words, a librarian oversees something not needed in law firms—all that 'stuff' is contained in the box on everyone’s desk.
But all is not lost for professional librarians. Indeed, if they play their cards right, the future may be brighter for them than most. In a presentation at the recent ACC Annual Meeting, Google’s General Counsel Kent Walker relayed this startling piece of information: in the entire history of humankind, until 2003, man had created a total of 5 exabytes of information. Today, we create 5 exabytes of information every two days. And the pace of information creation is accelerating.
What does that mean for law librarians? They are information and research professionals in an era when finding essential information is more important than ever. Associates, who do most of the research in law firms, are not research or information professionals. They may become good at analyzing information, but that is somewhat of a crapshoot, and they certainly are not trained at finding the 'stuff’' that we frequently need every day. When you live in a value-fee world, someone who finds the right information efficiently is really valuable.
Amen, brother. You can read the remaining commentary here.
Everyday Nautical Metaphors
Perhaps almost all metaphors eventually break loose from their moorings. From the archives of Mental Floss, here are nine colloquialisms (clichés?) that derive from the high seas: clean bill of health, in the doldrums, three sheets to the wind, filibuster, chew the fat, slush fund, by and large, groggy, and under the weather.
A Chat with the "Shadow Scholar"
On November 16, we posted a link to a first-person essay by the “shadow scholar” who makes a living writing papers for students ( "Who writes the Papers that Students Plagiarize?"). Here, from the Chronicle of Higher Education, is the transcript of an interview with the shadow scholar.
The High Overemployment Rate
Over at the Harvard Business Review’s blog, there’s an interesting piece on overemployment. Yes, the unemployment rate is high, but businesses (including law firms) are piling more work on existing employees, who become overemployed. Here’s a paragraph from the blog:
"But growth — albeit anemic growth — has returned. Yet companies are not hiring. And those employees, many of them burnt out from the last two years, are being asked to take on more and more. In those growing companies where hiring is still frozen, what's the cost to the individual? And what's the toll on the organization?"
November 17, 2010
Cornell business prof reacts angrily to loud yawn in class
Although it's being reported as a "freak-out," I don't think this business computing professor's reaction was per se over-the-top. But check out the video and decide for yourself.
According to Inside Higher Ed: "A spokeswoman for Cornell said that 'we're sorry to see a class disrupted and we're looking into what actually happened,' and that the university could say nothing more for now."
By the way, what is it about "business" classes these days that's provoking so much inappropriate behavior?
You can read more about the "Cornell yawn" here courtesy of Inside Higher Ed.
A list of law library websites with helpful (and free) research guides for students
This list was compiled by legal writing professor Ursula Weigold of U. Wisconsin.
For links to online legal research guides and databases, click here to access U.C. Berkeley's law library site.
For more links to online legal research guides, click here to access the Cornell Law Library site.
For general and subject-specific research guides, (including tips on citation form, how to find law journal articles and how to conduct effective web searching) click here to access the Drake Law Library site.
For guides to research specialized legal topics like copyright and administrative law, click here for the Emory Law library site which features include research methodologies, practical tips and related links to source materials on a variety of topics in the legal field.
Finally, for legal research tools arranged by state and foreign country, click here to check out the cool world map created by the Washburn Law Library.
The Lawyers of the Future: How To Educate Them Today
A useful service blogs perform is pointing people to great articles that appear in limited audience publications and extending the range of those articles.
Here's an example:
Ann Parks has written a thought-provoking article that makes an excellent introduction to some of the issues now being discussed in educating new lawyers for the future. The article is called "The Lawyers of the Future: How To Educate Them Today" and it appears in the Georgetown Law Alumni Magazine's Fall/Winter 2010 issue.
As Georgetown Dean William Treanor days in the article, “The time is right for dramatic change, and a lot of forces are really converging now."
Parks offers multiple views on the big issues, providing a good overview and way to get up-to-speed on the current discussion. There are lots of great insights and ideas in this article.
The core of the article comes in a section called: "Training Lawyers: Whose Job Is It, Anyway?" where I find the money quote: "The key question that students as well as faculty members and administrators are asking these days is this: if law firms are changing, what does it mean for legal education?"
The article ends with a good discussion of some the initiatives Georgetown is working on.
A Late-Comer's First Post, with a Question for the Group
I'm Tom Mighell, one of the bloggers here at the Legal Skills Prof blog. Sorry I'm so late to the party - it looks like a lot of great content has been posted! I want my first post to start a discussion amongst my blogging colleagues as well as our readers, but before that I'd like to introduce myself.
As you can see from the sidebar to the left, I'm not a law professor - I'm a consultant with Contoural, a company that provides records management and electronic discovery services to companies. But that's not why I'm here - I am also passionately interested in the area of law practice management. I've been a member of the ABA's Law Practice Management Section since 2003, and I'm pleased to be serving as the Chair of the Section in 2011-2012. For the past seven years I've worked to help lawyers of all types learn more about the business of the practice of law - I'll be talking more about that in an upcoming post. More specifically, I'm a technology nut, and helping lawyers learn how technology can help them run more efficient and profitable practices is one of my great pleasures.
Now that you know something more about me, I'd like to open my first post here with a question to the group, and to any readers out there. Here at the Legal Skills Prof Blog, what exactly do we mean by "legal skills?" I would certainly expect that legal writing, research and advocacy are considered legal skills. As I'll be arguing here frequently, I truly believe that the area of practice management is also a "legal skill" - knowing how to market your practice, use technology, the ins and outs of finance, and general management skills can make the difference between a successful practice and a flop.
Many of the posts published so far deal with certain types of legal skills, but some do not. So I'm thinking that the answer to my question is not as simple as I once thought. What say my co-authors to the question, "what do you consider fair game when we talk about legal skills?" Even more important, what do you, the reader, want to see us talk about here on the blog? I'll be posting my thoughts here in future posts, but I thought I'd see if I could kick off my first post with a discussion. Let the conversation begin.....
Vive la cuisine française!
Relying on an attenuated connection to legal skills (specifically, the occasional reliance on culinary examples like lasagna [login required] as analogies in teaching legal-writing skills), I call your attention to an item in The New York Times noting that the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage of Humanity, a UNESCO agency, “enshrined the ‘gastronomic meal of the French’ as part of the ‘intangible cultural heritage of humanity,’ alongside Azerbaijani carpet weaving, an annual Belgian ‘bread and fire feast,’ and Turkey’s Kirkpinar oil wrestling festival.”
Scott Sayre, "Unesco Hails French Food, Oil Wrestling and Flamenco," N.Y. Times, Nov. 17, 2010.
"Move It Along, Counsel"
With these words, a judge or a master politely lets the lawyer know that the case is dragging and the lawyer needs to move through the evidence more quickly.
In “New Matter” (Oct. 2010), the publication of the Chester County (PA) Bar Association, James P. MacElree, President Judge of Pennsylvania’s 15th Judicial District states, “You can expect to have strict time limits imposed and enforced by the Judge or Maser for any of the following:
Using 40 words when 10 will do.
Answering questions with spin instead of directly.
Calling repetitive or cumulative witnesses.
Asking the same questions multiple times,
Certifying the case for one day when you know it will be longer.
Filing certificates of trial readiness when you are not really ready.
Failing to mark your exhibits in advance of trial.
Failing to properly prepare your witnesses.
Failing to supply the statute or case that supports your position.
Beating a dead horse until the rotted flesh is stripped from its bar bleached bones.”
Here is an 8 page report from the University of North Carolina School of Government on the authority of courts to impose time limits on trials and suggestions on how to impose limits in state courts so as to avoid reversal on appeal. (It is generally agreed that federal courts have this authority.)