Legal Skills Prof Blog

Pleaded versus pled?

From the Volokh Conspiracy:

English, probably like all human languages, is full of internal structures of logic and order (which I’ll call “regularities” — observations that “conform[] to a trend [or] pattern”). It’s critical for people to understand these regularities in order to learn the language (which is to say to learn actual usage). They also help shape how the language changes: New terms and changes to old terms almost always fit some aspect of those regularities. The regularities are thus helpful predictors of usage, for instance when you’re not familiar enough with the term to know the usage, and can’t easily look it up (if you’ve never heard the verb suborn before, you can still make a good guess that its past tense is suborned), or when the term is too new for there to be a large pool of usage to consult.

The trouble is that those regularities often conflict with each other, or have one-off exceptions that are fully standard, notwithstanding their departure from the regularity. Regularities can’t tell you which of two rival regularities to turn to, nor can tell you when an exception to the regularities should be used. How do we resolve these conflicts? Precisely by looking at standard usage.

. . . .

[P]leaded vs. pled. There is an important and commonly followed regularity in English: Most verbs form the past tense by adding –ed. But pled didn’t develop just because someone invented a completely unusual irregularity; language rarely changes that way.

Rather, there is also a rival regularity: The other verbs that end with the –leed sound, when produced by the letters –lead and –leed — lead, mislead, and bleed — form the past tense by changing the –eed sound to an –ed sound. And some (but not all) other verbs that end with the –eed sound, when produced by –ead and –eed, operate similarly: read, breed, feed, and speed (but not bead, knead, deed, heed, need, or seed). I assume that plead acquired the pled form by analogy to lead, bleed, and the like — by following one regularity rather than another, and not just by entirely departing from “internal structures of logic or order.”

So which regularity to follow? The only answer is usage. Usage gives us one answer for lead and read. It gives us another for bead and need. For plead, modern legal usage (as reflected in court opinions) reports that both pleaded and pled are standard.

I don’t think there’s any external vantage from which you can fault established usage as “incorrect” (as opposed to, say, ambiguous or confusing, which is a different criticism). Correctness is, in my view, defined by usage. But in any event, unless you are prepared to radically redesign the English language — and somehow get hundreds of millions of speakers to go along with you — you can’t define correctness by adherence to “internal structure of logic or order,” because in our actual current English language there are many rival structures, as well as exceptions to structures.

Read the rest here.

Hat tip to Above the Law.

(jbl).

Law School and Bar Collaborating to Teach Professionalism

How can a bar association help law students learn about professionalism? In the November 2010 issue of the Michigan Bar Journal, Amy Timmer, Associate Dean of Students and Professionalism at the Thomas M. Cooley Law School, tells us what her law school and state bar association have done. Here is her summary:

 In the area of professionalism,

Cooley has partnered with the

State Bar on:

 

• Character and fitness in our new-student

orientations and in our personal and professional

responsibility classes

 

• Mentoring law students and a study of

that mentoring project undertaken by

Oakland University and supported by

a grant from the Michigan State Bar

Foundation

 

• The first and all subsequent professionalism

orientations for law students

 

• Hosting Attorney Discipline Board panel

hearings at Cooley and meetings of the

Attorney Grievance Commission

 

• Supporting the Richard Steinberg Memorial

Treatment Fund and the services

provided by the State Bar Lawyers and

Judges Assistance Program through proceeds

from our Grand Rapids campus’s

Barrister’s Ball

 

• Holding some sessions of the State Bar

Annual Meeting at Cooley

 

• A wellness initiative

 

We also partner with county and special purpose

bar associations on mentoring, pro

bono, and professionalism opportunities, and

find that these partnerships result in rich

experiences for our students.

 (ljs)

Westlaw competes with Lexis for the hearts and wallets of small practitioners

We'd previously blogged about a Lexis program rolled out earlier this fall that's aimed at providing solo and small practitioners with an extremely attractive pricing option:  Unlimited research (all state and federal cases and statutes) for $175.00 per month (a second lawyer in the same office gets it for $140.00 per month).  Our sister publication, the Law Librarian Blog, is reporting that Westlaw has just launched a similar program designed to compete for the same small law firm business. 

TR Legal [i.e. Westlaw] has kicked the competition in this once neglected market niche up a notch by offering flat rate plans for solos and small firms, meaning more that two attorneys as in three (more?). But while Lexis Advance is built on a new platform, TR Legal is pitching Classic Westlaw, not that shiny new, not yet ready for prime time WestlawNext. At least TR Legal is smart enough to know that WLN kinda sucks for some common state-focused research. Follow the links to Tom Boone's and Paul Lomio's critiques from here.

For an excellent side-by-side comparison of the Lexis and Westlaw small firm research packages, complete with helpful graphics that illustrate possible cost differences between jurisdictions despite the "flat rate" marketing, click here.

(jbl).

Study shows today's college students are less empathetic than past generations but they can be taught to change.

A recent study reported on by Inside Higher Education found that today's college students are 40% less empathetic than previous generations of students.  However, empathy experts say that sensitivity towards others can be learned.  Why should lawyers, law professors and students care?  Because the ability to intellectually and emotionally empathize with one's client as well her opponent are essential skills needed to produce a good result for that client.  As IHE reports:

Are you often quite touched by things you see happen? Do you try to look at everybody’s side of a disagreement before you make a decision? When you see people being taken advantage of, do you feel protective of them?

If you are a college student or recent graduate, you are more likely to answer 'no' to the above questions, which are excerpts from a University of Michigan test designed to measure the presence of empathy in people of different ages. What they found was disconcerting: College students today are 40 percent less empathetic than those who graduated two or three decades ago.

Can empathy be learned?

The general consensus among empathy scholars is . . . yes – but only under specific circumstances.

For instance, it is unrealistic to expect students to become more empathetic if they aren’t actually committed to the idea. In other words, they have to have the desire to change, said Sara H. Konrath, the adjunct assistant professor of psychology who led the Michigan study on college students’ empathy. 'It’s probably possible in the context of what they’re doing,' she said. 'If people are willing to do that and to try, then I think there are ways to change empathy.'

You can read the rest here.

(jbl).

Is Arbitration Best in Defending Legal Malpractice Claims?

The answer: It depends, and not everyone agrees. In a helpful article (published in San Francisco’s “The Recorder—Nov. 11, and republished in Philadelphia’s “Legal Intelligencer—Nov. 22) Brian Ahern sets out the pros and cons. Here is a  summary.

(ljs)

ABA issues working paper on outsourcing

Outsourcing has become a hot topic since the downturn in the legal job market.  Perhaps it will now become an even larger issue given that Thomson Reuters has announced the acquisition of an Indian legal outsourcing company.

Accordingly, the ABA has released a working paper on outsourcing.  From the Legal Blog Watch:

The draft does not propose changing any of the rules themselves, but just adding to the comments on the rules. Essentially, all the additional comments say is, "If you're gonna do it, do it right." But they say it much purtier. For example, the proposed comment to Rule 1.1:

[7] A lawyer may retain other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client provided the lawyer reasonably concludes that the other lawyers’ services will contribute to the competent and ethical representation of the client. The reasonableness of the conclusion will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal and ethical environment in which the services will be performed. When retaining lawyers and others outside the lawyer’s own firm, the requirements of Rule 5.5 (a) must be observed. When using the work of nonfirm lawyers in providing legal services to a client, a lawyer must also reasonably conclude that such work meets the standard of competence under this Rule. If information protected by Rule 1.6 will be disclosed to the nonfirm lawyers, informed client consent to such disclosure may be required. For example, if the rules, laws or practices of a foreign jurisdiction provide substantially less protection for confidential client information than that provided in this jurisdiction, the lawyer should obtain the client’s informed consent to such disclosure.

The draft report accompanying the proposed changes gives a brief history of legal outsourcing, tells readers how impressed they should be by how much background material the commission looked at before coming up with this draft, and has a throw-in line about how sensitive the commission is to the current job market for lawyers.

You can read more here courtesy of the LBW.

(jbl).

U. Colorado Professor Ward Churchill loses wrongful termination case on appeal

Professor Ward Churchill, who became the poster-child for academic freedom - or scholarly malfeasance depending on which party you represented, has lost his legal appeal challenging the U. of Colorado's decision to terminate the tenured professor.  As reported by the Denver Post:

The Colorado Court of Appeals has upheld a lower court decision denying University of Colorado professor Ward Churchill's effort to get his job back.

The court ruled that Denver District Judge Larry Naves was right to direct a verdict in favor of the university and to find that the university was entitled to "quasi-judicial immunity."

. . . .

Churchill's termination came after an essay he wrote that likened some victims of the Sept. 11, 2001, attacks to a World War II Nazi official. CU investigated whether his essay was protected under the First Amendment and found that it was. But while the investigation was underway, academics came forward and accused Churchill of plagiarism and fraud in scholarly writings, which led to his termination.

Churchill sued the university and was awarded $1 in damages by Denver jurors who determined that he was fired in retaliation for his speech.

But then-Chief Judge Naves, who has since left the bench, decided not to give Churchill his job back and set aside the jury's verdict. In a decision that was left until after the trial to decide, Naves also ruled that CU's regents, who are elected, acted as a "quasi- judicial" panel that had immunity from the lawsuit.

You can read more courtesy of the Denver Post here.

Hat tip to the Chronicle of Higher Ed.

(jbl).

Does literacy come at cost of other cognitive powers?

Unlike speech, there isn't a portion of the human brain devoted to reading or writing.  We're not hardwired to do either and thus neuroscientists are beginning to ask whether the cognitive resources used for those activities come at the expense of other skills.  As reported in the Chronicle of Higher Ed:

[R]eading is one of those complex skills that emerged in an evolutionary blink of the eye, in the Middle East about 5,000 years ago. It is also a skill reserved until the last two centuries for a very small percentage of humanity. That’s a strong circumstantial case that to read we must be appropriating parts of the brain that evolved for other purposes and re-wiring them to make sense of written language.

. . . .

[Leading French researcher] Dehaene and his colleagues recruited volunteers in three groups: people who became literate in childhood, people who learned to read as adults, and illiterates. They then used brain imaging to find the ways in which literate and illiterate brains differ. As Science summarizes it, 'the junction of the left occipital and temporal lobes of the brain' and 'parts of the left temporal lobe that respond to spoken language' differ between literate and illiterate brains. When something gets 'repurposed,' it stands to reason that the original purpose might not be served quite so well. Does literacy bring tradeoffs?

Maybe. If you learn to read as a child, the part of the occipital-temporal cortex that recognizes human faces is smaller than it is in people who learn to read later or who remain illiterate. Dehaene and his colleagues don’t yet know whether the difference in size translates into a degradation of ability.

You can read the rest here.

(jbl).

More Courts Opt for Digital Audio Recordings Online

Two federal district courts and six bankruptcy courts now offer digital recordings online through PACER, a service of the federal judiciary. And another 22 courts are planning to offer digital audio access. Here’s a report from U.S Law Week online.

(ljs)

The Royals Choose an Auspicious Wedding Date

Prince William and Miss Middleton have decided to hold their wedding on  April 29, 2011. That date is an auspicious one. No doubt they were aware that it is the birthday of Oliver Ellsworth, a Connecticut delegate to the Constitutional Convention and third Chief Justice of the United States Supreme Court.

Happy Thanksgiving to all!

(ljs)

The phrase "logic dictates" is a poor way to argue your case that the 3rd year of law school is unnecessary

Despite some intuitive appeal, I'm not the only one who doesn't understand the legal basis for this Georgetown Law student's argument that the third year of law school piles on unnecessary debt in exchange for impractical or meaningless electives.   (The student took off his third year of legal education to sue the California Bar arguing that he should be allowed to take the exam after only two years of law school).  His arguments were rejected right up to the U.S. Supreme Court and one commentator offered these reasons:

Michael Kessler, an assistant professor of government and the Assistant Director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown, is critical of Gordon’s unsuccessful petition and legal arguments.

'It’s a far-fetched, poorly written brief that glides over the salient points as if nine justices will be magically persuaded to his views by the inclusion of ‘Logic dictates’ at the beginning of a sentence, Kessler said.

Kessler also believes Gordon misinterpreted the Equal Protection and Due Process clauses.

'The petition is all over the map on this, Kessler said. 'Great way to imagine [the law], but the law doesn’t work that way.' While Anthony Clark Arend, the director of the Master of Science and Foreign Service and current adjunct law professor at the Law Center who also founded the Institute for International Law and Politics at Georgetown, said he found the case interesting, he thought there was little legal ground for Gordon’s case.

Logic dictates that GU won't be getting any alumni gifts from this student.  You can read more courtesy of The Hoya, the GU student newspaper.

Hat tip to Above the Law.

(jbl).

An important reminder to be grateful this Thanksgiving - lawyers, especially take note

Below is an important reminder courtesy of Above the Law to be grateful this Thanksgiving, even if your life isn't going exactly as you'd like in this terrible economy.   Ironically, the online ABA Journal Blog published on the same day as the below quote from ATL, the results of a study by a "gratitude researcher" from UC Davis who found that lawyers, in particular, are second only to teenagers in their lack of gratitude.

In light of that, all you lawyers our there, please keep the following in mind this Thanksgiving:

I realize some readers may be unemployed and other lawyers are not happy in their jobs. You still have plenty of reasons to give thanks for what you do have.

Not everyone has the opportunities to go to college and law school, and not everyone possesses the abilities to read, to argue, to counsel and to negotiate. While not all of us are millionaires, most of us are comfortable, and we should not take our comforts, or our health and welfare, for granted.

– Molly Peckman, director of associate development at Dechert, in an article for The Legal Intelligencer

Happy Thanksgiving to all our readers (for whom everyone at the Skills Prof Blog is grateful).

(jbl).

Lawyer's Guide to LexisNexis CaseMap

CaseMap seems to be popular in this area. The LexisNexis software permits integrating  case  law, legal analysis, and factual evidence of all sorts. The ABA Law Practice Management Division has just published “A Lawyer’s Guide to LexisNexis CaseMap” by attorney Dan Siegel. Here’s the ad.

(ljs)

The Royals Choose a Wedding Date

Prince William  and Miss Middleton  have decided  to hold their wedding on April 29, 2011, at  Westminster Abbey. No doubt, they are aware  that April 29 marks the birthday of Oliver Ellsworth, a delegate to the Constitutional Convention and third Chief Justice of the  United States Supreme Court. He was known as an excellent lawyer and a tightwad. How nice of the Royals to  give a nod to this former colony.

Happy Thanksgiving to all!

(ljs)

Must You "Date Stamp" an E-Filing?

Common sense says NO, and stop wasting the court's time with losing arguments. From U.S. Law Week online:

A petition seeking review of a National Labor Relations Board decision that was filed by a union complying with the court's electronic filing procedures satisfied the requirements for a “petition for review” even though it was not “stamped by the court with the date of filing” as required by a federal statute, the U.S. Court of Appeals for the Second Circuit held Nov. 12 (Local Union 36, International Brotherhood of Electrical Workers v. National Labor Relations Board, 2d Cir., No. 10-3448-ag, 11/12/10).

Judge Gerard E. Lynch said that “where a party files a petition for review in the Second Circuit [which requires e-filing], and then serves the agency with the petition accompanied by the email, bearing the date and time of filing, by which the petition was filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).”

A literal interpretation of Section 2112(a)(2) would lead to the “absurd result that no qualifying ‘petition' would ever exist when a party sought to file a petition for review in a court of appeals, such as ours, that has adopted an electronic filing system,” the court said.

The NLRB issued a decision and order on Aug. 16, 2010, finding that Rochester Gas & Electric Co. violated the National Labor Relations Act by refusing to bargain with a union.

Rochester Gas filed a petition for review of the order in the District of Columbia Circuit on Aug. 20, and served a non-date-stamped copy of the document on the NLRB by overnight delivery service.

On Aug. 26, the union filed a petition for review in the Second Circuit, following the court's mandatory procedure by transmitting a copy of the document in electronic form to a designated court e-mail address. Under the Second Circuit's rules, such an “initiating document” is considered filed in the court as of the date and time indicated on the e-mail submission.

The union served the petition on the NLRB along with its e-mail to the Second Circuit, which reflected the date it was submitted to the appellate court.

(ljs)

Including "temp" legal work on your resume may hurt applicants' chances for full-time employment

That's the advice from the Careerist blog to unemployed or laid-off lawyers who've had to do contract work to tide themselves over until the market gets better.

It's bad enough to be laid off but . . .  these lawyers face another potential stigma: being branded as untouchable for taking on certain contract positions, such as document reviewer. So is it better to just leave off low-brow legal work on your resume, if your goal is to return to a big firm?

Several [blog readers] . . . advised against putting document review work on resumes, calling it a 'scarlet letter.' Writes one reader: 'If you tended bar to make ends meet while job hunting, you wouldn’t put that on your resume, would you? Approach temping the same way.'

On the other hand, the Careerist asked one legal recruiter about it and this was her response:

To the extent that omissions are tantamount to misrepresentations, I would counsel against it. Further, if omitting the projects would cause a huge and glaring gap in the resume, that’s equally problematic.' But she also says that, 'if the the project is relatively short (less than a month or so), then it’s a coin toss.'

You can read the rest here.

Hat tip to the online ABA Journal blog.

(jbl).

Women and minorities are underrepresented among law firm associate ranks in wake of job market meltdown

From the National Jurist Magazine:

Lawyer layoffs throughout the 2008-2009 season have had a significant impact on the number of women and minorities in the field, according to the National Association for Law Placement's latest report. For the first time since 1993, when NALP first began compiling information, the number of women and minorities in partner and associate ranks has dropped.

Minorities now make up 12.4 percent of lawyers, while women account for 32.7 percent. While these numbers have dropped minimally percentage-wise, they indicate a significant shift in the work environment.

'While the actual drop in the representation of women and minorities is quite small, the significance of the drop is of enormous importance because it represents the reversal of what had been, up until now, a constant upward trend,' NALP Executive Director James Leipold said. 'Prior to the recession law firms had struggled to recruit and retain a diverse workforce of attorneys, but there were small gains year after year. The reversal of that trend underscores how important it is for law firms to redouble their diversity efforts.'

You can read the rest here.

(jbl).

Taking Notes During Your CLE - Online!

My own State Bar of Texas CLE department is offering a new feature for lawyers who prefer to take their CLE online:  note-taking.  CLE programs have long been offered online, but now users can actually annotate the presentation with their own notes.   If you ever need to go back to your notes, they will be archived for you - you can even go back to the point in the video where you made those notes.

I really like this enhancement, but there's only one problem - I would want to keep my notes on my own computer, or in my own stored area.  I guess that's what programs like Evernote are for - still, it's nice seeing a bar association provide some extra functionality to its members.

(TM)

Why Some People Perform and Some Don't When They're in the Clutch

At this time of the year, many of our students are under severe pressure to perform. They have to draft a document, perform a service for a clinic client, or get ready for an exam.

At the Harvard Business Review online, Paul Sullivan offers his results from a study of the military, business executives, and  athletes on who performs in the clutch and who does not:

"In a previous post, I discussed the five traits of people who excel under pressure: focus, discipline, adaptability, being present and a combination of fear and desire. But just as important is the ability to understand and eschew the qualities that cause people to choke in the same circumstances. My research into military leaders, business executives, and athletes indicates that there are three common problems: a failure to accept responsibility, overconfidence and overthinking."

I think this diagnosis applies to law students. Perhaps if we gently guide our hassled students to understand what holds them back from a successful performance, we may help them when they find themselves in future clutches.

(ljs)

And speaking of the importance of office politics (see below), here's a primer on obsequiousness

A couple of Northwestern Business profs have released a study that analyzes the factors that have helped executives get coveted seats on boards.   Their conclusion?  "[I]ngratiating behavior was the strongest single predictive factor for obtaining board appointments."

Now you may be asking:  "Ok, but what's the best way, exactly, to suck-up without being too obvious about it?"  The Northwestern profs have you covered there too because they've compiled a list of the most successful ingratiating behaviors which the Careerist blog has thoughtfully published:

1. Pretend you're seeking advice. Example: “How were you able to close that deal so successfully?”  Mentoring is very in--so let that incoherent partner think that he can actually teach you something.

2. Argue a bit with the kissee about his opinion or approach. Do not agree immediately. But, needless to say, ultimately agree. Remember, lawyers love a good argument--especially if they think they've won.

3. Tell the kissee's friends or family how much you adore/admire her. Just pray that word ultimately gets back to the kissee--otherwise, you've wasted a lot of time.

4. Flatter the kissee by pretending that you're actually a reluctant flatterer. Example: “I don’t want to embarrass you, but your presentation was really top-notch. Better than most I’ve seen.”

5. Agree with the kissee’s values before agreeing with her opinions. The goal is to convey how you both share the same big picture--that vision thing.

6. Tell people in the kissee’s social network that you really share those values. Again, you are counting on word getting back to the kissee that you are kindred spirits.

7. Finally, hint that you are part of the same circle, such as a religious organization or political party.

You can read the rest here at the Careerist.

Hat tip to the online ABA Journal Blog.

(jbl).