Tuesday, December 7, 2010
You know it’s dangerous to give informal advice, but sometimes, you feel that you have to. At this holiday time of the year, you may find yourself at gatherings where others want to ask you legal questions. The December issue of the Texas Bar Journal offers advice on how to handle these situations. Of course, the first rule is to include a disclaimer—you can’t give a definitive answer, because you don’t know all the facts; you would need to do some research, etc. However, the article goes on to give examples of typical questions that you may get and to offer you some brief answers.
It’s a good idea to talk with your students about the pitfalls of showing off your legal knowledge in these settings.
In a blog posting at the Harvard Business Review online, Professor John Kotter offers advice on the art of persuasion. You make an argument or proposal and elicit a negative response. Should you answer by focusing on detailed data or should you give a simple, common-sense argument? He writes:
I've found that in most cases, people should argue with less data. When you're defending an idea, my research of what works in the real world suggests that you should respond in ways that are simple, straightforward, and honest. This may sound obvious, but I found that this principle is rarely employed. Rather, most people respond to a critical question by arguing against the reasoning of whoever asked the question. They offer all of the evidence they can think of, hoping to make their case overwhelming. They shoot at an attack sixteen times with bullets of data to make sure it is dead. But in so doing, they are arguing not on their own but on the naysayer's territory, opening themselves up to counter-attacks with each piece of evidence they dispense — and simultaneously putting other listeners to sleep!
Monday, December 6, 2010
Here's a podcast from the online ABA Journal Blog you may be interested in (it features several mid-size law firm managing partners and a law firm management consultant):
As corporate legal budgets continue to shrink, many general counsel are turning to midsize law firms in lieu of their more expensive, BigLaw counterparts. In fact, many midsize firms have reported significant success in the Great Recession.
ABA Journal Podcast moderator Stephanie Francis Ward joins our guests to discuss the tactics these firms have used to better understand client needs in a down economy, avoid overstaffing large matters, boost revenue realization rates, and grow a national reputation for expertise while maintaining a regional presence.
A previous study suggested that today's generation is more narcissistic than past generations (although others dispute the data). Now comes this study reporting that narcissists may be more likely to cheat. From the Chronicle of Higher Ed:
Researchers asked 199 college students from a 'regional Midwestern college' to take the Narcissistic Personality Inventory, a 40-question test that purports to measure one’s self-regard. They also had them complete a questionnaire that evaluated their academic dishonesty and how guilty (or not) they felt about what they’d done.
They found that students who tested high for a particular dimension of narcissism — exhibitionism — were more likely to be cheaters. The researchers define exhibitionism as a 'desire for admiration' that 'functions as a means to demonstrate superiority to others.' These students were less likely to feel remorse over their academic sins.
. . . .
The study . . . does makes a kind of intuitive sense: If your opinion of yourself is ridiculously high, and your desire to appear superior to others especially strong, then maybe cheating becomes an almost irresistible option. And if your primary goal in life is to publicly assert your awesomeness then how you achieve that objective isn’t important. Why feel guilty about doing what it takes to win? Right?
The study also seems to suggest a correlation between self-esteem and cheating. Those with high self-esteem tend to cheat less than those who have low self-esteem.
While I haven't read the study in full yet, I remember reading that another dimension of narcissism is the belief that one is above the natural laws. I wonder if that also causes some narcissistic students to cheat - the notion that they won't be caught or that there aren't consequences to their actions.
Interesting stuff - you can read more here.
A colleague who knows of my interest in writing-related matters alerted me to these two studies:
- Dennis Upper, The Unsuccessful Treatment of a Case of “Writer’s Block,” Journal of Applied Behavior Analysis (Fall 1974).
- Robert Didden, Jeff Sigafoos, Mark F. O’Reilly, Giulio E. Lancioni & Peter Sturmey, A Multisite Cross-Cultural Replication Of Upper’s (1974) Unsuccessful Self-Treatment Of Writer’s Block, Journal of Applied Behavior Analysis (Winter 2007).
Be careful about blogging and emailing confidential legal information! U.S. Law Week online reports:
A plaintiff who sent e-mails, posted a blog, and engaged in Gmail chat sessions through which she disclosed information about her attorneys' litigation strategy waived the attorney-client privilege for related information, the U.S. District Court for the Northern District of California ruled Oct. 22 (Lenz v. Universal Music Corp., N.D. Cal., No. 07-3783, 10/22/10).
The lawsuit complains that Universal Music Corp. sent a wrongful Digital Millennium Copyright Act notice to YouTube, requesting the removal of a video depicting a toddler dancing to Prince's “Let's Go Crazy.” According to the complaint Universal knew or should have known that the video was a self-evident non-infringing fair use under 17 U.S.C. §107.
Here is the full story.
(Happy St. Nicholas Day!)
Where were you when you heard about Pearl Harbor? Americans who were around in the 1940s have often asked that question of one another in the same way that other generations have asked “Where were you when President Kennedy was shot?” or “Where were you on 9/11?”
On December 8, 1941, the day after the bombing, President Franklin Roosevelt addressed Congress and the nation in a memorable speech that began with these words: “Yesterday, December 7, 1941 a date which will live in infamy the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.”
Although the speech has been the subject of study in other disciplines, I cannot recall its inclusion in Legal Writing pedagogy or scholarship. Wikipedia offers a helpful rhetorical analysis, interesting background information, and references to other sources. Here is the text of the six and one-half minute speech.
This issue has been before the Council of the Section of Legal Education and Admissions, which is the accrediting body for American Law Schools. Last July, a special committee reported to the Council. After assessing the pros and cons, the committee made these recommendations:
(1) The Council should authorize the Accreditation Project to go forward with considering the accreditation of law schools outside the United States borders that meet all of the prevailing Section Accreditation Standards and Rules of Procedure for the policy reasons discussed in Part I.
(2) The Council should request the Standards Review Committee in its ongoing comprehensive review to look at all the Standards to ensure that none of them unintentionally sets up barriers to this geographic expansion and to remove any such barriers that do not implicate the substantive standards ensuring a quality legal education.
(3) The Council should consider drafting a policy statement to clarify the matters highlighted in Part II that deal with the underlying assumptions in the current standards, such as that the curriculum is primarily focused on U.S. law, the instruction is primarily in English, and the faculty are primarily J.D. graduates of ABA approved law schools.
(4) If the Council agrees with the preceding recommendations, recognizing that it is very difficult to consider in a vacuum all the issues that may arise when the Section has not before entered this arena, the Council should consider whether it might be advisable to allow a site visit on a trial basis of a foreign applicant school that wants to see whether it can meet all the standards.
The reservations seem to be insuring the quality of education at foreign schools and the possibility that the schools will lead to a flood of foreign lawyers entering the U.S. and competing for scarce jobs.
In the face of concerns raised by a number of U.S. law deans, the Council has postponed a decision to move forward:
Consistent with the first recommendation of the Kane Committee report and in view of the comments received by the Council with respect to that report, I move that the Council continue with its consideration of the approval of foreign law schools and engage in our consideration appropriate public and private stakeholders, for example, the Conference of Chief Justices, state bar examiners, legal educators, representatives of the legal profession, and public officials. Until the Council has fully vetted the issue as to whether to expand the accreditation role of the Section to encompass law schools located outside of the U.S. and its territories, the section will not proceed with consideration of any application for provisional approval from a foreign law school.
It seems to me that globalization of legal education inevitably follows on the heels of the globalization of the legal practice. There’s no point in delaying on the issue.
Sunday, December 5, 2010
Richard E. Hoagland, the ambassador to Kazakhstan, thinks good cable-writing is so essential that he has written a guide for junior diplomats, “Ambassador’s Cable Drafting Tips.” Many of the tips would be familiar to any cub reporter trying to get an editor to bite on a story.So, if you're a lawyer or law student looking to become a Foreign Service Officer, polishing your writing skills might give you an edge in the highly competitive selection process.
“The trick is to catch readers’ attention,” he advises. “The first three to five words are all they will see in their electronic queue.”
His specific recommendations? Avoid flabby writing, citing as a typically egregious example any memo that starts: “ ‘The ambassador used the opportunity of the meeting to raise the issue of’...”
And work on storytelling: “Despite what some in Washington will tell you, there is nothing at all wrong with colorful writing, as long as it communicates something.” But he adds a caveat: “Cute writing is never acceptable — cute is for toddlers, not for professional diplomats.”
Mr. Hoagland, who accompanied Mrs. Clinton to meetings this week, declined to discuss the substance of the leaked cables. But he was happy to discuss style. As a general rule, he said he instructs staff members to think like journalists. “Not everything we churn out is great writing,” he said, “but we try to keep up the standards.”
LexisNexis just announced that it has acquired a service called State Net that reports federal and state legislative developments. Here's the Lexis press release describing the service courtesy of the Law Librarian Blog:
'Through the acquisition of State Net, LexisNexis has secured critical content and tools needed by legal and business professionals to rapidly monitor and analyze the policy decisions being made by Federal and State governments and regulatory agencies across the US on a daily basis,' said Bob Romeo, senior vice president of Research and Litigation Solutions at LexisNexis. 'Access to this critical information means our customers are at an advantage when assisting their clients in finding, analyzing and planning for those decisions.'
State Net collects, normalizes and editorially enhances all bills introduced in the 50 U.S. state legislatures, the District of Columbia and the U.S. Congress, as well as all agency regulations from every state. The service also provides timely delivery of data, legislative intelligence and in-depth content and tools reporting on the actions of government institutions.
State Net provides users access to information on individual legislative bills and their progress within twenty-four hours of public availability. It also enables subscribers to obtain current versions of bills and statutes, check the validity of statutes, track pending changes to statutes and regulations, and research historical summaries of legislative actions. State Net tools and content enable users to assess the impact of proposed legislation and regulations, influence proposed matters, and reduce compliance risk.
For some lawyers, blogging is an important means of client development. But how do you find the time or motivation to do it? Here's some advice courtesy of a column from the National Law Journal:
Far too many law blogs appear, have one post, and then sit idle for months afterwards. This is not a good thing. As Bob Kleiber, Marketing and Communications Manager for Dorsey & Whitney said, "its like having a puppy, you can't just leave it for a month and forget all about it." Or as Gayatri Bhalla of Greenfield Belser said in her session on blogging at the conference, "they call it an RSS FEED for a reason, you need to feed it with new content."
How much new content? Studies have shown that blogs require more than 52 total posts to pass the tipping point in terms of traffic and lead generation. 52 posts requires work and a long term commitment. So how do we motivate our attorneys to do that much extra writing?
Some firms require (under threat of firing) that lawyers come up with a new blog post each week as part of their job, others have them sign a blog contract. To be honest, I haven't seen firms have a lot of success with either of these tactics.
In my experience, the lawyers that are successful blogging have a clear vision of what they want to achieve, and a hunger to do more from a business development perspective. This vision and hunger are essential because a blog is so much work. The amount of non-billable time that a lawyer has is limited, so you aren't likely to get them to sacrifice that time unless they believe in what they are doing. Help your attorneys develop that vision of the future, and you will have much more motivated bloggers. Once they have this motivation, what's next?
I ask the attorneys at the firms I work with to start by creating a brief blog proposal. This one-page blog proposal basically consists of three parts: The title of the blog, a one paragraph summary of what the blog is about, and 4 or 5 ideas for blog posts. This serves as a pretty good filtering tool weeding out the serious from the less serious blog candidates. If they can't come up with 4 or 5 blog post ideas now, it is unlikely they will have what it takes to come up with new posts for the next 52 weeks. Provide some guidance though, if they can't think of anything to blog about, I simply ask them, "what questions are you hearing from clients lately?" This question alone will often help them come up with a half-dozen ideas for blog posts.
You can read the rest here.
Here's an interesting post from the ever-popular blogger ProfHacker courtesy of the Chronicle of Higher Ed:
Using Letter Grades
- I suspect students expect letter grades for the kinds of assignments and exams I give (primarily essay, in both cases).
- Students know immediately how to interpret the grades.
- It’s not always easy to know how to mark an assignment that’s borderline between two grades, or how to record it. (How do you easily enter an A-/B+ into a spreadsheet, if that’s how you keep your gradebook?)
- If you expect students to keep track of their own progress through the semester, letter grades can make that task difficult. They’ll have to do the conversion to the four-point scale, set up the calculation, etc.
- Record keeping is easier (numbers work a lot better than letters in a spreadsheet formula).
- It’s easier for students to keep track of their own grades and progress than it sometimes is with letters.
- There’s a bit more fine-tuning possible with assigning and recording borderline grades. Not sure if a paper is a B+ or an A-? Admittedly, there’s still a difference between an 89 and a 90, but using numerical grades makes that difference smaller than the four-point scale would. For that matter, a spreadsheet will understand 89.5 just fine, so A-/B+ can be an actual grade.
- I sometimes feel as though I’m quantifying things that really aren’t quantifiable.
- Students aren’t always accustomed to thinking of grades in numerical terms.
- If students do start thinking in terms of “A 92 is an A-, but a 93 is an A,” they may be more likely to argue about the grade (instead of realizing that, over the course of the semester, there’s precious little difference between a 92 and a 93 on one assignment).
You can read the rest here.
Although not a new topic, this particular story was carried by a popular press newspaper - the Minneapolis-St. Paul Star Tribune.
It is troublingly unclear whether prospective students have the information they need to realistically weigh the risks and benefits of a law degree. While some law schools do a better job than others (including several in Minnesota), the bare-minimum approach taken by some makes it difficult for students to determine what kind of job they can expect after graduation and how much they can expect to earn. Too often, the salary and placement information on websites and in popular media makes the postgraduation world look rosier than it is.
Salary information may only reflect graduates who work in private industry, for example, where top students tend to land and where those six-figure starting salaries tend to be. The "median" salary may only be for graduates who chose to report their incomes; those who didn't report back might not be employed, or might have lower salaries.
You can read the rest here.
Congratulations to the Journal of Appellate Practice and Process. Its new issue offers a number of articles of interest to the Legal Skills community. Here is the table of contents:
Volume 11• Issue 1 (Spring 2010)
Helen A. Anderson, Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice
David R. Cleveland, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1
Brady Coleman and Quy Phung, The Language of Supreme Court Briefs: A Large-Scale Quantitative Investigation
Victor Eugene Flango, State Supreme Court Opinions as Law Development
Aaron R. Petty, Matters in Abatement
William E. Raftery, Gubernatorial Removal and State Supreme Courts
Joseph L. Gerken, How Courts Use Wikipedia
The most recent scandal in the mortgage industry includes notaries notarizing documents not signed in their presence. When lawyers compel notaries to engage in this (mal)practice, the lawyers run afoul of the Rules of Professional Conduct. Here is a statement from the Disciplinary Board of the Supreme Court of Pennsylvania. The Pennsylvania ethics rules that are mentioned are the same or similar to those in virtually every state:
In response to our item last month about the increasing scrutiny of notaries in the aftermath of the mortgage meltdown, reader Dana Pirone Carosella writes to note that many attorneys put pressure on their employees who are notaries to notarize documents not signed in their presence, or otherwise inconsistently with their duties as notaries.
Ms. Carosella notes, and we agree, that this is an unacceptable practice. An attorney who directs or encourages an employee-notary to notarize documents not signed in the notary’s presence commits serious misconduct and could face discipline. Rule 8.4 of the Rules of Professional Conduct states that it is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, do so, or do so through the acts of another . . . ;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice . . .
Being a party to an improper notarization violates all of these rules. In addition, the lawyer who files or uses a document knowing it was improperly notarized may “offer evidence that the lawyer knows to be false,” in violation of Rule 3.3(a)(3).