Saturday, December 18, 2010
Law schools continue to try to decipher the American Bar Association’s call for outcome/assessments of legal education programs. Just what does the ABA have in mind? Paralegal programs that have or seek ABA approval encounter the same ambiguous requirement. Here is a provision from the ABA Guidelines for the Approval of Paralegal Education Programs:
E. The program must have an organized plan for evaluation, review, and
improvement of the program. There must be regular assessment of the extent
to which a program meets its stated goals and objectives.
F. Assessment and evaluation may be accomplished through assessment tools
that best measure the program’s goals and objectives. The adequacy of the
assessment will be evaluated by:
1. The quality of the assessment instruments and methodology;
2. The frequency with which assessment is conducted;
3. The degree of participation, such as the response rate on surveys, so as to
ensure the validity and reliability of assessment findings;
4. The extent to which input is sought from graduates, employers, students,
advisory committee, faculty, school administrators and a cross-section of
members of the legal community;
5. The written summary and analysis of the assessment findings;
6. The extent to which the results are shared with the advisory committee,
faculty, administrators, and others; and
7. The extent to which assessment findings are used to make changes in the
Here is an excerpt from a report form that ABA-approved paralegal programs must submit:
- Attach as Exhibit I:
a. a copy of the program’s written assessment plan;
b. a list of the assessment activities conducted during the past three years; and
c. a summary and analysis of the results obtained by each assessment activity.
Friday, December 17, 2010
I don't use or follow Twitter (each of us has to draw the line on what additional technology we have time for and/or adds value to our daily lives - see this blog post from Attorney At Work for practical advice on how to do just that). Although many lawyers don't use Twitter either, others do see the benefits. Here's an article from the National Law Journal that advises lawyers on ways they can use Twitter to enhance their practice. Among the suggestions is that it can be an effective research tool (since the popular press often Tweet stories before they go live elsewhere), clients sometimes prefer to use Twitter as the fastest way to get in touch with their lawyers, and Twitter can be an effective business development tool by using it to market your expertise to existing and would-be clients.
Check out all the reasons Twitter might be a good fit for your practice here.
Student "note" of interest: "War of the words: how courts can use dictionaries consistent with textualist principles"
This law review note was written by Duke 3L student Phillip A. Rubin (who is also working towards a degree in psychology and neuroscience) and is available at 60 Duke L.J. 167 (2010). From the abstract:
Dictionaries have an aura of authority about them - words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court's increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly - and, at worst, using them to reach their preferred outcomes.
New "skills" scholarship: "Making effective use of practitioners' briefs in the law school curriculum"
This article is authored by Widener Professor Anna P. Hemingway and can be found at 22 St. Thomas L. Rev. 417 (2010). From the introduction:
Many law students attend school for three years and go on to graduate, pass the bar exam, and begin practicing law without ever reading court documents produced by practicing attorneys. This happens because although law schools teach students how to write many of the documents that are produced for court, rarely do professors use these documents in the classroom to teach. Instead, professors assign edited case opinions in text books for law students to read.
Case opinions are useful to teach students the law. They are, however, just end products, and consequently, show students only how a case concluded, not how it began or how it was argued or how it progressed through the legal system. This lack of exposure to legal arguments can leave students with an incomplete understanding of the legal process.
For those of you journeying to San Francisco for the AALS Annual Meeting, here’s the final program, listing where events and sessions will take place. It is 220 pages and available only electronically. Because I do not cross picket lines, there are some events that I will not be attending; they take place at the Hilton. I recognize that some people of good will take a different position.
Here is a list of events and sessions at the Hilton that I was planning to attend or seriously thinking about attending. I am including page numbers from the program that describe them.
Exhibit Hall (1)
Transactional Law & Skills (7)
Legal Writing Section Business Meeting (8)
Legal Writing Luncheon (30) (I have asked for a refund)
Real Estate program on green buildings (36)
AALS Site Evaluation Workshop (45)
AALS Presidential Programs (60)
Committee on Research Program (84)
Section on Legislation (97)
Legal Writing Section (103)
I just received a copy of “Advocacy Words: A Thesaurus” (expanded 2d ed.) by William Drennan, published by the ABA General Practice, Solo & Small firm Division. This clever book lists “favorable words” and next to them, lists “critical words.” It also lists “critical words” and next to them, lists “favorable words. Some random examples:
Favorable: Brave Critical: foolhardy
Favorable: assortment Critical: concoction
Favorable: inexact term Critical: lie
189 pages, at the unfortunate ABA price of $29.95. Look for it in your library.
Thursday, December 16, 2010
From Inside Higher Ed:
In a phrase: look for outliers. It’s really about spotting the folks who are badly trailing the rest of the pack. Putting much weight on the difference between the lower middle and the upper middle is missing the point. There’s considerable normal variation, and all kinds of irrelevancies can push one instructor slightly above or below another. But when the same few names show up at the bottom of the list semester after semester, it’s difficult to write that off to random variations.
That’s where comments are useful. Some comments suggest ideological or cultural antipathy at work; those discredit themselves. (About once a year I get a student complaining that his professor is gay, and wanting to know what I’m going to do about it. “What would you suggest?” usually ends the discussion.) But some comments are actually revealing. I tend to discount references to “arrogance” or “full of himself,” but I take seriously comments like “he takes two months to grade papers” or “he’s incredibly disorganized.” When clusters of students make the same basic comment, there’s usually at least a conversation to be had.
Some professors like to say that student evaluations shouldn’t exist, or at least shouldn’t count for anything. I have to disagree. When a dean does a class observation, she observes one class meeting. Things like “speed of grading” simply won’t show on the radar, and of course, anyone can have an uncharacteristically good or bad day. But students see every day, so things that might seem inconsequential (or be entirely invisible) in a single moment take on their full significance.
You can read the rest here.
As the Yale Law School professors Judith Resnik and Dennis Curtis show in an unusual new book just out, 'Representing Justice' — an academic treatise on threats to the modern judiciary that doubles as an obsessive’s tour of Western art through the lens of the law — Lady Justice’s familiar blindfold did not become an accessory until well into the 17th century. And even then it was uncommon because of the profoundly negative connotations blindfolds carried for medieval and Renaissance audiences, who viewed them as emblems not of impartiality but of deception (hence the early use of the word hoodwink as a noun, meaning a blindfold or hood).
'Sight was the desired state,' Professors Resnik and Curtis write, 'connected to insight, light and the rays of God’s sun.' Even in modern times the blindfold continues to fit uneasily in Lady Justice’s wardrobe, used as a handy prop by political cartoonists and a symbol of dysfunction by others. 'That Justice is a blind goddess/Is a thing to which we black are wise,' Langston Hughes wrote in 1923. 'Her bandage hides two festering sores/ That once perhaps were eyes.'
It might convey some idea of the depth of Ms. Resnik and Mr. Curtis’s mutual interest in the art life of Lady Justice that their examination of the history of her blindfold alone takes up one whole chapter and part of another in the book, following ideas of sight and veiling through the philosophy of Locke, Diderot and Bentham. The book traces the remarkable ubiquity of the figure of justice around the world, from the statue at the Supreme Court of Canada in Ottawa to one presiding over a constitutional court in Azerbaijan to others in Zambia, Iraq, Brazil and Japan.
You can read the rest of the NYT's review here.
Tip for law students - failing to comport oneself in a professional manner while out in public can cost you a job
This anecdote from the online ABA Journal blog is a good reminder to both students and recent grads that obnoxious public behavior can cost you a legal job.
A single bad experience with a lawyer can harm a law firm’s reputation, hurting its ties to clients and its recruiting efforts, according to law firm consultant Frank Michael D’Amore. Misbehaving lawyers may also do harm to their own career prospects, D’Amore writes for the Legal Intelligencer.
D’Amore says law firms need to teach their lawyers that great results can be achieved when acting honorably. 'Young lawyers, especially litigators, are often ‘raised’ in environments in which every matter, whether it is a trial or even a simple motion to compel, is tantamount to a battle between good and evil,' he writes. 'This can lead to regrettable behavior, even from lawyers who otherwise are good, decent people.'
Lawyers need to realize that they are always in the public eye, even if they are at a Little League game or waiting for a plane, he writes. D’Amore recalls flying to another city to help a law firm recruit some new partners. After reviewing the bios of the potential laterals, D’Amore was waiting at the airport for the trip home.
One of the targeted lawyers, who didn’t know D’Amore, ended up sitting across from him at the airport. The lawyer sported a briefcase emblazoned with the name of his firm.
'I then proceeded to watch in horror as this rather slovenly dressed lawyer sprawled out over his seat and starting chomping on his breakfast as if he were Secretariat munching his last bale of hay,' D’Amore recalls. 'His repast was followed by a series of cellphone calls with escalating volume and obnoxiousness. I retreated to another area, secure in knowing that he was now off the candidate list.'
There are few things in modern life more annoying than being forced to listen to the inane and insignificant details of someone's life being broadcast via a too loud cellphone conversation in an enclosed public space.
While at first blush these two stories would suggest so - compare Expert Warns of Law Firm Overcapacity and 'Further Timekeeper Cuts' with Legal Recruiters See More Hiring, But Laid-Off Associates Aren't in Demand - upon a closer look they're consistent. If you can immediately add to the firm's bottom line, you'll get hired. But the days of hiring scads of new law grads while the firms patiently wait for them to develop practical skills aren't coming back soon.
Guest blogster Theresa Clark (Villanova) spoke on the subject at the LWI One-Day Workshop at Widener Law School on December 3. Here, she offers a summary of her suggestions.
Everything that I Know about Effective Commenting I Learned in Legal Writing
Be Clear. An effective written comment should identify the problem specifically, point the student to the solution (or provide it), and point the student to a good example (or provide it).
Be Concise. Do not provide multiple comments on the same type of problem, when one will suffice. Provide a detailed comment for the type of error only one time. The second time the error presents, note the type of error and refer to the prior comment. For all subsequent errors of that type, simply circle or highlight it.
Be Organized. Communicate your comments in an organized manner. As stated above, identify the problem, point toward the solution, and provide a good example.
Be Goal and Audience Driven. Keep in mind the purpose of the assignment. Create a checklist of the skills that you are assessing on a given assignment. Do not comment on skills that you have not addressed in class. Also, keep in mind that these are first year law students. Draft your comments using a professional tone, use language that the students will understand, and adjust your expectations if necessary.
Be Confident. Communicate your comments with confidence. Do not use passive voice and do not water down your identification of the problem to spare the students’ feelings. Do engage in a public relations campaign and explain to your students that your intent is not to be harsh, but to promote learning.
Be Correct. Do not identify a problem if you are not 100% sure that you are correct.Apply these keys to your written comments and you will have an effective comment every time.
- Express empathy (I can tell how upset it made you)
- Get clarification of the problem (ask gentle fact-finding questions)
- Apologize (even if you are not in the wrong)
- State that you want to help
- Probe for more information
- Repeat his concern back to him to make sure you understand (and so that he feels “heard.”)
- Show you value him as a client
- Explain possible options for resolution and ask what he’d like to have happen
- Summarize the actions you agree to (yours and his)
- End pleasantly
Wednesday, December 15, 2010
Since these come from a legal outsourcing consulting firm, there's no surprise that they all relate in some way to "outsourcing" (as we reported earlier, Florida has become a center of domestic legal outsourcing due to lower labor and overhead costs). Here's the full list of predicted changes for 2011 courtesy of Frontierion:
1. A Fundamentally Changing Legal Profession. Continued downward pressure on costs and the globalisation of legal services provide a perfect environment for [legal process outsourcing ("LPO")]. Those who refuse to engage with LPO will increasingly become a minority ‐ the industry can no longer be ignored.
2. Enterprise Approach. Many firms already outsource legal work at partner or department levels. However, LPO is more effective and efficient when a firm implements a firm‐wide or ‘enterprise’ approach, led by senior management.
3. Onshore Expansion. The growth in onshore and hybrid on‐offshore delivery solutions will begin in earnest in 2011. This trend will be equally prevalent in the United States and United Kingdom, with LPO providers and firms already building capacity.
4. Expanding Client Geographic/Jurisdictional Reach. Demand for LPO services will spread to new markets. In the US, law firms in Texas, the Midwest and the Pacific Northwest are potential growth markets for LPO. In the UK, regions outside of London are also emerging growth markets. However, continental Europe will remain a
challenging environment for LPO.
5. Progressive Value Proposition. LPO providers will have to offer more services and a more progressive value proposition to remain competitive. Alongside traditional litigation support, LPO vendors may also have to offer contract portfolio servicing, compliance, diligence, human resources, medical and broader legal support functions.
6. Increasing Technology Applications. As a result of the growing importance of technology, LPO vendors will use technology as a key selling point. Technology platforms will be used to offer diversified services and as a means for vendors to further embed themselves in client organizations.
7. Dynamic Vendor Landscape. The unprecedented growth and industry consolidation initiated in the fourth quarter of 2010 will continue to shape the dynamic LPO vendor landscape in the coming year. Overall, these consolidation trends are positive for the industry as vendors emerge stronger, more capitalized and, most likely, considerably larger.
8. Public Acknowledgement. The growing acceptance and adoption of onshore and offshore LPO will become more visible in the coming year. This will become increasing prevalent in the US, where in past Rive to six years, corporations and law firms have remained virtually silent on all LPO related matters.
9. Divergent Vendor Approach. Competition means that LPO vendors will have to differentiate themselves from each other in terms of services offered and delivery models. No dominant model exists (yet) and a range of different approaches will emerge next year.
10. Ethical Guidance. Regulatory bodies start to address the changing legal landscape. In the US, ethical commentary is expected from the ABA’s Commission on Ethics 2020. In the UK, announcements are expected from the SRA and the Law Society. Other jurisdictions that have been silent so far may follow suit, such as Australia, Canada, and South Africa.
You can read more from Frontierion's press release here.
Hat tip to the online ABA Journal Blog.
As I survey the literature, I see a consensus emerging that whether we're talking about p-books versus e-books or internet access versus no internet access, a consensus is emerging among experts that professors need to place limits on how and when technology is used in the classroom. Here's more support for that position - an article entitled "The Impact of Web Browsing on Classroom Learning Performance" published in 11 Issues in Information Systems 460 (2010). From the abstract:
In a growing number of classes, students have internet access through laptop or laboratory computers. Internet access could enhance student learning by allowing them to read online course materials provided by the instructor plus other material relevant to the course. However, students may be distracted from the class by surfing the Internet, chatting online, checking emails, and so on. Therefore, one may wonder, on balance, whether or not Internet access is beneficial to learning. This study employed a controlled experiment to investigate how Internet access influences classroom learning. Browsing non-class web sites during class time had a detrimental effect on students’ learning, but student access to class-related web sites improved it. Therefore instructors should consider using control mechanisms to block access to non-class web sites during class lectures. Students should be encouraged to browse through slides while listening to the lecture.
You can read the full article here.
In December, many Legal Writing Professors are completing their grading obligations and starting to prepare to teach persuasive writing in the coming semester. Often the major writing assignment for the spring will be the brief. If you fit this category, you might want to consider assigning “Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs,” by Sarah Ricks and Jane Istvan, 38 University of Toledo Law Review 1113 (2007). Here are the opening paragraphs:
THERE is an art to writing effective briefs, and each brief is different. But
many ineffective briefs contain the same mistakes, regardless of the brief’s
subject matter or the brief’s intended judicial audience. One recent survey
revealed that more than 93% of the responding practicing attorneys and judges
(both state and federal) believed that the briefs and memoranda they saw were
“marred by basic writing problems,” including a lack of focus (76.1%), failure to
develop an overall theme or theory of the case (71.4%), and failure to be
persuasive (66.4%).Another recent survey of 355 federal judges found that
“judges are critical of lawyers’ inability to use relevant, controlling authority to
The demands of a high volume law practice contribute to these drafting errors.
A heavy caseload allows little time for the brief writer to achieve the critical
distance from the document necessary to edit and revise effectively.
In addition, many attorneys have misconceptions about the role of a judge that
lead to basic drafting errors. Because judges want the result of a case to turn on
the merits, rather than on which party hired the better lawyer, they sometimes
reach out in cases where the briefs are poorly organized and opaque to
independently divine the applicable law and record facts. However, it is not the
judge’s job to sift through the advocate’s possible arguments to determine which
argument is strongest or to figure out how the law applies to the facts of the case.
Judges will not always have the time, the inclination, or the patience to figure out
what a disorganized brief’s arguments are or should have been.
In spite of the demands of a high volume law practice, lawyers can avoid
committing many common brief-writing errors by making a significant
attitudinal shift during the writing process. Lawyers should try to put themselves
in the place of their intended readers—the busy judge and the often
inexperienced law clerk. The ten most common ways to write a bad brief that the
authors have identified are all rooted in a failure to recognize that, like lawyers,
judges also have a high volume practice. And, unlike many lawyers who
specialize in one area, often judges are generalists who regularly confront widely
differing legal subjects. Judges need lawyers to explain to them clearly and
concisely what the applicable law is and how it applies specifically to the facts of
a particular case. When a judge who has spent all day trying a contract case sits
down to consider the merits of a free speech case at 4:30 p.m. that afternoon, he
needs help in recalling the relevant legal doctrines in free speech cases and
applying them to the facts of the pending case. The following explanation of
recurring brief writing misconceptions and errors can assist lawyers in assessing
the effectiveness of a brief from the perspective of the intended reader. This
article can help lawyers avoid ten of the most common ways to write a bad brief.
In federal district court in Philadelphia, the jury trial has begun. Here is the thrust of the defamation action, as reported by the Legal Intelligencer:
Professors David Rudovsky of the University of Pennsylvania Law School and Leonard Sosnov of Widener School of Law claim that West harmed their reputations when it falsely identified them as the authors of a poorly researched treatise update.
The pair say they had worked on updates to the treatise for years, but refused when West wanted to cut their pay. West's response, they claim, was to publish a "sham" update that still carried the professors' names but included almost no case updates.
Here is the plaintiffs’ complaint, which tells the story in some detail. It illustrates the proposition that sometimes a complaint is an important advocacy document and is more persuasive if it offers more than a short plain statement of the claim.
Tuesday, December 14, 2010
I just finished a book called "Reading in the Brain: The New Science of How We Read" that's a neuroscientist's effort to explain the science and evolution of why and how we read and write (did you know, for example, that the letters in the alphabet derive from ancient pictograms and that every alphabet on the planet shares similar graphic characteristics?). Towards the end, there was this quote from 'Ol Abe Lincoln which I thought some of you might enjoy:
Writing--the art of communicating thoughts to the mind, through the eye--is the great invention of the world. Great in the astonishing range of analysis and combination which necessarily underlies the most crude and general conception of it--great, very great in enabling us to converse with the dead, the absent, and the unborn, at all distances of time and of space; and great, not only in its direct benefits, but greatest help, to all other inventions. Suppose the art, with all conception of it, were this day lost to the world, how long, think you, would it be, before even Young America could get up the letter A with any adequate notion of using it to advantage?
When we remember that words are sounds merely, we shall conclude that the idea of representing those sounds by marks, so that whoever should at any time after see the marks, would understand what sounds they meant, was a bold and ingenious conception, not likely to occur to one man of a million, in the run of a thousand years. . . . Its utility may be conceived, by the reflection that, to it we owe everything which distinguishes us from savages.
Abe, you have no idea . . . .
Here's some pithy writing advice for students, practitioners and profs alike courtesy of the blog "Manage Your Writing":
Put it before them briefly so they will read it,
clearly so they will appreciate it,
picturesquely so they will remember it and, above all,
accurately so they will be guided its light.
Remembering it is easy. Doing it is another thing.
And speaking of Facebook (below), company creates bogus collegiate Facebook pages to attract students
From the New York Times:
High school seniors about to be admitted to college, take note: that authentic-looking Facebook page inviting you to join the university’s “welcome group” for the class of 2015 may be unauthorized.
A company that calls itself Roomsurf.com, and provides a service for prospective freshmen to find potential roommates for a fee, has created what appear to be official Facebook groups for next fall’s freshman classes at more than 150 colleges, including New York University, Middlebury, Wesleyan, the University of Texas and Pepperdine, according to college administrators, who noted a uniformity among the sites.
Each contains the school’s logo, as well as descriptions like, “Welcome SUNY Oswego Class of 2015” or “Welcome Tufts University Class of 2015.” None of the pages, though, make obvious reference to Roomsurf, or indicate that those who join the group will be sent promotions for the site, which was under construction Tuesday evening. (Its matching services range in price from $4.95 to $9.95, though typically the company has no authority over roommate pairings.)
J. D. Ross, a new media director at Hamilton College in upstate New York, helped trace the sites to Roomsurf — in part through an alias used on Facebook by the Web site’s founder, Justin Gaither. Mr. Ross said the company’s efforts via Facebook constituted “a deceptive marketing tactic.”
“It looks real,” Mr. Ross said, adding that the actual freshman-class groups offered officially by hundreds of colleges provide a level of mentoring that the Roomsurf groups could not possibly approximate.
You can read the rest here.
Here's an interesting article from the Chronicle of Higher Ed that reports on a recent survey that sought to measure "brand strength" among groups of students age 8 to 12 and 13 to 24. Among college age students, "Google" and "Facebook" have the strongest brand appeal, beating out traditional consumer goods like "iTunes," "Reese's Peanut Butter Cups," and "Oreos." One implication, according to the author of the CHE article, is that teachers should find ways to tap into students built-in affinity for online search engines (and social media). But students' search engine of choice also presents challenges to teachers as well:
When students consulted library books and resources to complete their homework, diversions stopped. They couldn’t use the books to communicate with buddies or download music. The books were for one thing–learning. Work and play didn’t meld.
Now they do. This is worse than the old problem of students doing homework with the television on, books open and papers spread out while Friends unfolds across the room. The older way is a form of multitasking, yes, an ineffectual one. The newer one, though, is multitasking of a different kind. With the laptop and Google, Facebook, etc., in action, multitasking of work and play takes place with the same instrument.
The new challenge, then, is this: with Google so popular and trusted and beloved, can teachers reduce the idle and distracting behaviors of the service and increase the intellectual behaviors of it?
And here are all the poll results which show how childrens' interests shift as they get older from things they eat or passively watch/listen to - to things they "do" (like search engines and social media):
For 8- to 12-year-olds, the findings aren’t surprising. It’s all entertainment and junk food:
1. Nintendo Wii
5. Disney Channel
7. Nintendo DS
9. Toys R Us
10. Cartoon Network
For the next age group, 13- to 17-year-olds, a different screen time emerges, along with a drop in junk food (although one of them still tops the list).
1. Reese’s Peanut Butter Cups
7. Hershey’s Milk Chocolate
The significance grows in the next age group, 18- to 24-year-olds, for which Google rises to No. 1 and is followed by another tool often used by teachers for instructional purposes.
9. Reese’s Peanut Butter Cups
You can read the rest here.