March 8, 2011
Persuasive Legal Writing
Shameless plug department: Louis J. Sirico, Jr. & Nancy L. Schultz, Persuasive Legal Writing (3d ed. Wolters Kluwer). Here's the publisher's write-up:
Persuasive Legal Writing offers complete instruction, exercises, and examples to teach students how to frame and assert arguments. Starting with an introduction to classical rhetorical devices and the psychology of persuasion, authors Sirico and Schultz unpack every aspect of persuasive writing, from structuring sentences and paragraphs to writing style, tone, storytelling, audience analysis, the ethics of argument, and citing authorities—all in a remarkably concise format. Persuasive Legal Writing, Third Edition, features:
• A consistent emphasis on the three keys to persuasive writing
1. writing simply and clearly
2. arguing ethically
3. writing for your audience
• How to focus attention on your argument by structuring sentences, paragraphs, and documents
• How to achieve an appropriately assertive tone
• When and how to cite authorities to support you argument
• How to make equity and policy arguments
• A helpful summary of common pitfalls in persuasive writing
• Generous use of examples throughout the text
• Integrated writing exercises for developing advocacy skills
• A capstone exercise at the end of the book
• An attractive new cover and interior design
• Enhanced and streamlined examples that are even more student friendly
• New examples from briefs and court opinions
• A new chapter on narrative and storytelling in persuasive writing
American Association of Law Libraries Task Force Outlines Law Student Legal Research Competencies
The AALL’s Law Student Research Competency Task Force has prepared draft legal research competency principles available here. Just last week, the task force hosted a blog to track comments on the proposed standards. A proposal from the task force will be submitted to the ABA Executive Board this April.
The draft competencies include the following principles:
1. A successful researcher should possess fundamental research skills.
2. A successful researcher should implement effective, efficient research strategies.
3. A successful researcher should critically evaluate legal and non-legal information and information sources.
4. A successful researcher should apply information effectively to resolve a specific issue or need.
5. A successful researcher should have an understanding of the ethics of information use and be able to distinguish between ethical uses and unethical uses of information. A successful researcher should understand the legal issues that arise from information discovery, use, and application.
According to the charge to the task force:
“Law Student Research Competency Standards might be used in law school curriculum discussions. They may be used in law firms as part of training programs. Research Competency Standards might also be used by bar admission committees to evaluate research skills of applicants and by the ABA to meet the learning outcomes in proposed standard 302.”
Hat tip Law Librarian Blog
March 7, 2011
The legal services sector lost 2,900 jobs last month
The United States economy may be showing signs of improvement, but in at least one way the legal sector is not enjoying the fruits of that recovery: the industry shed 2,900 jobs in February, according to the monthly employment report from the Bureau of Labor Statistics.
The latest BLS report is a harsh dose of reality, given that the adjusted January numbers that it contains show that the legal industry actually gained 500 jobs that month--a modest boost that pales next to the job losses of both November (-900) and December (-1,600). (Click here for our January jobs report and here for our December coverage.).
Happy Birthday, Mr. Justice Holmes
March 8 marks the birthday of Justice Oliver Wendell Holmes, Jr., born 1841, passed on 1935. He served on the Court from 1902 until 1932. To commemorate his birthday, we offer a few of his observations collected on “The Quotations Page.” (Please pardon the underlining.)
We are all tattooed in our cradles with the beliefs of our tribe; the record may seem superficial, but it is indelible. You cannot educate a man wholly out of superstitious fears which were implanted in his imagination, no matter how utterly his reason may reject them.
New scholarship of interest: "The citation of blogs in judicial opinions"
This one is by Professor Lee Peoples of Oklahoma City U. School of Law and can be found at 13 Tul. J. Tech. & Intell. Prop. 39 (2010). From the introduction:
A blog is a Web site where one or more authors publish written commentary. The commentaries are published in reverse chronological order. Blog authors are typically called bloggers, and the commentaries they publish are called blog posts. According to BlogPulse, a Web site that tracks blogs, there are currently over 150,000,000 blogs on the Internet. A blawg is a blog about law. There are approximately 2800 blawgs in existence today. It is estimated that over 235 blawgs are written by law professors and at least eight are written by judges.
Blogs are used by lawyers, scholars, and others who want to have an impact in judicial decision making. Blogs have been heralded as a replacement for law review case commentary, as a vast amicus brief, and have even been compared with the Federalist Papers. Traditionally, scholars who wanted to have an impact on issues coming before the courts would try to anticipate what types of issues courts might face in future cases, spend one year or more writing and publishing an article addressing these issues, and finally hope that it would be read by a judge. The painstakingly slow law review publication process, when compared with blogs, "feels as ancient as telegrams, but slower." Prominent blogger Eugene Volokh imagined how blog posts might be a more effective way to reach judges in his article Scholarship, Blogging, and Tradeoffs: On Discovering, Disseminating, and Doing. Volokh explained that law clerks read blogs and if they happen to read a post about an issue facing the court, they might pass it along to a judge.
The Supreme Court case of Kennedy v. Louisiana is perhaps the most well-known example of a blog post that has influenced a judicial opinion. In Kennedy, the Court held that it was unconstitutional to impose the death penalty for the crime of child rape. The majority and dissenting opinions erroneously declared that there was no federal law permitting the imposition of the death penalty for child rape. A few days after the opinion was released, Dwight Sullivan, a lawyer specializing in military justice, pointed out on his blog that in 2006, Congress revised the Uniform Code of Military Justice to include death as a punishment for the rape of a child. The blog post was read by another military justice lawyer who mentioned it to his wife, the preeminent Supreme Court journalist, Linda Greenhouse. Greenhouse broke the story on the front page of the New York Times. Louisiana petitioned the Court for rehearing. The Court accepted briefs on the issue and ultimately modified its opinion acknowledging the omission of the 2006 law, but refused to change its initial decision in the case. This example, although a bit embarrassing for the Supreme Court and the lawyers involved in the case, illustrates the potential that blogs have to impact real cases.
Two previous surveys have counted the number of times specific blogs were cited in judicial opinions. No study has closely examined the citation of blogs in judicial opinions to discover why or how courts are citing blogs. This Article explains the results of my exhaustive research into the citation of blogs in judicial opinions. I began my research by exploring in further detail the blog citations in the forty cases identified in the two previous surveys. I updated the previous surveys by searching for cases citing blogs after the two surveys were released. In Westlaw, I searched the database ALLCASES for the terms "blog" or "blawg" or "blogger" or "typepad." I ran an identical search in the LexisNexis database, Federal & State Cases Combined. The LexisNexis and Westlaw results were compared to ensure that the results were comprehensive. These searches returned a total of 287 opinions. I read through these opinions and identified specific opinions citing blogs as secondary authority to support the court's reasoning or analysis, opinions that cited blogs for factual information, or opinions that cited blogs as the source of documents. Forty-five out of the 287 opinions fell into one of these three categories. I did not closely examine the 242 opinions that did not fall into one of these three categories. These 242 opinions typically cited blogs in dicta or to define a nonessential term.
Part II of this Article discusses the citation of blogs for their discussion of substantive legal issues. The unique status enjoyed by several boutique blogs is examined and the value of blogs as interactive sources is explained. Part III discusses the citation of blogs for factual information and the impact of these citations on the law of evidence, ethics of the judiciary, the constitutional and procedural rights of litigants, and the judicial role in the common law adversarial system. Finally, Part IV explores the methods used by courts to cite blogs, recently released blog citation rules, and solutions for preserving blog content.
Making the Most of LinkedIn
LinkedIn in often described as “Facebook for professionals.” Although I don’t see much value in it for me as an academic, its value may be substantial for many of its 17 million users. According to the Immigration Daily blog, here are 8 favorite ways to use it.
1. Get professional introductions.
2. Make connections.
3. Ask your network a question.
4. Get testimonials about you from others.
5. Conduct a job search.
6. Find potential contacts.
7. Provide links to your web page and blog
8. Join a special interest group.
The posting also offers general tips and facts about LinkedIn.
Research Tips to Help Law Students Prepare for a Job Interview – Part 2 of 2
This two-part post offers research tips for law students as they prepare for job interviews. The first post included tips for researching biographical and background information on potential employers. Part two offers advice about deeper research recommended as a student prepares for a job interview.
After spending some time looking through a potential employer’s website and at any biographical data available in a directory, students preparing for a job interview should also research case law and litigation, scholarship, and news sources for additional information about the interviewers.
Case Law and Litigation
• When searching case databases on Westlaw or LexisNexis, use fields and segments to find only cases argued by a particular attorney (attorney or counselor field) or decisions authored by a particular judge (judge field).
• Don’t look only at the case opinions, but take time to look at briefs, motions, pleadings and verdicts that are also available on Westlaw and LexisNexis.
• Mealey’s Litigation Reports on LexisNexis also provides a wealth of information about key cases.
Scholarship and Publications
In addition to researching the case law and litigation background of a potential employer, students should also read what an interviewer has written. Students can search Google Scholar (by author), law review databases, and should also search local bar association publications. A quick search in a legal periodical index (such as Index to Legal Periodicals or LegalTrac) could locate articles that will provide for interesting conversation at a job interview and will certainly demonstrate interest in the employer.
Students preparing for an interview should also run searches in local newspapers, Google News, and/or the news databases available through Westlaw and LexisNexis. Searching by attorney name or firm name will yield results about recent newsworthy events.
Finally, searching social media can also provide valuable insight into current events and information about the firm culture. Some resources to try include Google Blog search, LinkedIn, Facebook, and Twitter.
Spending some time doing this type of background and current news research will demonstrate interest in the employer and hopefully lead to active discussions during the interview. It doesn’t hurt to demonstrate research skills either!
March 6, 2011
Rise of the lawyer-bots; computers seem poised to replace (some) lawyers sooner than predicted
It was less than two months ago that WilmerHale announced a new career track attorney position (here too) for lawyers to do discovery work full time at about 1/3 the salary of regular-hire associates. The announcement was not significant in the sense that for years law firms have been hiring contract attorneys to do document review or outsourcing that kind of work to offshore legal service providers. The announcement was significant, however, in that it tends to validate Richard Susskind's prophecy that the legal services market will become bifurcated into those lawyers who provide "customized" service to (mostly wealthy) clients and those who will be paid a lot less to handle the routine, repetitive work that can be farmed out to any number of subcontractors. (Despite what Susskind says there will always be a need for "customized," high quality legal work at every client price-point. I think his argument is that a lot of legal work that has traditionally been the bread and butter existence of many lawyers can be commoditized and handled a lot more cheaply by subcontractors who will threaten the livelihood of lawyers who can't adapt).
After IBM's Watson debuted on Jeopardy a few weeks ago, there was lots of talk in the blogosphere about how long it would be until computers started replacing lawyers (here, here and here). A few of those articles noted that computers are now, or will be shortly, doing some of the work that has traditionally been done by accountants and doctors. When The End of Lawyers was published last year, Susskind predicted that by 2020 we would all have desktops in our offices with the computing power of the human brain. That's only 9 years away and given the rapidity of technological advances, it's probably more likely than not that we'll have that kind of computer power on our desks in a cost effective package even sooner than predicted.
Apropos to that, on Saturday the New York Times ran a story called "Smarter than you think: Armies of expensive lawyers, replaced by cheaper software" which suggests that the WilmerHale model may be already obsolete. Of course lawyers will never be completely replaced by software. There will always be a need for flesh and blood lawyers to run to court, meet with clients, negotiate contracts, conduct depositions, etc. The more likely threat, I think, is incremental. Instead of a 5 person law firm adding another associate to do the routine tasks that a new lawyer typically does, the firm will instead buy software that will do legal research, draft contracts, predict case outcomes for clients and even write briefs perhaps better than a wet-behind-the-ears associate. Plus the firm won't have to pay benefits to the computer or worry about whether it will leave one day taking valued clients with it.
This is only going to intensify the pressure already on the legal job market and on law schools to justify the cost of a J.D. If we can put aside for the moment the anxiety that comes from such rapid and profound change, it's an incredibly exciting moment in history as we watch the transformation now taking place in the legal services industry. Who would have thought these changes possible just 10 years ago! Where will we be in the next 10 years?
This week's The Amazing Race update - Cara and Jaime squeak by!
Cara and Jaime are still in the competition but just barely! After getting ditched (boo!) by a pack of competitors in Tokyo, they had a minor traffic accident which caused them to drop to last place when the police showed up to write a report. Things looked grim as they headed into the final "roadblock" challenge but fortunately they were able to find the "frog of luck" before the second-to-last-place father and son team and thus narrowly avoided elimination. If you have no idea what I'm talking about (but still care), click here to watch a clip of tonight's episode (the full episode should be posted here by tomorrow).
The Amazing Race is very exciting to watch in that a single misstep or unforeseen circumstance can completely change a team's fortune. Just because Cara and Jaime finished second to last this week doesn't mean they can't win next week's segment. Remember to watch on Sundays at 8:00 p.m. EST on local CBS affiliate.
Tips for improving positive feedback
Delivering positive feedback is a critical technique for helping people perform at their best. Everyone likes to receive a pat on the back once in a while but not everyone knows the best way to communicate it. Positive feedback is a skill.
The following advice for making positive feedback more effective is directed at business managers but you may also find it helpful in your capacity as a teacher or employer. From the Harvard Business Review:
- Make a personal connection early on. Your associates can tell when you are being direct, sincere and authentic. When you are, you establish trust. When you aren't, you don't. I have developed a practice that helps get things out in the open the moment a new hire meets me — I declare myself. I tell the person I'm meeting about my background, my values, my leadership philosophy, my expectations and even my favorite quotes. I then ask him or her to share something with me. My goal is to take the mystery out of our relationship as quickly as possible. This has proved to be a very powerful tool for relationship-building.
- Look for opportunities to celebrate. My executive assistants and I spend a good 30 to 60 minutes a day scanning my mail and our internal website looking for news of people who have made a difference at Campbell's. For example, as of this writing I just learned about a woman named Patti who just got promoted in our customer service area, so I made a note to congratulate her.
- Get out your pen. Believe it or not, I have sent roughly 30,000 handwritten notes to employees like Patti over the last decade, from maintenance people to senior executives. I let them know that I am personally paying attention and celebrating their accomplishments. (I send handwritten notes too because well over half of our associates don't use a computer). I also jump on any opportunities to write to people who partner with our company any time I meet with them. It's the least you can do for people who do things to help your company and industry. On the face of it, writing handwritten notes may seem like a waste of time. But in my experience, they build goodwill and lead to higher productivity.
Enjoy reading the rest here.
The critical importance of a good night's sleep
Which do you think is more important to working at your peak - food or sleep? According to this article from the Harvard Business Review, sleep is much more important and most of us don't get nearly enough. Read on and be prepared to be surprised.
We continue to live by a remarkably durable myth: sleeping one hour less will give us one more hour of productivity. In reality, the research suggests that even small amounts of sleep deprivation take a significant toll on our health, our mood, our cognitive capacity and our productivity.
Many of the effects we suffer are invisible. Insufficient sleep, for example, deeply impairs our ability to consolidate and stabilize learning that occurs during the waking day. In other words, it wreaks havoc on our memory.
So how much sleep do you need? When researchers put test subjects in environments without clocks or windows and ask them to sleep any time they feel tired, 95 percent sleep between seven and eight hours out of every 24. Another 2.5 percent sleep more than eight hours. That means just 2.5 percent of us require less than 7 hours of night a sleep to feel fully rested. That's 1 out of every 40 people.
When I ask people in my talks how many had fewer than 7 hours of sleep several nights during the past week, the vast majority raise their hands. That's true whether it's an audience of corporate executives, teachers, cops or government workers. We've literally lost touch with what it feels like to be fully awake.
Great performers are an exception. Typically, they sleep significantly more than the rest of us. In Anders Ericcson's famous study of violinists, the top performers slept an average of 8 ½ hours out of every 24, including a 20 to 30 minute mid-afternoon nap some 2 hours a day more than the average American.
You can continue reading the article here and learn about some tips to help you get the recommended 8 to 9 hours of sleep you need each night. Maybe you'll have better luck at it than me.
Tips on Networking
Networking can be uncomfortable, particularly for those of us on the shy side. Still, a lawyer must build connections in order to build and maintain a practice. Here, from consultant Kimberly Alford Rice, are some tips.
1. Even when you are a guest, behave like a host. Make introductions. Show people around the room.
2. Offer advice and assistance whenever possible.
3. Listen actively to others so you learn how you can help them.
4. Develop “icebreaker” questions in advance.
5. Before you arrive, make it a goal to meet and talk with a certain number of people.
More Sunday funnies: "The writing professor versus the graffiti artist"
It's spring break - time to have some fun.
Warning - rude word ahead.
Sunday funnies: "Professor! But taking notes is like downloading with freakin' dialup!"
Courtesy of Inside Higher Education.