April 23, 2011
A happy Easter to our readers who celebrate the holiday. Here is my favorite Easter poem.
Loveliest of trees, the cherry now
Is hung with bloom along the bough,
And stands about the woodland ride
Wearing white for Eastertide.
Now, of my threescore years and ten,
Twenty will not come again,
And take from seventy springs a score,
It only leaves me fifty more.
And since to look at things in bloom
Fifty springs are little room,
About the woodlands I will go
To see the cherry hung with snow.
One possible solution to grade inflation
Law school grade inflation is driven, in part, by complaints from students that they can't compete for jobs with students from rival schools that have a higher curve. (We chronicled the problem here). I've never completely bought into that argument on the assumption that most employers care more about class rank than GPA (since GPA is an unreliable measure of academic achievement due to grade inflation. Ironic, isn't it?).
Here's another solution which the University of North Carolina is going to try this fall; include the median grade and student rank for every class on a student's transcript (which, in the case of law students, they can transmit to employers). The Chronicle of Higher Ed provides more details of the UNC plan:
Beginning in 2012, each student's transcript will include a "Schedule Point Average" both for individual terms and cumulatively. That number represents the grade-point average for the average student taking the same courses. The Schedule Point Average will give an idea of how rigorous a student's schedule is and how that student performed compared with others in the same courses. (Think strength of schedule for academics, not just basketball.)
Transcripts will also include a breakdown of how often a student has scored above, at, or below the median grade in a course.
"This can only help students as an aggregate, because it makes grading information more objective and nonbiased," said Andrew J. Perrin, an associate professor of sociology and chair of the committee putting the new transcript system into effect. "There are less incentives for students to take courses that they're not interested in just in order to change their GPA's, which we know is a very common practice."
Velly clever indeed. You can read more here.
April 22, 2011
E-Recycling Law is a Success
On January 1, 2010, Wisconsin’s E-Cycle Law went into effect. Starting on September 1, 2010, it banned placing certain electronics in the trash or in landfills. Banned items include computers, printers, and DVD players. The law has proven a success:
According to the E-Cycle Wisconsin 2010 report, more than 24 million pounds of total electronics were recycled in 2010 – 10.3 million in the first half of the year and 13.8 million in the second half.
Here is the story from the Wisconsin Technology Network.
When PCs first became popular, we were told that as we purchased new, improved models, there would be a market for the old ones in less developed corners of the world. That confident prediction seems to have been a pipe dream. However, the recycling of component parts has become a business.
The 300 Word Essay, with a Metaphor
Recently, wordsmith William Zinsser told the story of writing a 300 word essay on Ellis Island for a travel magazine. Here is the first paragraph of the essay:
Of the two highly symbolic pieces of land in New York harbor, the more obvious icon is the Statue of Liberty; the lady embodies every immigrant’s dream of America. But I’ll take Ellis Island—that’s an icon with its feet in reality. Almost half the people now living in America can trace their ancestry to the 12 million men and women and children who entered the country there, mainly between 1892 and 1924. “It’s their Plymouth Rock,” says M. Ann Belkov, superintendent of the National Park Service’s Immigration Museum, which occupies the distinctive red brick building, now handsomely restored, where the immigrants were processed. “Tourists who come here are walking in their families’ footsteps,” Belkov told me. “Three of my four grandparents first stepped on land in the U.S.A. in this building.”
Here are Zinsser’s comments on the paragraph:
The first paragraph is packed with necessary facts about the site: its setting and historical importance. It also contains an ideal summarizing metaphor (“It was their Plymouth Rock”) and a tremendous fact about American possibility: in two generations the granddaughter of three of those immigrants had become superintendent of the place where they “first stepped on land in the U.S.A.”
What strikes me most is the metaphor linking these immigrants with the Pilgrims who stepped on Plymouth Rock. If I were advocating for immigrants in today’s controversies, I certainly would find a way to invoke that metaphor.
For the rest of the article and Zinsser’s commentary on it, please see his posting on The American Scholar online.
ABA indicates willingness to loosen restrictions on distance learning for law schools
From the recently concluded "Future of Legal Ed" conference as reported by the National Law Journal:
[T]he American Bar Association is considering loosening up its accreditation rules, which now prevent law students from taking more than 12 credit hours via distance education. The ABA's Standards Review Committee has proposed boosting that limit to 20 credit hours, although it does not appear poised to offer accreditation to wholly online law schools, such as Concord Law School.
Friday Fun: The Winner of the annual ABA "Peeps" in law contest
It's "Don't Touch My Peeps, Man!"
And here's the description that goes with it:
In 2010, the Transpeeptation Security Administration (TSA) introduced aggressive peep-down procedures for travelers who declined the full-peep scanners. Soon the country became fascinated by an amateur video showing a security encounter at San Diego International Airpeep in which John Tyner had used his cell phone to record his own peep-down, warning a TSA agent, “Don’t touch my peeps!” The video and the colorful phrase went viral on YouTube, touching an American nerve sensitive to the demise of peeple privacy in the land of the free. TSA’s San Diego security director informed reporters that it would investigate peepenger Tyner and he would face an $11,000 fine if the agency decided to sue him for violating federal law.
Check out the other entries and reader vote totals here.
How do clients choose their lawyers?
We've previously blogged about how clients make the decision about which lawyer to hire when searching online. Here's some insight into how clients make those decisions in the brick and mortar world courtesy of the blog Attorney@Work:
1. Clients Want Experts, Not Generalists
2. Clients Give Work to People They Know and Like
3. Clients Give Work to Trusted Personal Counselors
To find out more, click here.
April 21, 2011
April 22: Earth Day
The first Earth Day celebration took place in 1970, resulting from the efforts of Senator Gaylord Nelson of Wisconsin. Senator Nelson also urged amending the U.S. Constitution to guarantee everyone an inalienable right to a decent environment. Here is a link to his landmark speech. Although the federal amendment never made its way into the federal constitution, many states incorporated a similar amendment in their respective state constitutions. Here is Pennsylvania’s:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Brain Science as a Legal Skill
In a post below, Professor Sirico has discussed how a new discovery in genetics and its effects on human behavior is affecting our notions of criminal conduct. This is a specific example of how the brain sciences (neuroscience, genetics, evolutionary biology, evolutionary psychology, etc.) are changing how we view law. Knowing the basics of neuroscience and behavioral biology is quickly becoming a necessary legal skill. Simply stated, how can we have an accurate view of law if we do not have an accurate view of human behavior?
Articles on brain sciences and the law have ranged from criminal liability to torts to contracts and even to jurisprudence. For an introduction to neuroscience and the law, see Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen Jones et. al. For an introduction to behavioral biology and the law, see my article Introduction to Behavioral Biology for Legal Scholars . Finally, for an article on behavioral biology and jurisprudence, see The Molecular Concept of Law by Hendrik Gommer.
Does the Warrior Gene Make You Violent?
A variant of the MAO-A gene is associated with violent behavior, particularly when it exists in an individual who has been subjected to child abuse. Should someone with this gene and this history be able to raise a defense against criminal conduct? The scientific jury seems to still be out on this one. Here is a story from 2010 in which the warrior gene defense convinced a jury to find voluntary manslaughter, as opposed to murder, in a particularly grisly case.
Happy Birthday, Queen Elizabeth
NALP survey of law firm associates finds they think clinical experience useful but not 'trial ad" or pro bono work
A hat tip the online ABA Journal for alerting us to this report by the National Association for Law Placement called the "2010 Survey of Law School Experiential Learning Opportunities and Benefits." According to the ABA Journal, "the survey was sent to about 500 U.S. and Canadian law firms; about 930 associates responded. Almost 50 percent of the responding associates were from firms of 500 or more lawyers."
Here's the executive summary from the report itself:
Much debate has ensued during the last few years regarding the effectiveness of law school in preparing new lawyers for the practice of law and the advantages of experiential learning opportunities offered during law school. The data from this study suggest that some, if not all, of these “hands-on” or simulated learning opportunities, whether required or optional, are indeed instrumental in preparing new associates for the demands of the practice of law. The respondents, all associates in private law firms, provided a new view of some of the various
experiential opportunities offered in law schools, and of whether these experiences affected their development and preparedness as a lawyer.
Participation in and Benefits of Legal Clinics
Slightly under one-third (30.2%) of the survey respondents reported that they had
participated in at least one legal clinic during law school. Within this group, 63.1% rated these clinics “very useful” using a scale of 1 to 4 (with 1 being “not useful at all” and 4 being “very useful”). Only 3.9% of the respondents in this group rated the clinics as “not useful at all.” Participation in and Benefits of Externships/Field Placements Tracking similarly to participation in legal clinics, 36.2% of the associate respondents reported having taken part in an externship or field placement during law school. Not surprisingly, participation in these programs increased for students who attended law school in metropolitan areas with populations over 100,000. Overall, roughly 3 out of 5 (60.1%) associates who reported participating in at least one externship or field placement rated the experience as “very useful.”
Participation in and Benefits of Practice Skills Courses
The majority (70.1%) of the responding associates reported that they had taken at least one practice skills course during law school, with 40% reporting that they had taken three or more practice skills courses. The most common practice skills course taken by this group was Trial Advocacy. Surprisingly, the data reveal that the associates who reported participating in at least 7 one of these courses considered them to be only moderately useful. Unlike the usefulness rating reported by associates who had participated in legal clinics and/or externships, only 35.8%
considered their practice skills course(s) to be “very useful.”
Participation in and Benefits of Pro Bono Work During Law School
The data reveal striking differences when it comes to participation in and usefulness of pro bono work during law school compared to other experiential or “hands-on” learning opportunities. The vast majority of respondents (88.3%) reported that pro bono work during law school was not required. Within the group who reported doing pro bono work, either voluntarily or as part of a curriculum requirement, over half (59.3%) said that they performed fewer than 40 hours of pro bono work during their law school tenure. When asked to rate the
general usefulness of pro bono work in preparing them for private practice, associates ranked the experience(s) significantly lower, an average of 2.2 on a scale of 1 to 4 (with 1 being “not at all useful” and 4 being “very useful”), compared to the overall usefulness ratings of legal clinics (an average of 3.4), externships or field placements (an average of 3.4), and skills courses (an average of 3.1).
The full report contains many more findings on all topics noted in the Table of Contents and greater detail on the key findings noted in this summary.
Check out the full report here.
Recently concluded "Future of Legal Ed" conference offers many ideas to improve skills training
We've blogged before about practitioners in different locations banding together to share expertise and resources by forming "virtual" law firms (here, here and here). A group of six law schools is considering doing something similar according to this report from the National Law Journal:
[New York Law School Dean] Matasar announced a new consortium of six law schools that have agreed to consider collaborating on new technology initiatives. He said the group would look at creating an online platform for delivering distance education that the schools themselves would own. This would allow experts from different law schools to teach across campuses.
Another popular idea to emerge from the conference is something called Apps for Justice:
Apps for Justice: Learning Law by Creating Software, [was] created by a team of educators and business people headed by Chicago-Kent College of Law professor Ron Staudt. The project's purpose is twofold: Students learn about technology and substantive law by creating software applications that walk users through legal scenarios or offer other legal support, while lawyers and the public benefit from online resources that would help improve access to justice for everyone.
"They can focus on tools practitioners can use themselves to 'work smarter'; they can focus on tools that legal advocates and other kinds of helpers can use to assist those with legal needs; they can focus on systems that self-helpers can use to address their own legal problems and opportunities," the proposal reads.
The Apps for Justice team proposed launching pilot programs at five law schools with a grant from the Legal Services Corp. The programs would harness distance-learning technology. The team estimates the two-year cost of the program at $440,000.
Read more about that here.
Study shows most upper class law students use laptops for non-class related purposes
A hat tip to the online ABA Journal for alerting us to this draft study by St. John's Professor Jeff Sovern available on SSRN here. It's still a work in progress but his conclusion, based on classroom observations, that most upper class students use laptops for non-course related purposes is consistent with the studies I've seen, including one that used spyware to track students' websurfing habits. Interestingly, Professor Sovern found that first semester 1L students surfed much less than upper class students because they were more motivated to get good grades.
From the article's abstract:
This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings: •More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops. •Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class. •For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level. •With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention. • The format used to convey information - lecture, calling on students, or class discussion - seemed to make little difference to the level of attention. •Student attentiveness to the facts of cases is comparable to their overall attention levels
The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.
Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.
April 20, 2011
I hate my computer
I might have to sell it
It never does what I want it to
Only what I tell it.
How Cross-examination Wins a Hopeless Case
You are a very new attorney, and the court crier grabs you to represent a criminal defendant in a preliminary hearing on case involving a robbery and violent beating. The elderly victim tells the story in great detail and has identified the perpetrator. Yet, through no fault of your own, your cross examinations leads to a dismissal of the charges. Here is Stephen LaCheen’s first person story from the Philadelphia Lawyer.
Music and Legal Writing
In the past, I have taught my students to think of legal writing as musical composition. I have advised them to read their writing out loud and to listen careful. They should be listening for how the sentences fit together, how their voices rise and fall, how different punctuation creates different types of pauses, etc.
Now there is an article that discusses the relationship of music and law in detail:
Abstract. The neurological mechanisms that operate to perceive and be influenced by music are the same ones (or many of the same ones) that operate in the brain for language. Rhythm, flow, and tone are essential components of music, and, therefore, essential components of well-written prose. Such components must be consciously incorporated by attorneys into their persuasive legal writing. By doing so, legal writers encourage readers to pay more attention to the text, facilitate a more enjoyable experience, and entice readers to ultimately agree. The paper offers background on evolutionary psychology. It explores how human and protohuman brains evolved through natural selection and the scholarship of biomusicology and explains the neurological overlap of music and language - musilanguage. The paper then examines the writings of Cardozo, Easterbrook, Hemingway, Jackson, and others to reveal how they effectively incorporated musilanguage components of rhythm, flow, and tone into their writings. Finally the article provides practical ways for instructors to teach rhythm, flow, and tone in legal writing and demonstrates how attorneys can incorporate these musical elements in their writing and how the use of musically derived devices make legal writing more persuasive.
Blogs and Facebook Posts as Evidence in Lawsuits
Patrick DiDomenico at LawyerKM uses a recent story from a NY court to teach social media lessons:
The New York Daily News reports that a Richmond County Supreme Court Judge terminated a woman’s $850 per month alimony payment after she posted evidence of ability to work on a blog and on Facebook
Here are DiDomenico’s lessons on using social media:
- Assume that whatever you post online is public and that anyone can find it. Indeed, the ability for people to find your stuff is the purpose of a blog, or other website. If you want to keep something private, keep it offline.
- Don’t assume that your social networking is private — even if you restrict your posts to a small number of Facebook (or other social network) friends; you never know how what you write may surface. McGurk certainly didn’t expect her Facebook comment to be read by her ex husband.
- If you’re a lawyer, use social media as a tool to help win your case.
It almost makes me miss practice!
The risk of academic burnout is real; advice on how to prevent it
From Inside Higher Ed:
The days when academe was a low-stress working environment are over, with "burnout" levels now comparable with those in other service sectors, according to an international study.
The analysis, which is based on 12 peer-reviewed studies in the United States, Britain, Canada, South Africa, Spain, Turkey and the Netherlands, likens levels of burnout among those who teach in higher education to those of schoolteachers and health professionals.
. . . .
The authors [of the study] also attempt to pinpoint the key factors that push some academics into a state characterized by "the depletion of emotional reserves (emotional exhaustion), an increasingly cynical and negative approach towards others (depersonalization) and a growing feeling of work-related dissatisfaction."
The study, "Burnout in university teaching staff: a systematic literature review," was published in the journal Educational Research. The research project was led by Noelle Robertson, senior lecturer in clinical psychology at the University of Leicester, and a master's student there, Jenny Watts. Robertson and Watts, who describe their work as the first survey of the extent of burnout among full-time, non-medical university teaching staff, report that younger staff appeared more vulnerable, suffering from greater "emotional exhaustion."
. . . .
This could be because younger staff have more contact with students, but also because more experienced colleagues have developed better coping strategies.
Gender seemed to have most impact on the way burnout revealed itself, the study suggests. Male lecturers typically had higher depersonalization scores, for example, while their female peers tended to suffer more emotional exhaustion.
This probably reflected, the authors suggest, the draining effect on women who were having to "juggle multiple roles at work and at home," on the one hand, and their reluctance to adopt "a distant, indifferent professional persona" on the other.
The researchers also report that "staff exposure to high numbers of students, especially tuition of postgraduates, strongly predicts the experience of burnout." However, they suggest that lecturers with qualities that might make them particularly suited to the job suffered more than their less engaged colleagues. The quality of "openness" may "make [academics] appealing tutors, encouraging greater interaction with students," but it also appeared to "predispose teachers to burnout," the paper says.
So how can universities and academics prevent ever-greater incidence of burnout?
The first step, said Robertson, was "recognition that stress is an issue, that the demands of certain roles can overwhelm the resources that people have to deal with them."
"Counseling services, stress-busting activities, alternative therapies, peer support and active mentoring" could all help, she added. It was also imperative to "foster and enhance collegiality, which used to be at the heart of university life." In particular, teaching, which typically came a distant second to research in terms of prestige and promotion criteria, had to be "explicitly valued."
Robertson also suggested that distance and e-learning might be more stressful than face-to-face teaching, pointing out that “being at the end of an email chain might be less satisfying than reciprocal interaction.”
With students increasingly consumerist, it was important to "set the boundaries of respectful discourse on both sides." But she added: "We academics have to toughen up."
You can read the rest here.
More advice on public speaking (for lawyers and teachers)
Six common mistakes that destroy a speaker's credibility and impact.
* Failure to decide what result you want out of the speech.
Every speaker should be looking for measurable results in terms of outcome. Do you want business cards? Meetings? Or some way to capture interest, build relationships and follow-up? What do you want the listener to be able to do as a result of the program? What concepts do you want them to walk away with?
* Failure to pay attention to the audience.
Put yourself in the shoes of your audience and ask What Here Applies to Me? Hampton calls this the WHAM!factor. You need to move past the golden rule of "what would I want" to "what would they want?"
* Failure to select a dominant image for people to take away.
What is the image people are going to take away with them? What is going to be at the top of their minds that will immediately remind them of your key message? If you have the right image that people remember, you have a good chance of success, even if they don't remember much else.
* Failure to have a good opening.
Your hook shouldn't be, "Prepare for something boring," or, "I didn't have time to prepare for this." Use a personal experience, story or some other narrative to grab the attention of your audience. Something that will pull their attention away from whatever else is on their minds to what you are saying. Caution: Make sure your opener relates to your message; no jokes just for the sake of being funny.
* Use of bullet points.
Bullet points are not visuals. Visuals mean that there is something to see. Bullet points in slides actually reduce retention. If you presentation is laden with bullet points, time to go back to the drawing board, literally, and come up with photos or diagrams to represent your content.
* Using sentences that go on forever and start slow.
Attorneys are especially prone to this mistake. Keep your sentences short. And get to the point; don't make your audience have to listen to lengthy qualifiers before they even know what you're talking about.
Avoiding these six mistakes is just the beginning. Doing so won't make you great speaker by itself, but it will aid you in giving a speech the audience will remember and that helps you get the result you want.
You can read more here.