Wednesday, May 18, 2011
Are you a worrier? I know I am. I've always thought that being a worrier makes someone a better lawyer. Of course, everything needs to be taken in moderation. A little worry is a good thing - I mean, sometimes the sky really is falling. But worrying too much is counterproductive, unhealthy and in extreme cases can be debilitating. Here's some good advice about how to manage your inner worrier:
- Evaluate the relative significance of the things you're worrying about. Don't give a disproportionate amount of worry to small problems. "Box up" your small worries so that they don't spread. Make a conscious effort to confine your fears and anxieties to the subject at hand. Keep reminding yourself that a problem in one area does not necessarily mean that there's a problem in another area. Stay focused on the specific issue.
- Make a specific agenda and specific tasks associated with the agenda so that you are less likely to distract yourself with a less critical issue.
- Address the issue causing the worry quickly and decisively. I know this isn't always easy, especially for high-need-for-achievement personalities who can analyze an issue to death. Increasingly, professionals in positions of responsibility are facing right-versus-right decisions — there is no perfect answer. Or they're facing wrong-versus-wrong decisions — either choice is going to have unpleasant repercussions. In these instances, you have to halt your analysis and rely on your instincts; don't be caught in the indecisive middle.
You can read more courtesy of the Harvard Business Review here.
Tuesday, May 17, 2011
Our commencement speaker, the Honorable Michael J. Melloy of the Eighth Circuit Court of Appeals, had some practical advice for the new graduates. It was refreshing to listen to Judge Melloy speak to the graduates about the importance of friends, family, collaboration, community involvement and work/life balance. He gave several examples from his personal path that I hope resonated with the students. The graduates have a very tough road ahead of them in this “interesting” time, but just maybe they will lead the change that the profession needs. They deserve to contribute to the profession and have a satisfying life outside of work without having to leave the practice of law to do so. I may be called “Pollyannaish”, but I hope to see the change in the profession that this next generation will bring.
Here are some authors who likely agree:
Deborah Epstein Henry, Law & Reorder: Legal Industry Solutions for Restructure, Retention, Promotion & Work/Life Balance (ABA 2010)
Susan Saab Fortney, In Pursuit of Attorney Work-Life Balance: Best Practices in Management: A Report on a Cross-Profession National Study of Attorneys (NALP 2005)
Ursula Furi-Perry, Your First Year as a Lawyer Revealed: Secrets, Opportunities, and Success!, (JIST Works 2010)
Good luck to the Class of 2011!
It is surprising how little law students understand about networking. They know they should, but don’t know how and particularly don’t understand that they have to be proactive. As marketing expert Kimberly Allen Rice points out, one important way to network is to keep in touch with your law school and its graduates. Here’s how:
• Get plugged into law school alumni association news and activities. Sign up online for alumni e-newsletters and be proactive in attending events and reaching out to former classmates.
• Leverage the web. Join and be active on your alumni listserv, Facebook and LinkedIn. Search out new connections and find reasons to stay in touch. If you travel for firm business, be proactive in tracking your travels on LinkedIn's TripIt to schedule visits with out-of-town classmates.
• Learn effective networking skills to develop a comfort level for cultivating business relationships in social settings. This is a "must have" skill that is more involved than passing out business cards.
• Set up a Google Analytics account to stay current on select issues and law school classmates. This will provide reason for you to connect with your growing network and to offer help.
• Create a list of former classmates, categorize them by occupation -- (non-competing) law firms, solo practice (who may need some help on a case), or firms larger than yours (which may have conflicts) -- and systematically set up face-to-face time to learn their "pain points" and how you may help them.
We've blogged before about the concern from legal employers that law schools do more to teach students business skills. Indeed, one BigLaw firm has made the decision to send its associates to business school to help add to their skill set (previous story here). This sounds like a win-win for everyone - the associates who get some valuable training at the firm's expense, the firm which gets more value out its associates, and the b-school which benefits by the addition of BigLaw associates in the classroom. Of course, few employers can afford the hefty price tag required to send several associates at once to Harvard Business School but for those firms that can, its terrific. Let's check in with this update about one such program courtesy of the online ABA Journal:
[NYC's Milbank] is spending about $5.8 million a year in expenses and lost billable hours to educate about 150 associates each year in an effort dubbed Milbank@Harvard, he writes for the American Lawyer. The program begins in associates’ third year and continues through their seventh year, until they have obtained the functional equivalent of an executive MBA degree.
“Milbank has likely identified a retention sweet spot,” Henderson writes. He notes that experienced junior associates are in short supply because of hiring cutbacks during the recession, making them a hot commodity in the lateral market. Associates are likely to value the training and may be more likely to stick around, given the results of a survey of lawyers who graduated in the year 2000. Sixty percent said they wished they had received more business training in law school; the number increased to 74 percent for those working in firms of more than 250 lawyers.
This article is by Wake Forest Professor Kate Mewhinney and is available at 40 Stetson L. Rev. 151 (2010). From the introduction:
Many of the fundamental skills needed to represent older clients are best learned when law students work with actual clients. To describe a client's options, the students first learn the options and then explain them in their own words. The legal concepts tend to sink in better. While doing this, the student addresses the client's intellectual and emotional responses. Being focused on the client's needs and engaged on many levels allows students to experience one of the most rewarding parts of being a lawyer. Clinical teachers get to help students find this moment, when they, too, can enjoy the satisfaction of solving problems for real people.
An Elder Law clinic also gives law students several other challenges. They get to negotiate the pervasive ethical issues that arise when working with older clients, especially those who are frail. The students practice calibrating their interview styles based on a client's education, mental capacity, and physical limitations. They have to figure out a complex universe of healthcare programs and providers, with its own jargon and dogmas.
The teaching of Elder Law is becoming a common element of many law schools' curricula. Most courses are still doctrinal or lecture based, but there has been a steep increase in the number of clinical courses focusing on Elder Law. The growth in Elder Law teaching coincides with a long-overdue trend toward providing students with more experiential learning opportunities. Law schools have been criticized for emphasizing doctrine and teaching it in a fashion that fails to develop skills in solving problems, professional ethics, and good client relationships. As a result, Elder Law clinics tap into a "hot area" of law while helping schools meet the accreditation requirements for hands-on learning.
This Article centers on one program, Wake Forest University Law School's Elder Law Clinic, which is entering its twentieth year of operation. Our clinic lays no claim to being the oldest or the best Elder Law clinic. It has some unique elements, though, as do the twenty or so other Elder Law clinics in this country.
I hope that this Article will spark more conversation among Elder Law clinicians about how to improve our teaching and our community service. Clinicians are busy with the demands of being lawyers, teachers, and administrators, with one foot in the legal academy and one foot in the practitioner's life. The field of law and aging is particularly in flux. The approach that this Article takes to the clinical teaching of Elder Law ranges from a discussion of our broadest teaching goals to an elaboration of highly focused office policies related to the Elder Law field. Some parts of the Article may be overly specific for some readers, but given the increase in clinical teaching and in Elder Law, these "how to" elements may be useful for other law schools.
Part I offers a perspective on the rich learning opportunities these clinics provide, as well as the challenges of running an Elder Law clinic. Part II introduces the reader to Wake Forest University's Elder Law Clinic, with an emphasis on its partnership with the medical school. Part III discusses the types of cases typically handled by Elder Law clinics. Part IV addresses some of the teaching issues, aside from cases, including credits, student selection, reflection opportunities, and course materials. Part V covers some administrative aspects of running such a clinic, including funding, case management, student and client feedback, curricula, and similar topics.
Monday, May 16, 2011
From the blog Lawyerist:
In a negotiation, the most important personal attributes you can bring to the table are not the razor-sharp mind and tongue you developed in law school. Instead, empathy combined with self-control will get you the best result in a negotiation, with the added benefit of making you feel better about yourself and your job.
Most lawyers must negotiate at least occasionally, and many believe they know how to do it because they went to law school. Wrong! In fact, the adversarial process that American law embraces tends to make lawyers lousy negotiators. This is largely because our legal culture seems obsessed with seeing the lawyer as a warrior, lacking empathy for the other side. Negotiation is in no way analogous to war—it’s a search for a mutually beneficial result. Even when one decides to “lawyer up and fight,” the case almost always ends with a negotiated settlement.
To be a successful negotiator, lawyers must learn how to become "peaceful warriors." That involves responding to your opponent's aggressive opening gambit not in kind - which moves you away from settlement (which presumably is the goal of both parties) - but instead with empathy and understanding that sends a subtle message, without showing weakness, that compromise is possible. You can read more here.
Brooklyn Law School is adding something new to the world of externships—a military externship program. One plus is that students who enroll may gain a competitive advantage if they apply for a position in the highly selective JAG program. According to an article in the National Jurist:
The clinic includes several components. First, each student is assigned to represent the government in an area relating to military legal practice. During their internships, they are exposed to a wide variety of military legal topics, including preparing for military courts-martial, assisting active duty, dependents and retired military members with family law issues; and defending the government in medical malpractice cases.
The clinic also includes a weekly seminar where students receive formal lectures on federal and military civil and criminal practice.
New scholarship: "Educating our students for what? The goals and objectives of law schools in their primary role of educating students--how do we actually achieve our goals and objectives?"
Authored by Penn State Professor Louis F. Del Duca and published at 29 Penn St. Int'l L. Rev. 95 (2010). From the introduction:
Should law schools go beyond producing competent and ethical lawyers? Should they train lawyers to stand up for the rule of law, to work for law reform, to be community leaders? What is the impact of globalization? Are we training lawyers for local, national, transnational, or international practice? How do we actually achieve our goals and objectives? In the post World War II era, new technologies and globalization have simultaneously on the one hand generated opportunities for expanded world commerce, communication, and cultural interchange. On the other hand, they have also generated worldwide concern over environmental, financial, commercial, and human-rights issues accompanied by creation of regional and global political and economic organizations, and a plethora of public and private transnational legal issues, treaties, legal guidelines, standard form contracts, alternative dispute mechanisms and domestic legislation attempting to respond to new problems and new opportunities for their creative resolution. How should our legal-education systems respond to these changes?
At a symposium on Emerging Worldwide Strategies in Internationalizing Legal Education, John Sexton, then Dean of the New York University Law School, perceptively commented on this phenomenon. He noted the analogy between the impact of the nineteenth century industrial revolution and its technology, and the current impact of technology and globalization on law, legal institutions, and legal education. Commenting on the introduction in 1870 by Christopher Columbus Langdell of the case-law method for training students to enter the legal profession, Dean Sexton stated:
The more and more I look at the work of Christopher Columbus Langdell, the more and more I understand that the paradigm shift we see now in sovereignty, technology and information distribution was occurring then. For them, it was not a paradigm shift involving nation states but a paradigm shift involving [individual] states [of the Union] after the Civil War. It was not technology involving computers, but it was technology involving increased literacy and newspapers, the dissemination of information. For them, it was not the internationalization of markets, but the nationalization of markets. I am now beginning to re-understand what Langdell did in those terms. I guarantee you that, when he developed his method, he did not only teach Massachusetts cases.
In today's world of many legal cultures and traditions, development of an optimal curriculum and optimal legal methodology for individual law schools amongst a range of law schools with varying asset basis is a challenge not likely to generate a single universally useful, acceptable or desirable solution. Nevertheless, one can attempt to identify the framework within which the search for such an optimal curriculum and legal methodology can best be conducted.
While this article is mostly about high schoolers (who are tomorrow's law students), it also mentions how university professors are using social media to engage students too shy to talk in class. From the New York Times education section:
Wasn’t it just the other day that teachers confiscated cellphones and principals warned about oversharing on MySpace?
Now, Erin Olson, an English teacher in Sioux Rapids, Iowa, is among a small but growing cadre of educators trying to exploit Twitter-like technology to enhance classroom discussion. Last Friday, as some of her 11th graders read aloud from a poem called “To the Lady,” which ponders why bystanders do not intervene to stop injustice, others kept up a running commentary on their laptops.
The poet “says that people cried out and tried but nothing was done,” one student typed, her words posted in cyberspace.
“She is giving raw proof,” another student offered, “that we are slaves to our society.”
Instead of being a distraction — an electronic version of note-passing — the chatter echoed and fed into the main discourse, said Mrs. Olson, who monitored the stream and tried to absorb it into the lesson. She and others say social media, once kept outside the school door, can entice students who rarely raise a hand to express themselves via a medium they find as natural as breathing.
“When we have class discussions, I don’t really feel the need to speak up or anything,” said one of her students, Justin Lansink, 17. “When you type something down, it’s a lot easier to say what I feel.”
With Twitter and other microblogging platforms, teachers from elementary schools to universities are setting up what is known as a “backchannel” in their classes. The real-time digital streams allow students to comment, pose questions (answered either by one another or the teacher) and shed inhibitions about voicing opinions. Perhaps most importantly, if they are texting on-task, they are less likely to be texting about something else.
. . . .
Skeptics — and at this stage they far outnumber enthusiasts — fear introducing backchannels into classrooms will distract students and teachers, and lead to off-topic, inappropriate or even bullying remarks. A national survey released last month found that 2 percent of college faculty members had used Twitter in class, and nearly half thought that doing so would negatively affect learning. When Derek Bruff, a math lecturer and assistant director of the Center for Teaching at Vanderbilt University, suggests fellow professors try backchannels, “Most look at me like I’m coming from another planet,” he said.
“The word on the street about laptops in class,” Dr. Bruff added, is that students use them to tune out, checking e-mail or shopping. He said professors could reduce such activity by giving students something class-related to do on their mobile devices.
Besides Twitter, teachers have turned to other platforms for backchannels, some with more structure and privacy. Most are free on the Web and — so far — free of advertising. Google Moderator lets a class type questions and vote for the ones they would most like answered. Today’s Meet, used by Mrs. Olson, sets up a virtual “room.”
Purdue University, in Indiana, developed its own backchannel system, Hot Seat, two years ago, at a cost of $84,000. It lets students post comments and questions, which can be read on laptops or smartphones or projected on a large screen. Sugato Chakravarty, who lectures about personal finance, pauses to answer those that have been “voted up” by his audience.
Before Hot Seat, “I could never get people to speak up,” Professor Chakravarty said. “Everybody’s intimidated.”
“It’s clear to me,” he added, “that absent this kind of social media interaction, there are things students think about that normally they’d never say.”
You can read the rest here.
Sunday, May 15, 2011
There has been much criticism in the news recently, including on this blog, about law schools' handling of merit scholarships. An article in today's New York Times on college graduates' optimism gives some support to the law schools' position that students have a responsibility, too.
The article states:
"Surveys show that students expect to receive more job offers and higher salaries upon graduation than they wind up getting. They anticipate being married till death do them part, though they are acutely aware that statistics say there’s a good chance they won’t be. They underestimate their likelihood of suffering from cancer, heart attack and other misfortunes and overestimate their likelihood of acquiring wealth and professional success. The list goes on and on."
However, being optimistic can be good. People who are optimistic suffer less stress, and they are happier.
I still believe that law schools have a duty to disclose renewal rates for scholarships. However, this article does illustrate why some of our students are surprised when they lose their scholarships.
Last week, one of my co-bloggers discussed two studies on teaching methods. One study said that the lecture method was better; another said the problem method was better. He concluded that "Maybe a hybrid style is best; one that combines lectures that deliver background information with in-class problem solving exercises that engage students and reinforce the lecture material in a concrete way." Obviously, my co-blogger was right. Using more than one approach reinforces learning. Students learn better when they are told how to do something, then they apply it.
In my UCC classes in law school, we would usually start the class discussing a UCC section and cases that applied it. We would later go over problems that used this section. Using this combination lecture/problem solving method was a better method to learn for me than the straight socratic method that was used in most of my other classes.
I teach legal writing similarly. For example, when I teach point headings, I start by telling the class what is and what is not a good point heading. Next, we look at examples of point headings, and I have the students tell me what is good or bad about an example. Finally, I use exercises in which the students have to write point headings based on short scenarios.
In sum, I do not believe that any of the usual teaching methods are good or bad. They just need to be used in combination to reinforce each other. If you start out with a problem with no background, the student will be lost. On the other hand, if you just lecture or use the socratic method, the student will never get to apply what he or she has learned.
Remember that New York Times article a few weeks ago suggesting that law schools deceive applicants by awarding more merit scholarships than they know students can keep due to a grading curve that assures some recipients won't pass muster (here, here and here)? Here's an editorial laying blame at the feet of students for not doing their due diligence beforehand. From the National Jurist:
Virtually all law schools, with rare exception, use a standard bell curve in their 1L grading system. Schools set the median GPA ahead of time, and in different places. Some as low as 2.0, some as high 3.4. (The average median, or mean median if you will, is a 2.95 on a 4.0 scale – slightly below a B.) To be painstakingly obvious, 50 percent of students will be above the bell of the curve, 50 percent below. But here’s a key point that often falls in the “yeah, yeah, yeah. I know that” category: by virtue of gaining acceptance to your law school, every one of your classmates is equally as qualified as you to be there. You – and they – will be entering into a new realm of academia, with new challenges, new assignments, new exams and new requisite study techniques. At the end of the semester, 50 percent of all 1L students will be at or below the bell in the curve. If your school has a 1L grading curve with a median set at a 2.5, and you required a 3.0 to maintain your scholarship, understand your “odds” are going to be steep. Law schools aren’t trying to be tricky. They just know they’ll be able to offer a lot more scholarship awards and only need to pay out X percent of them on a continual basis through years two and three.
. . . .
[W]hile law schools must be responsible when offering hefty merit-based scholarships to applicants (the American Bar Association is actually discussing new rules right now,) responsibility is a two-way street. Aspiring law school students themselves have to ask the tough questions – a skill they will need as successful lawyers anyway.
· Is this scholarship guaranteed every year?
· If not, what does it depend on?
· What is the median GPA for students in your 1L class?
· What percentage of your students maintain their scholarships for 2L and 3L?
And let me tell you – schools will gladly give you the answers, if you ask the right questions. Handicap your law school list on a number of metrics – this being one of them – and you’ll be sure to end up a winner at the end of your 1L year.
You can read the rest here.
Bob Dylan: Songwriter to the Legal Profession
In 2006, now-University of Tennessee Law professor Alex Long scoured court filings and opinions and scholarly articles. His results:
Dylan cited 186 times, far outpacing the rest of the top 10: the Beatles, 74; Bruce Springsteen, 69; Paul Simon, 59; Woody Guthrie, 43; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27.
3 Geeks and a Law Blog has a column called the "Elephant Post" which solicits opinions to a question posed by the editors. Last week's "Elephant Post" asked "What's the new normal in legal education?"
Here is a summary of the answers:
- "[B]ottom line: They are doing it almost the same way they were 20 years. Except now I hear tuition is much higher."
- [From a law librarian]. "The 100-fold increase in the velocity of information. The volume of information has increased even more, but it is the speed at which we are confronted with information that has been truly boggling."
- From the teacher's side of the podium, nothing much has changed in the past 20 years. Students, however, have changed a lot and technology has changed the classroom environment for them quite a bit.
- "What has changed at law schools is that the volume of graduates has increased beyond what the job market can handle. As a result, the market is flooded with graduates who are unable to pay back student loans. Most lawyers I know express similar views and all repeatedly tell friends and family members who are considering going to law school that they should not."
- [From a student] "Very expensive tuition is the new norm at law schools!"
- [From a CALI developer] "So, the new normal at law schools? Lots of great technology available but not used, same old teaching methods being used."
You can read more detailed comments here.
The best advice is don't try to cut the student slack by handling it on your own. It might blow-up in your face like it did for this professor. Instead, follow process. Report the student and let the "system" work.
Here's a first-hand account of how a teacher's best intentions can go horribly wrong when it comes to handling student plagiarism. It's from an essay called "Student Cheats and Those Who Harbor Them" found at 60 J. Legal Edu. 664 (2011) by - are you ready? - Sue D. Naim. Get it?
Here's an excerpt:
I had it on good authority that many schools give students the option for informal resolutions once administrators get their hands on these cases, so why not handle it myself? Settlements and plea bargains have their reasonable opponents, but in this context with this moral landscape, it seemed defensible. I wasn’t surprised to learn later that studies of student cheating reveal that faculty “underutilize” formal processes and come up with their own resolutions. I thought I would punish the student by awarding the exam a failing grade—and if the student was willing to accept the failure and not contest it, I would not report the cheating to the administration.
When I shared with colleagues that I was considering this solution, many supported me, thinking it was merciful and fair. Others thought it was too generous to the student. But no one suggested it was morally impermissible, which was interesting in its own right. Colleagues had ideas about what they might do and what they have done in similar situations, but most respected that these were hard questions with a range of morally permissible answers.
. . . .
I was expecting contrition and gratitude. And rationality. These were too much to hope for, alas.
. . . .
Denial was followed with fabricated documentary “evidence” to cover up the cheating, which only confirmed my belief that the cheating actually occurred. In the course of mounting a defense by email (the phone call did not prevent follow-up writings), Dani stupidly conceded to violating the local honor code in lesser ways (ways I actually wouldn’t have failed a student for), showing a pattern of disregard for exam rules. And then came the threats: Dani made explicit what I latently feared might result from reporting the episode to the administration. First, the student re-characterized my generous offer as an abuse of power and professional misconduct because I was threatening to fail the student no matter what. Then the student pointed out something that wasn’t actually untrue: I was willing to cheat the university (in a sense) by not giving Dani due process and just awarding an F. Suddenly, I was starting to think that I had now acted in a way that might make me look bad when it all came to light.
. . . .
My effort here has been to bring into the open something we will all face, hopefully infrequently but probably more than once. But I am also exploring my ambivalence here with the hope that it might actually be therapeutic for others, too. And it might just get administrations to realize that professors need them to provide better training and to vindicate our academic values.
I spent several hours during my visiting appointment being trained on how not to engage in sexual harassment in the workplace; a half hour on what to do with student cheats really would have been time better spent.