Saturday, June 11, 2011
Friday, June 10, 2011
The Florida Supreme Court heard arguments on Wednesday regarding a Florida Bar proposal that would require attorneys to exchange pleadings via email rather than snail mail. A lawyer representing the Public Defenders Office asked the court to exempt criminal matters from the proposed rule while another attorney expressed concern that the new rule would hurt indigent parties. The Justices did not indicate when, or how, they will rule.
From the Miami Herald:
The state Supreme Court should exempt criminal cases from a proposed rule that would require attorneys to exchange most pleadings with each other by email instead of on paper until the court system itself goes digital, a lawyer for Florida's public defenders told justices Wednesday.
The Florida Bar's proposed rule is being billed as the first significant change in the way law is practiced in the state in more than a century and a step toward electronic filing of lawsuits, indictments and other documents with court clerks.
"We're wildly looking forward to the day when that happens," Assistant Public Defender John E. Morrison of Miami told the justices. "What we oppose is the tail wagging the dog."
Morrison, who argued on behalf of the Florida Public Defender Association, said it would make more financial sense to create an e-filing system - such as the one already used by federal courts - before requiring lawyer-to-lawyer exchanges of documents by email.
"That is well worth the investment," Morrison said. "What is not worth the investment is creating that system once for the service (of pleadings) and then having to recreate it when we get e-filing."
Justice Barbara Pariente asked about the possibility of setting up an e-filing pilot program for criminal cases in up to three of Florida's 20 judicial circuits.
Morrison said that would be acceptable but he wasn't sure any circuit yet has a computer system capable of doing it, noting that Miami-Dade County's online court docket uses 1983 technology.
"Young kids that come into our office laugh at it," Morrison said. "They have never seen something so archaic."
He said some small public defender offices don't even have email systems. The problem with email is the sheer volume of criminal cases because public defenders handle about 800,000 each year and state attorneys probably more than a million, Morrison said.
Pariente said there should be some way, though, to get it worked out.
"I am serious about this," she said. "There is an issue of what comes first, and maybe we try to get some of these circuits and get this solved, right? I hear you."
Morrison said either way the high court goes, it's going to require newer and bigger computer systems. But he added, "We would like to invest taxpayer dollars only once."
Ten different bar rules committees unanimously endorsed the proposal for exchanging pleadings electronically instead of on paper delivered by the U.S. Postal Service.
In papers filed with the high court, they argued "the savings in terms of paper, ink, toner, postage, envelopes and labor is incalculable" and that "the destruction of trees is a secondary benefit that is of no small moment."
CNN had a recent story about the use of Twitter in a middle school classroom. You can read the full story here.
Has anyone tried this in a law school course? It might compare to the use of clickers to solicit and include immediate feedback and participation in the classroom. It may also provide the opportunity to incorporate advice to your students on the importance of a professional online image. Food for thought this Friday.
Thursday, June 9, 2011
Throwing 20 affirmative defenses against the wall to see what sticks is a strategy that did not go over well with Manhattan Civil Court Judge Arthur F. Engoron in a landlord-tenant dispute over back rent. The case is Cityspire Inc. v. Gotham Lasik PLLC, 092462/10 and here's what the judge said in his order granting summary judgement to the plaintiff-landlord regarding the defendant's pleading practice:
The [affirmative defenses] are a veritable laundry list, something of a 'greatest hits,' of what respondents tend to argue: the predicate notices are not self-authenticating; petitioner accepted a rent payment after serving a notice to cure; the amounts of money set forth in the predicate notices are inconsistent with the amounts set forth in the petition; the subject lease provision sets forth a condition subsequent rather than a conditional limitation; the premises are inaccurately described; the verification is improper; the mailings were improper; etc.. . . . In other words, we have the usual suspects, with, naturally, a few vague counterclaims thrown in for good measure.
Author Mary McCarthy famously said of the playwright Lillian Hellman, 'every word she writes is a lie, including "and" and "the." Here, there are no lies; but every argument respondent makes is unavailing, because of a mistake of fact or a misconstruction of law.
Hat tip to the New York Law Journal.
The Nashville based law firm of Waller Lansden Dortch & Davis will be implementing a new associate recruitment program this fall called Schola2Juris in which the firm will forgo traditional on campus interviewing in favor of taking 3L's on a six week test drive before making final offers. The AmLaw Daily explains:
Schola2Juris--an apprenticeship program announced last fall that will see the firm hire only 3Ls based on actual full-time openings--officially launches on July 5. That's when the firm will open the application process for rising 3Ls for up to ten new jobs across the firm's various practice areas.
As we reported in September after the firm's initial announcement, the shift away from the traditional model is significant. Not only will Waller Lansden focus only on 3Ls, who are closer to completing law school and actually joining the firm, but the six-week apprenticeship program will run in the fall--from the beginning of September into October, while the hires are still in school.
The apprentices will work remotely, for the most part, on laptops and video-conferencing software provided by the firm. And, as previously reported, those hired via the program will receive a $10,000 scholarship.
. . . .
The 3Ls will work remotely, using video-conferencing equipment to sit in on discussions, talk with advisers at the firm, and even participate in a virtual classroom for business classes. "So, they'll meet as a group, all together, and be able to interact that way," Pearson says. "And, then, they'll meet with different people throughout the firm in different group settings."
The virtual nature of the work, says Pearson, allows students across the country to participate. A four-day retreat is scheduled at Waller's Nashville office for late September, so that the apprentices have the opportunity to meet with their advisers face-to-face, shadow associates at the firm, and sit in on client meetings or trials.
The hires will complete training modules created by each practice group that will offer apprentices a simulated experience meant to reflect the type of work they would perform as full-time associates, Pearson says.
For instance, corporate apprentices will experience the entire lifecycle of a corporate client from the drafting of documents that would be required for a company's formation to issues surrounding dissolution. In between, the apprentices will learn about such matters as shareholder agreements, M&A due diligence, and joint ventures.
Since it's a buyer's market out there, no doubt we'll see other employers trying more innovative ways to recruit new associates that best meet the firm's particular needs. You can read more about the Schola2Juris program by clicking here.
Stare decisis — the doctrine of precedent — implies the need to develop pattern-recognition skills in order to assess the similarities and differences between (on one hand) a present problem or situation and (on the other hand) the problems or situations found in decided cases. Although not typically cast as an extended exercise in developing pattern-recognition skills, much of legal education amounts to just that. This process, however, often seems slow, and some students likely never quite grasp the point or the skill. The issue of different learning styles — aural or visual, textual or pictorial/graphical — complicates the quest.
A recent article in The New York Times highlights efforts in the physical sciences to improve high-school students’ pattern-recognition skills and to inculcate the skills to the point that the students acquire “something at least as valuable [to true experts] as a mastery of the rules: gut instinct, an instantaneous grasp of the type of problem they’re up against. Like the ballplayer who can ‘read’ pitches early, or the chess master who ‘sees’ the best move, they’ve developed a great eye.” The reporter notes that “[g]ood teachers at all levels already have their own techniques to speed up this process — multiplication flash cards, tips to break down word problems, heuristic rhymes — but scientists are working to tune students’ eyes more systematically and to build understanding of very abstract concepts.”
Perhaps the mathematical rigor of the hard sciences makes this kind of concentrated training in some ways easier to implement in those domains than in, say, legal education. But considering the importance to good lawyering of suitably assessing the similarities and differences between the present and the past, of recognizing patterns and extrapolating from them, of acquiring lawyerly intuitions and instincts, the utility of similarly intense exercises in pattern recognition for would-be lawyers seems both evident and to present an opportunity for an enterprising legal-skills educator to create pathbreaking training.
Benedict Carey, “Brain Calisthenics for Abstract Ideas,” N.Y. Times, June 7, 2011, p. D1 (national ed.).
The Carnegie Foundation has just published Rethinking Undergraduate Business Education: Liberal Learning for the Profession. Here is its thesis:
Business education for undergraduates, however, is too often narrow, fails to challenge students to question assumptions, think creatively, or to understand the place of business in larger institutional contexts. These are the results of a national study of undergraduate business education undertaken by The Carnegie Foundation for the Advancement of Teaching, reported in this book. The book describes the efforts of a diverse set of institutions to address these limitations by supporting the best elements of liberal arts learning integrated with students’ learning of business disciplines in order to develop wise, ethically grounded professional judgment.
Does this argument also apply to legal education?
Wednesday, June 8, 2011
From the AmLaw Daily:
The turbulent legal job market took another sharp turn last month as employment in the sector declined by 1,000 positions, according to statistics released Friday from the Bureau of Labor Statistics.
There was a glimmer of hope in April, when the legal sector initially seemed to have added 1,500 jobs. But adjusted statistics from BLS now show a decrease for April--the revised number is 700 jobs lost for that month (BLS routinely revises numbers from recent months based on additional reports and recalculated seasonal adjustment factors). With that news, the legal industry has experienced four straight months of losses. The legal sector currently stands at 2,700 jobs less than this time last year. (Click here for our March coverage and here for the February jobs report.)
That downward trek has run parallel with a moderate recovery in the overall economy, which stalled out a bit in May. BLS reports that the U.S. added only 54,000 jobs last month, after an increase of 232,000 positions April (the figures are revised from the original report). That sent the unemployment rate from 9 percent to 9.1. The New York Times notes that May's overall job growth was about one-third of what most economists were expecting.
In a separate (and, in our view, somewhat related) article, The Times highlights one area that lawyers have turned to to find work: outsourcing firms. These businesses, which in recent years were moving U.S. legal jobs to low-cost countries, now boast openings in the U.S. for out-of-work lawyers, the Times reports. Some of the jobs, such as ones for preparing and analyzing export control documents and military contracts, are easier to fill and accomplish in the U.S., the article notes, given domestic laws or logistics.
While the positions pay less than the salaries at big law firms, there appears to be a lot of opportunity for growth. The Times says the legal outsourcing industry made $400 million last year. That figure is expected to rise to $2.4 billion by 2012, according to The Datamonitor Group, cited in the article.
The relatively short history of e-books has been interesting to watch. It's yet another example of how difficult it is to predict the public's taste for new technology. Take digital time pieces for instance. Reason would suggest that digital clocks and watches should have long ago replaced their analog counterparts because the digital devices are more accurate and cheaper to produce. Yet the public still really likes the old analog technology. Even though it's an old technology, for many (most?) people, it's a better tool for showing at a glance how much time has passed and how much is left.
It seems to be the same thing with p-books versus e-books. Logic would dictate that e-books should have buried p-books by now. E-books are cheaper and much more convenient to lug around. Yet the p-book is proving to be extremely resilent, surprisingly so among digital natives who have repeatedly told pollsters they prefer hardcopy textbooks to electronic ones. There's something about the physicality of a p-book that makes it more appealing to many people.
Nevertheless, according to this story, Amazon is predicting 2012 will be the break-out year for the Kindle and e-book sales in general. According to the Business Insider:
Amazon's Kindle business is about to contribute 10% of the company's overall revenue, says Citi analyst Mark Mahaney.
Mahaney estimates Kindle unit sales for 2011 to be 17.5 million, which is $2.1 billion in revenue. He estimates eBook sales to be 314 million units, which is $1.7 billion. Combined that's 8% of Amazon's 2011 revenue.
For 2012, he sees Amazon selling 26 million Kindles and 751.5 million eBooks. Combined those sales would be $6.1 billion, or 10% of Amazon's revenue. (Mahaney expects a sub-$100 Kindle by year end to drive sales.)
Inside Higher Ed recently reported on a movement to improve internet searching for students -
“… a coalition of education-oriented companies and organizations aims to make it easier to find useful educational content amid the detritus of the Web. The Association of Educational Publishers (AEP) and Creative Commons …are forming a working group to come up with more detailed criteria that could eventually be incorporated into the search interfaces for Google, Bing, and Yahoo!...
The idea behind the new education partnership is to determine a common “framework” for narrowing search results for education content, says Charlene Gaynor, CEO of the Association of Education Publishers — by subject area, or source type, or content type, or any number of possible criteria. The goal is also to persuade publishers of educational content, whether open-access or proprietary, to use a corresponding set of metatags to help the search engines categorize their content more easily.”
Read the full article here.
Doctors Daniel Siegel and David Rock have identified seven essential daily mental activities necessary for optimum mental health in daily life:
Play Time. When we allow ourselves to be spontaneous or creative, playfully enjoying novel experiences, which helps make new connections in the brain.
Connecting Time. When we connect with other people, ideally in person, richly activating the brain's social circuitry.
Physical Time. When we move our bodies, aerobically if possible, which strengthens the brain in many ways.
Time In. When we quietly reflect internally, focusing on sensations, images, feelings and thoughts, helping to better integrate the brain.
Down Time. When we are non-focused, without any specific goal, and let our mind wander or simply relax, which helps the brain recharge.
Sleep Time. When we give the brain the rest it needs to consolidate learning and recover from the experiences of the day
These seven activities make up the full set of 'mental nutrients' that your brain needs to function at it's best. By engaging regularly in each of these servings, you enable your brain to coordinate and balance its activities, which strengthens your brain's internal connections and your connections with other people.
Of course, the real question is what is the minimum daily requirement for each, which will vary with the individual.
Tuesday, June 7, 2011
Most of my writing tips will be on small mechanical things, like eliminating passive voice or editing for wordiness. However, the key to being a good editor is to be able to recognize these small mechanical mistakes. For example, once one finds a passive construction, it is usually easy to eliminate it. In college, most of us were taught to skim the material. While this might be a good technique for reading a lot of material quickly, it is not conducive to good writing. A good writer reads slowly when editing, looking at every word and even every letter and punctuation mark. One way to develop this method of reading is to read your writing out loud and listen carefully. This technique also helps make writing sound natural, rather than mechanical.
Think about your email signature as one way that you tell the reader about yourself and a way in which you make a positive impression. Attorney at Work offers ideas on how you can maximize your impact. Here are just a few:
- DO use a common email font, such as Arial or Calibri (both sans serif) or Times Roman (serif) for your text. For font color, use black or dark gray. If you pick an unusual font, there is no way to know how it will appear on the recipient’s monitor.
- DO include full contact information: name, title, firm, full mailing address, email link, direct-dial telephone, mobile phone and fax. Also include a V-card link.
- DO include your assistant’s name, email and phone to demonstrate your ultimate accessibility.
- DON’T include your resume, lists of awards or a list of services you provide. This is not the place—it looks unsophisticated and makes it appear that you are trying too hard.
Monday, June 6, 2011
The Los Angeles Times Technology Blog reports:
“Internet access is a human right, according to a United Nations report released on Friday [June 3, 2011]….
‘Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all states," said the report from Frank La Rue, a special rapporteur to the United Nations, who wrote the document "on the promotion and protection of the right to freedom of opinion and expression.’"
Hat tip InternetLaw (@InternetLaw)
The legal equivilant of the Chupacabra - lots of rumors it exists but have you ever seen one for yourself? From the blog Dewey B. Strategic:
1. Why Cost Effective Online Research Can Not Be Taught
Between them, Lexis and Westlaw have over 100,000 separately priced data files. Each of these 100,000 files has at least 5 different price points associated with it, including: hourly, transactional, cite checking, find and print, document printing, line printing and image printing. Some files have special charges if they generate reports or have an expandable table of contents. Then overlay this toxic brew with the pricing variations generated by “flat rate” contracts which trigger a special discount for some but not all content. This requires an associate to engage in an additional computation to account for a “firm specific” discount off of the undisclosed price points.
Do the Math: We have been expecting associates to be able to predict and control of costs of a system that involves about half a million undisclosed, possible price points.
The Madness Exposed. Handing an associate a Lexis or Westlaw password and asking them to be “cost effective,” is like handing someone a credit card and sending them into a store in which none of the merchandise is priced and then berating them when the bill comes in exceeding your budget. No consumer affairs department would allow a retailer to perpetrate this kind of thing on the public. How is it that almost every law firm in the US has put up with this for the past 3 decades?
2. Why cost effective research training is counter-productive.
The obsession with being “cost effective” distracts the associate from focusing on the real goal -- finding the right answer. Here comes the brain theory. Effective legal research requires deep focus and concentration yet… “the myth of cost effective research” requires an associate to engage half of their attention on a collateral and competing analysis of factors which have nothing to do with the substance of the law. (Am I in hourly or transactional mode? Is this content included or excluded? Should I print or read online? Should I execute a new search or will that cost too much? Have I selected the cheapest file? Is it cheaper to print by the line or print a page or print a document or should I email the results to myself?)
What about getting a good result for a client? Let me cut to the chase. The truly sinister part of the obsession with “cost effective legal research” training is that it subverts and derails the real purpose of online research: getting to the legal precedents and factual data that impact advocacy for the client. Associates who take the “cost effective gospel” to heart are often paralyzed and confused. They prefer to “Google for precedents” or engage in other outlandish inefficiencies to avoid using the premium research tools altogether.
3. Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding real solutions.
The bottom line: If Lexis and Westlaw really cared about cost effective legal research they would have developed simplified and transparent billing systems.
I have participated in countless librarian panels and advisory groups sponsored by both Lexis and Westlaw over the past 25 years and we have delivered a consistent demand for simplified and transparent billing systems. Instead of responding to this demand, Lexis and Westlaw have stood back and let us expend countless hours on hopeless training initiatives which were doomed from the start.
Lexis and Westlaw have the power but not the will to make their very complex billing systems open and transparent. When you go to select a file they could display the cost, but they do not. When you are online conducting a research session they could run a ticker showing how much you session has cost, but they do not. They could have a limited number of price points, but they do not.
After running a pilot program this past spring, Penn State has adopted the i> clicker system.
Criteria for the evaluation encompassed multiple components: cost, ease of use, product stability, support experiences, learning management system integration, vendor support, reporting capabilities, compliance with federal laws, and cross-platform support.
It should be noted that Penn State tested the i>clicker against only one other system, but also had prior experience with another system.
"At Penn State, we needed a clicker system that was both easy to use and flexible enough to support our wide-ranging teaching methodologies," said Dave Test, a member of the university's technology classroom support organization. "With i>clicker, our faculty can easily implement clickers into their courses, adding myriad engagement opportunities with their students, but without the steep learning curve that we've experienced in the past. i>clicker gives us rock solid reliability and all of the features we need, without all of the headaches of other clicker systems."
Here is the article from Campus Technology.
Sunday, June 5, 2011
A theme of several presentations at the Institute for Law Teaching and Learning conference was integrating skills exercises into doctrinal courses. I have been advocating this for several years in place of the socratic method. The teacher would first present the material through lecture, the socratic method, or discussion, then reinforce the material through exercises that forced the students to apply what they learned. This last part--applying what they learned--has been missing from traditional legal education. Not only do exercises reinforce the material, but they add this important legal skill. I believe that teachers should employ legal skills exercises frequently throughout the semester.
These exercises can often be quite simple. For example, Scott Stevenson gave us the Oregon Limited Liability Statute and asked us to evaluate a simple articles of incorporation based on that statute. In this exercise, the students not only learn the law, they learn how to apply it to a situation they might see in practice.
Tonya Krause-Phelan presented exercises that she uses on the first day of her criminal law class. She first discussed the bases of criminal punishment, and we then looked at a sentencing statute. Next, we did an exercise based on a law school dress code that applied the bases of liability. One person was the defendant, and the rest of the class was divided into prosecution or defense teams. Each of the teams discussed possible punishments, then they made their arguments before the class. She then critiqued the arguments. We did further follow-up exercises, including one that used an MBE-like question. She said that she often uses this structure in her classes, but that it did not work for all subject matter. She added that doing these kinds of exercises adds to student engagement.
How Metacognitive Deficiencies of Law Students Lead to Biased Ratings of Legal Writing Professors by Catherine J. Wasson and Barbara J. Tyler at ssrn.
The focus of this article is the aberrant student comment, the comment that generates scalding heat, but no light. We focus on those comments because we believe it is time to expose a deeply disturbing aspect of the student ratings process at its worst: it allows students to use the ratings process to abuse and bully a professor with no responsibility for the consequences of their actions. We believe that the aberrant and ugly comments on student ratings arise synergistically from two sources: (1) students’ metacognitive deficiencies, specifically the phenomenon known as the "Dunning-Kruger effect;" and (2) specific factors that have a particular effect on ratings of legal writing professors. Using psychological research on metacognition the authors argue that metacognitive deficiencies in novice learners prevent them from recognizing their own poor performance and from recognizing their professor’s competence. This phenomenon, when coupled with the persistent institutional biases against legal writing professors, can damage a teacher’s career. Research into metacognition offers the legal academy a way to rethink the use of the standard student evaluation form and find ways to solicit more reliable and meaningful feedback from our students.
The following is a list of national practice trends from lawjobs.com:
• Regulatory: Although Dodd-Frank and the Patient Protection and Affordable Care Act will continue to face challenges, both political and legal, regulation is a major issue. It particularly impacts certain industries -- health care, financial services, pharmaceutical and energy. Closely related to this area is ...
• Government Affairs: A growing number of firms are creating government affairs groups because of the increasing role of government, both federal and state, in business and legal matters.
• Health Care: Covers many specific practice areas and all types of providers.
Some of the areas that continue to be hot, together with a few new ones, include:
• Financial Services: In addition to Dodd-Frank, the new drivers in this area are consumer finance and suits being filed against lenders for what has come to be known as "robo-signing" of documents. Another developing issue is increased regulatory requirements for private equity and hedge funds.
• Energy: Particularly oil, gas and nuclear. Gas has become red hot in Pennsylvania and New York because of the proposed regulations from the Delaware River Basin Commission that will impact the Marcellus Shale gas play.
• Labor & Employment: One of the "standard" areas referred to above that is always in demand, L&E is becoming even hotter because of wage-and-hour actions, government investigations in the health care industry and, of course, in Wisconsin, Ohio and perhaps soon in Pennsylvania, movement to strip collective bargaining rights from public sector employees.
• Immigration: Arizona is just the tip of the iceberg.
• White-Collar Crime: Heating up due to financial fraud investigations and continued violations of the Foreign Corrupt Practices Act.
• Litigation: Despite the trends moving toward alternative fee arrangements (AFAs) and for corporations to reduce spending on outside legal counsel, the number of cases being filed continues to rise dramatically. Construction litigation and complex, "bet the company" cases are red hot. Patent litigation continues to be hot and school-based litigation is getting hot. However, also hot in some firms is ...
• Alternate Dispute Resolution (ADR): Both mediation and arbitration, because of the high costs of litigation and delays in the courts.