June 25, 2011
“Hot Coffee” Spills the Beans on McDonald’s
This week, HBO will begin showing a new documentary giving the plaintiff’s side of the story on the McDonald’s coffee case in which a customer suffered severe burns from very hot McDonald’s coffee. Although she won a handsome verdict, the case has been ridiculed by the defense bar and comedians who should know better. To learn more about “Hot Coffee” you can read this story from Oregon Live.
Law School Accreditations: Ups and Downs
The ABA Section of Legal Education and Admissions to the Bar has awarded full accreditation to the Elon and Charlotte Law Schools. It has granted provisional approval to fledgling UC Irvine and has revoked La Verne’s provisional status, apparently because of low bar passage rates.
June 24, 2011
New legal "skills" scholarship: "Appellate Briefing: Some Thoughts on Writing Briefs That Can Clear a Path Through the Jungle"
This one is by Margaret Oertling Cupples, a litigation partner with Bradley Arant Boult Cummings LLP, and can be found at 30 Miss. C. L. Rev. 1 (2011). From the introduction:
Appellate lawyers know there are things we cannot change. We cannot rewrite the trial court record to fix a trial lawyer's failure to make a proffer of excluded evidence. We cannot travel back in time to make sure that the court reporter transcribes a bench conference that included an important voir dire ruling never reflected in the record. We cannot give a key witness a second chance to testify after opposing counsel performs an Oscar-worthy cross-examination. And we cannot change the verdict that the judge or jury reached. Instead, just as a tortfeasor learns that "you take the plaintiff as you find him or her," we must take the record pretty much as we find it.
But there is one thing we can do, either to change the outcome for our client if we are seeking a reversal, or to safeguard a winning result if we are asking the appellate court to affirm. We can write an excellent brief.
That brief is likely to be the only chance we have to present our client's position to the appellate court. In 2009, the Mississippi Supreme Court heard oral argument in only twenty cases out of the 382 it decided. The Mississippi Court of Appeals heard oral argument in just fifty-eight cases out of 639.
A great brief can win a case, but if it is less than excellent, it can lose the case, too. Chief Justice John Roberts has said that reading a poorly written brief is "almost like hacking through a jungle with a machete to try to get to the point. You spend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works." Do not send the appellate court into the jungle with a machete. Instead, give the court a way to get through the jungle quickly, on a path that leads to the result that your client wants. For this, the court needs a well-written brief that is concise, persuasive, and clear. To use the Chief Justice's words, when you give the court a well-written brief, you and your client are ahead of the game: the judge who is reading the brief "kind of gets a little bit swept along with the argument," and "can deal with it more clearly, rather than trying to hack through." This Article provides a few ideas and strategies for getting through the wilderness.
Getting the Most Out of Google Searches
In the June issue of Trial magazine, attorney Dan Siegel argues that most people could get better and faster research results from Google if they knew more about how to tap into its potential:
Although Google is widely used, it isn't necessarily used well. When looking for something on the Web, most searchers rarely do more than type a brief query (a word or short phrase) into the search box on the main Google page. But you can obtain better, more tailored results by tweaking your queries just a little.
In the article he offers a list of favorite search shortcuts. This article is well worth saving.
June 23, 2011
Drafting tip: Keep the word "especially" out of your contracts
The word "especially" can be ambiguous when used in a contract because it may indicate that whatever it modifies is "particularly important" or it may instead be interpreted to mean "specifically" or "principally." The problem is, as Ken Adams from Koncise Drafter points out, the former may lead to the conclusion that one scenario in a series is more important than the others when that isn't what the parties intended. By way of example:
Usually, especially is used to mean “particularly,” as in the following examples:
If the scope of work of a Work Order changes, especially the estimated timelines, then the applicable Work Order may be amended as provided in this Section 5.3(a).
Distributor shall not, for any reason whatsoever, disclose any of Taomee Network’s business secrets to any third party, especially Taomee Network’s competitors, failing which it will be subject to severe penalty and, if the circumstance is serious, legal liability.
If any party breaches the contract, especially under material breach, the breaching party shall compensate the other party 20% of the total contracted amount of the last one year.
The Sellers acknowledge that such information is of material to the Business, and will continue to be so after the consummation of the transactions contemplated herein, and that disclosure of such confidential information to others, especially the Company’s existing and/or potential competitors, or the unauthorized use of such information by others would cause substantial loss and harm to the Company.
To the extent to which the contributing Party is entitled to assert claims towards third parties under the contract on the contributed activities, especially claims under guarantees and warranties, it assigns such claims to STOXX as far as they relate to the contributed activities, or asserts such claims in the interest of, at the expense of and in favour of STOXX.
Executive’s obligations under Article III and Article IV of this Agreement (especially those relating to confidentiality, non-competition and non-solicitation) shall continue after his employment with the Company is ended, regardless of the nature or reason for such termination.
The problem with especially is that it’s used to indicate that with respect to a given provision, some subset of the universe to which that provision applies is particularly important. Necessarily, that denigrates the importance of the rest of that universe; that could could hamper attempts to enforce that provision with respect to the rest of that universe.
If you want to make sure that something falls within the scope of a given provision, you can do that in ways that are more neutral than by using especially. For example, through disciplined use of including (see MSCD 12.100).
Drafters also use especially to mean “specifically,” as in the examples below. Using specifically instead would represent a better choice.
This Plan shall be administered initially by the Board of Directors of the Corporation (the “Board”), except that the Board may, in its discretion, establish a committee composed of two (2) or more members of the Board or two (2) or more other persons to administer the Plan, which committee (the “Committee”) may be an executive, compensation or other committee, including a separate committee especially created [read created specifically] for this purpose.
The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially [read specifically] for the Work and shall deliver such bids, and a recap and summary of such bids, to the Architect and the Owner.
Friday Fun: Can you tell a fake smile from an authentic one?
Here’s a fun test you can play by clicking here. It only takes a minute or so.
Spot The Fake Smile
- This experiment is designed to test whether you can spot the difference between a fake smile and a real one
- It has 20 questions and should take you 10 minutes
- It is based on research by Professor Paul Ekman, a psychologist at the University of California
- Each video clip will take approximately 15 seconds to load on a 56k modem and you can only play each smile once
|Overall outlook on life||
|Confidence rating of your skill at discriminating between fake and real smiles||
Should Nonlawyers Be Able to Invest in Law Firms?
Is the day coming when businesses will become shareholders and bankrollers in law firms? Attorney and blogger Anthony Volpe notes the positives and negatives on this hot issue.
Would nonlawyers understand that the duty is to the clients and not to the shareholders?
Would the public then perceive lawyers as only investment bankers looking for profits?
On the other hand, would investors give small firms the funds to finance taking on risky matters?
Alas, we have only the questions and not the answers.
British Library Partners with Google
The BBC reports that:
"The British Library has reached a deal with search engine Google about 250,000 texts dating back to the 18th Century. "
Full story here.
“It will allow readers to view, search and copy the out-of-copyright works at no charge on both the library and Google books websites.”
I know some law professors (and librarians) who will be very excited about this news!
10 Ways to Avoid Malpractice Claims
10 Ways to Avoid Malpractice Claims
Over at Attorney at Work, practice management consultant Dan Pinnington suggests 10 way to avoid malpractice claims. His big advice is to get things done on time and have good communications with your client. Here is a summary of his advice:
1. Get it in writing. (the terms of engagement)
2. Get the money up front.
3. Manage client expectations.
4. Document, document, document.
5. Meet or beat deadlines.
6. Don’t annoy clients.
7. Ask how you’re doing.
8. Send interim and final reporting letters.
9. Don’t sue for fees. This almost guarantees a counterclaim for negligence.
10. Listen to your gut.
June 22, 2011
A report from last week's "Future of Law Libraries" conference at Harvard
Here's a link to the list of topics and speakers (which, as you can see below, included some very heavy-hitters from the library, "information management" and media worlds).
And here are links to videos from the various presentations:
Video 1: Welcome, Bob Berring, Carl Malamud, Joe Hodnicki
Video 2: Dick Danner, June Liebert, Robert Darnton, Siva Vaidhyanathan
Video 3: Michelle Wu
(For greatest success in streaming these videos, use the most recent version of the Quicktime player and open the videos using the right click>open with function).
Tips for a successful job interview
Below is an excerpt of a Q & A between Vivia Chen of lawjobs.com (in bold) and a BigLaw partner regarding tips for making a good impression during a job interview.
[Please describe the] traits that you look for [during a job interview].
I look for authenticity. I want to make sure that I understand who this person is.
What do you mean by "authenticity"?
What's important is meaningful conversations during the interview. I've had conversations with people about their summer jobs, undergraduate thesis, subjects totally unrelated to law--esoteric topics.
Sounds like you'd rather not talk about law during the interview.
Well, I don't think [law students] know much about law at that stage. Personally, I like candidates that are passionate about something: a cause, a subject, a hobby. I find that candidates who are engaged with an issue or a subject, both emotionally and intellectually, tend to be people who will be successful lawyers and interesting colleagues.
It also doesn't sound like you're a fan of behavior interviews, where applicants take a psychological test, or ones that grill law students about hypothetical legal problems that some firms advocate.
Oh, that's so silly. What does that accomplish? The best thing is to hire someone who's smart and passionate about something.
What other types of questions do you avoid?
To me the silliest question is: "Why did you decide to become a lawyer?" It's the last refuge of someone who has run out of things to ask.
You can read the rest of the interview here.
Writing Tip of the Week
Help your reader understand the large-scale organization of your memo or brief with introductions, headings, subheadings, thesis paragraphs, and conclusions.
1. Introduction. Sets up subsections. Usually includes rule. Sets context. Includes material that doesn’t belong under the headings.
2. Headings and subheadings tell the reader what is in the section or subsection. Full sentences. Headings and subheadings in an objective memo can be positive statements or questions. For this class I want you to use questions. Make sure your headings and subheadings clearly reflect the content of the section or subsection.
3. Put thesis paragraphs before subdivisions. Thesis paragraphs introduce the subsections. There are some very good examples in Shapo.
4. Conclusion. The conclusion should sum up the discussion section. If the discussion consists of three main sections, your conclusion should comprise four sentences. Overall conclusion, conclusion I, conclusion II, conclusion III. You can add additional sentences for additional subsections.
Research Tips for Summer Clerks
Librarians often receive emails, phone calls, and visits from former students who are now clerking in the “real world” and wish they would have given their research course more attention. Conversations with these students help me adapt my research teaching and add more stories to the mix for future students. Sometimes I’ll even ask a 2L to come back and talk to my next group of 1Ls about his/her summer clerkship experience and how it relates to legal research.
A recent article in the Student Lawyer (Observations for Summer Research Success by Shawn G. Nevers) offers some tips:
- Understand the research tools available to you (may be less than what you have available through your law school library);
- When receiving the research assignment, ask questions and clarify the request;
- Check in with the law librarian if you have questions;
- Spend time planning & strategizing your research; and
- Keep a good record of your research and results.
Article available on SSRN at http://www.ssrn.com/abstract=1864242
I would add a plug for checking your law school library website and any research guides that may help point you to free resources you can incorporate into your research strategy. Research guides prepared by your law librarians can also help you refresh your memory on how to research a particular topic.
Interdisciplinary Teaching in Land Use Planning
Over at the Land Use Prof blog, Tony Arnold offers a description of an interdisciplinary Land Use and Planning Law course, which includes both law students and graduate students in urban planning:
The course has a heavy skills development focus with students participating in interdisicplinary teams on a simulated board of zoning adjustment hearing on a CUP application for a biofuel plant in a low-income minority neighborhood (based on a real case study) and preparing substantial service-learning reports on complex land-use issues for government agencies and nonprofit organizations. The students learn a lot by working on real-world problems and having to work in teams. The projects also pull the students much more deeply into cutting-edge issues than merely reading and discussing cases in the classroom can do (although we do some of that, as well, to prepare them for their projects).
This interdisciplinary courses teach students in one discipline how students and professionals in other fields view the same issue and think about problem solving in different ways. This is important knowledge to have.
The nature of these courses opens another issue, which needs consideration. When clinicians and legal research and writing professors take a role in a substantive course, are they just assisting in the doctrinal course or are they also offering different ways ofthinking about the subject matter?
June 21, 2011
The "Law School Bubble"
All the data below has already been reported by the press (in some cases, repeatedly) but the way this website has compiled it makes the point quite dramatically. Courtesy of thebestcolleges.org (with a hat tip to the TaxProf Blog):
From: The Best Colleges
Tips for making the most of LinkedIn
From the blog Attorney@Work:
Five Extremely Useful Things To Do with LinkedIn
- Create a resume. Having filled in your LinkedIn profile information, you can quickly and easily turn it into a gorgeous and professional resume any time you want. The Resume Builder will suck your professional past into a prebuilt template of your choosing and make it look good. Then, just edit as you wish, catalog it online and share a custom link or a PDF with anyone who needs it. Which, given how gorgeous this is going to look, will be literally everyone.
- Export your connections. Click on “My Connections” and you’ll see a complete list of all your personal LinkedIn contacts. You may wish to access this list anytime you are looking for up-to-date information about a contact. Or, just periodically dump it into your Microsoft Outlook, Mac Address Book or other email contacts list. To do this, find “Export Connections” near the bottom of the page, click it, select the format and “Bob’s your uncle!”
- Keep track of someone (or something). If you haven’t already discovered it, there is a “Search” text box near the top of the LinkedIn screen. Type in the zip code, title, industry, name or whatever you wish to search on. Again, near the top, you’ll find a “Save This Search” link. You can save as many as three searches this way and you’ll be notified by email every time the results change for that search. You can get sophisticated with your searches, too. Say you want to locate people who have handled marketing for Geico. Just enter “Geico” and “Marketing” and search. You’ll get a list of people who have been involved in Geico marketing in the past or present—either in or outside your personal network.
- Find someone in a company. Would an introduction to an executive with a specific company in your area bolster your marketing plan? Well then, don’t hesitate to figure out who you know who can make that introduction. Insert the name of the company into the “Search People” field, sort the results by relationship and then fine tune the results with the criteria in the left margin. To find someone in your personal network who can introduce you to a second-degree contact, just click on “Shared Connections” under their name.
- Get found. You’ll also want to make sure that people interested in the type of thing you do will find you when conducting LinkedIn searches. Keywords and key phrases are the answer. What are the critical terms and phrases used in your practice area or industry? The more of those you include in your profile, the more likely you are to be found. If you’re not sure what keywords to use, just try Google AdWords Keyword Tool. It will tell you what terms people search.
Read more here.
Social Media Technology and Going Solo
Anika Anand with MSNBC Careers recently reported that recent law grads are succeeding (and thriving) in solo practice through the use of social media and other technology tools. Full article here.
One recent graduate who was interviewed reported “Basically I just need a laptop and cell phone and I’m off and running.” Another graduate uses social media, including a blog, Facebook and Twitter, to market and grow her business.
New Legal Writing Exercises
Dress Code for New Employees
What should your graduating students wear at the new job? My best advice: Look around and see what your contemporaries are wearing. If you want some very conservative advice, here’s guidance for new financial analysts on the Wall Street Journal’s Finance blog. Be sure to click on the link in the posting for the UBS dress code and learn what underwear (!) you should be putting on.
June 20, 2011
Two more law schools voluntarily reduce class size; one at substantial financial sacrifice
We had previously reported back in March about a couple of law schools that have decided to admit fewer students this fall in response to the poor job market for lawyers. Now, according to Above the Law, two more schools have done likewise - Creighton and Western New England. For Creighton, though, this isn't a one-time adjustment in response to lower applications. (A cynic might say that some schools are reducing class size in order to maintain their USNWR ranking which considers the selectivity of the incoming class). Creighton's Dean Culhane is instead planning on reducing the class size for the next four years and that means forgoing about $600k in revenue for each of those years. From the Omaha World-Herald (via ATL's coverage here):
A newly minted law degree is not turning out to be the passport to lucrative employment that aspiring lawyers expected when they signed up for law school and took on tens of thousands of dollars in student loan debt.
With the tight job market in mind, the Creighton University School of Law recently informed its alumni that it would be reducing its class size by 20 students for each of the next four years.
“Although demand for a Creighton legal education remains high ... we feel a moral obligation to admit fewer students until employment prospects for new attorneys improve,” Dean Marianne Culhane wrote in a letter to alumni.
Officials with the University of Nebraska and the University of Iowa Colleges of Law said they have hired more career placement staff members rather than reduce their class sizes.
Creighton's classes currently are around 150 to 155 students. Starting this fall, the class will be about 135 students, said Patrick Borchers, vice president for academic affairs and a former dean of the law school.
Borchers described Creighton's approach as somewhat unusual. Few schools are cutting class sizes because of the job market, even though graduates are having a tougher time finding work.
“Trust me, there isn't a law school in the country that isn't feeling the same kind of pinch,” he said. “This is how we're responding to it. There probably are other (law schools) doing this, but there aren't a whole lot of them.”
Though a class-size reduction brings some advantages, such as a smaller student-teacher ratio, Borchers said it is a tough decision, financially, to make.
With law school tuition at $30,000 a year, Creighton will forgo about $600,000 in annual revenue. In its letter to alumni, Creighton sought additional financial donations.
NALP, an association for legal career professionals, reported this month that 2010 law school graduates nationwide faced the worst job market in 15 years and one of the worst in the past three decades. The recent economic recession cost thousands of attorneys across the country their jobs.
It's a small but important gesture for the faculty to show recent grads that it is willing to share in the hardship of a lousy job market. You can read more from the World-Herald here.