July 9, 2011
Teaching Statutory Interpretation
Considering that a great deal of law is statutory, statutory analysis is a foundational skill for law students. I think that a course in statutory analysis should be included in the first-year curriculum. However, since only a few law schools have such a course in the first year, it is often up to legal writing teachers to introduce law students to statutory interpretation.
Almas Khan has just posted a short article on SSRN entitled Teaching a Master Class on Legislation to First-Year Legal Writing Students, which discusses how to teach statutory analysis to first years in one two-hour class. He uses the examples and exercises in Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans, Writing and Analysis in the Law (5th ed. 2008), which are excellent examples and exercises for teaching statutory analysis. In addition, Public Citizen v. Dept. of Justice, 491 U.S. 440 (1989) is an excellent case to use for teaching statutory analysis because the majority opinion (Brennan) adopts a purposivist approach, while the concurring opinion (Kennedy) uses a textualist approach.
Teachers must nip in the bud unruly or disrespectful classroom behavior
This post from the Harvard Business Review pertains to managers but the advice is equally applicable to teachers who may be even more susceptible to the "people-pleaser" mentality. Substitute "student" for "employee," "school" for "work" and "teacher" for "management" and you get the idea.
It's amazing how much one troubled employee can undermine a department's productivity. A staff member who routinely makes cutting remarks, elevates him or herself at the expense of others, or spreads undermining gossip can sink a department's morale fast. Otherwise positive and productive team members begin to dread coming to work, and the group's best thinking gets siphoned off the company's mission as everyone scrambles to stay out of the bully's crosshairs.
. . . .
The question on the tip of everyone's tongue when this type of nightmare takes hold is, "Why doesn't senior management do something?" It's the job of the boss to enforce consequences when someone gets out of line. Emotionally exhausted peers often complain passionately and privately to their superiors in these situations. They fantasize that the troublemaker will be removed, put on probation, or at least given a firm reprimand. Unfortunately, in many such cases, justice seems to proceed at a glacial pace. What's the holdup?
When an office bully starts running wild, there are often two employees to blame. The easy one to spot is the one creating the emotional carnage. The less obvious, but equally culpable, individual is often the manager who fumbles the job of taking this employee to task promptly. The problem limiting this manager's potential is often embedded in his or her power style.
Many of the best leaders and managers in the business world operate from the Pleaser power style. Pleasers are hard-working, inspire loyalty, and tend to listen thoughtfully to their clients and colleagues. When they are operating from their strengths, Pleasers can become the glue that holds a positive corporate culture together. Unfortunately, when their blind spots kick in, Pleasers can be so fearful of losing approval that they don't confront challenges promptly and directly.
Find out how to gain control of the bully by clicking here.
Do Law Firms Care How Their Clients Think They’re Doing?
At the Legal Intelligencer blog, Jaime Bochet has her doubts. She points to a recent survey by LexisNexis:
The AmLaw Daily, recently reported that the results of the Lexis survey (found here) which included responses from 415 firm personnel worldwide, said, "More than 70 percent of law firms responded that client feedback affects the way their lawyers conduct business, yet fewer than half -- 48 percent -- formally solicit client critiques and just one-third communicate the feedback to lawyers."
The problem doesn’t seem to be lack of a budget to do the research:
"Thirty-eight percent of respondents said they failed to solicit client feedback because they lacked the staff and resources to do so, but 64 percent of those proactive firms said feedback programs consumed less than 5 percent of their marketing budgets."
It’s time for some education in basic business and marketing .
July 8, 2011
Why BigLaw is like the NFL draft (and why loan-debt is like lots of concussions)
Admittance into a top-14 law school, like a scholarship from a top-10 college football program, is the culmination of a lifetime of striving. Of the over 100,000 high school seniors who play football, fewer than 3,000 sign Division I letters of intent. Similarly, the top 25% in Harvard Law’s 2009 class had an average GPA of 3.95 and a LSAT score of 175, which puts them in the 99th percentile of the over 100,000 test takers each year.
Yet, despite overcoming nearly impossible odds, each group still has the toughest test of their lives ahead of them — each other. NFL teams rarely draft players not at the top of the depth chart, even at powerhouses like Texas or Oklahoma. And even at Harvard or Columbia Law, “Big Law” firms — those with the coveted $160,000 starting salaries — don’t reach too far below the median class rank when selecting first-year associate.
As you go down the ranks, the odds only decrease. NFL players from non-BCS conferences were usually top-tier starters in college, while top-50 law schools typically send only 10-25% of each class to “Big Law”. And just as there are always a few DII and DIII players in the draft each year, students from tier 2 and tier 3 law schools occasionally beat out graduates of elite schools for jobs. But “small school” success stories are the best of the best — collegiate All-Americans, the top 1% of their class in law review.
Of course, you cannot solely judge the experience of playing collegiate sports or earning a graduate degree by their end result. NCAA telecasts are full of former athletes extolling the virtues of their collegiate experience, declaring, “Most of us will be going pro in something other than athletics.” Proponents of law school, meanwhile, trumpet a JD’s versatility in the job market.
However, each has hidden costs that take a substantial long-term toll on those involved. The newest research on concussions indicates that the gravest threats to players are not the highlight-reel hits, but the trauma of endless low-impact collisions over years of practice. Football players, especially linemen, usually put on 30-40 pounds of muscle in college, locking themselves into eating habits that will become increasingly unhealthy when they no longer burn thousands of calories a day in practice.
Law students who miss out on “Big Law” in 2L OCI are often left with over $100,000 in non-dischargeable student loan debt that can take most of their professional lives to pay off. The high starting salaries of first-year New York City associates hide the bimodal distribution of law incomes — most lawyers earn modest middle-class salaries and have little opportunity to transfer into the “Big Law” salary structure, not when there are thousands of new students clamoring for spots coming in behind them each year.
For the lucky few that do manage to scale the mountain, the dream often differs harshly from reality. Big law firms are notorious sweatshops where first-year associates are pushed to work more than 2,000 billable hours a year, most of it both extremely monotonous and incredibly stressful. Under the still widely used Cravath model of law-firm hiring, only a handful of a class of 35-40 associates last at a firm long enough to make partner. The NFL is just as tough — for every Peyton Manning or Ray Lewis, there are 10 special teams players clinging to a roster spot. The average career lasts only 3.5 years.
So when you watch a 22-year old walk across the stage of the NFL Draft to shake the commissioner’s hand, take a second to look at the young lawyers and agents in suits surrounding him. They too have beaten odds just as long to get there.
Pro Bono Hours Are Dropping at the Big Firms
From the American Lawyer:
Just as large U.S. law firms were returning to solid profitability last year, pro bono activity was dropping sharply, with average lawyer hours among the top 200 firms down 8 percent to 56.5 hours, reversing a decade of steady growth, according the annual pro bono survey in the July issue of ALM’s The American Lawyer.
The decline was even sharper among the top 100 firms, whose average pro bono hours per lawyer plummeted 10.8 percent. The next hundred-largest actually increased average hours 2.1 percent. Average profits per partner climbed the 8.4 percent last year at the top hundred firms and 3.4 percent at the next hundred.
The probable explanation: It’s the associates who do most of the pro bono work. Now, with the firms getting more paying work, the associates are spending more of their time on paying clients.
The effect of stress on the brain
From the Harvard Business Review:
What toll does it take, over time, if you get too little sleep; skip breakfast or settle for something unhealthy; struggle with a relentlessly challenging commute; attend meeting after meeting with no breaks in between; pump yourself up through the day with multiple cups of coffee or sugary snacks; deal with hundreds of emails that accumulate in your inbox; remain at your desk for lunch if you eat lunch at all; push through fatigue in the afternoon; head home at night feeling exhausted, but continue to check email through the evening; work on the weekends; and limit your vacations to no more than a week or two, if you vacation at all?
. . . .
"Allostatic load" is a term coined by the neuroscientist Bruce McEwen that refers to the physiological consequences — most especially on the brain — of chronic exposure to relentless demand. When fight-or-flight hormones circulate in our body for too long, keeping our arousal high, they become toxic — not just physically, but also emotionally and mentally.
The most immediate problem with the fight-or-flight state is that our pre-frontal cortex begins to shut down. We become reactive rather than reflective. We lose precisely what we need most in these complex times: the capacity to think analytically and imaginatively; to embrace nuance and paradox rather than choosing up sides; and to take a long-term perspective rather than making the most expedient choice.
It's not good for us . . . .
To learn about ways to mitigate the effects of stress, click here.
Why you probably shouldn't join the "I hate Casey Anthony" Facebook group
Your next job application could require a social media background check. Odds are, you have no clue what that means. Nobody does. It's new and scary and probably scours the Web for pictures of you puking on the beach.
But screw speculation. We wanted to know. So we ran background checks on six Gizmodo employees.
Here's what we found, and why you should both freak out about and embrace it.
First, some context: In May, the FTC gave a company called Social Intelligence the green light to run background checks of your Internet and social media history. The media made a big hulabaloo out of the ruling. And it largely got two important facts wrong.
Contrary to initial reports, Social Intelligence doesn't store seven years worth of your social data. Rather it looks at up to seven years of your history, and stores nothing.
The second was the idea that it was looking for boozy or embarrassing photos of you to pass along to your employer. In fact it screens for just a handful of things: aggressive or violent acts or assertions [like joining an online "hate" group?], unlawful activity, discriminatory activity (for example, making racist statements), and sexually explicit activity. And it doesn't pass on identifiable photos of you at all. In other words, your drunken kegstand photos are probably fine as long as you're not wearing a T-shirt with a swastika or naked from the waist down.
Basically, it just wants to know if you're the kind of asshole who will cause legal hassles for an employer.
Click here if you want to find out what a typical "Social Intelligence" report finds as well as what it misses.
Hat tip to Corey Friedman.
July 7, 2011
In memory of U. Colorado Law Dean David Getches
I was shocked and deeply sadden to learn that CU Dean David Getches passed away on Tuesday from pancreatic cancer at age 68. I was lucky to have had the chance to work with him when I was at CU. He was a great man and will be profoundly missed by everyone who knew him.
SCOTUS Chief Justice Roberts criticizes legal scholarship for being out of touch with practicing bar
From the American Constitution Society blog:
Chief Justice John Roberts Jr. at the recent Fourth Circuit Judicial Conference grabbed a few relatively easy applause lines – by knocking the work of law professors.Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”
CJ Roberts' full remarks can be heard heard (and seen) on C-SPAN by clicking here.
Hat tip to the ABA Journal blog.
It is unethical for lawyer to send Facebook "friend" request to represented party as discovery tactic
In this advisory opinion, the San Diego County Bar Legal Ethics Committee (Op. 2011-2, 5/24/11) considered a hypothetical in which the plaintiff's attorney in a wrongful termination action "friends" high ranking employees of the employer-defendant hoping they will make comments favorable to the plaintiff. From the BNA Electronic Commerce & Law Bulletin (subscription required):
A lawyer may not ethically send a “friend” request to an opponent or a potential witness with the goal of getting inside information for a client's matter. . . .The committee concluded that a friend request intended to elicit information from a represented party about the subject matter of the client's representation amounts to an improper ex parte contact, no matter how the request is worded or transmitted.More broadly, the opinion declares it deceitful and therefore improper for a lawyer to send a friend request to potential witnesses without disclosing the purpose of the request, regardless of whether the witnesses are represented by counsel.
The committee found that the generic email Facebook sends to the recipient of a "friend" request is enough to alert the person that the communication is “about the subject of the representation” within the meaning of California Rule of Professional Conduct 2-100 and ABA Model Rule 4.2 if the attorney's motive is to obtain private information for use in the client's case . The committee went on to find that "the attorney's duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.”
You can read the full text of the ethics opinion here.
Our Role as Teachers and Supervisors
Here’s an exercise: Write the name of the best leader, teacher, or coach you've ever had. Write the name of the individual who made a difference in your life, who seemed to care more about you than you cared about yourself.
According to Professor Tom DeLong at the Harvard Business School, his experience discloses a striking disparity of results, depending on the individual’s age:
You'll find that if you're over 40, you are able to name at least one person, and often two or more. Typically, one of these individuals is a former boss. If you're younger than 40, however, you may come up with one name, but it's rarely someone with whom you've worked; you name an athletic coach or a high school teacher.
This finding does not speak well of the business world, presumably including the world of law practice. However, for those of us who teach the under-40 crowd, it emphasizes the importance of our role as mentors. Here’s the link to the Harvard Business Review online.
Where the jobs are: Tech, healthcare and regulatory law
There are a few small bright spots in a still somewhat dismal job market for lawyers, according to NALP Executive Director James Leipold. Technology, healthcare, and regulatory work are some practice areas showing signs of recent growth, Leipold commented recently at the Northeast Association for Pre-Law Advisors. While the entry-level market is still tough, the lateral market seems to be picking up steam, according to Leipold. California and New York have shown signs of bouncing back first in the lateral market.
Small firms of 2 to 10 attorneys showed some growth in hiring, Leipold said, in the NALP Class of 2010 Employment Report issued this month. Jobs with firms this size represented 39.1 percent of all private practice jobs taken by members of the Class of 2010, up 7.5 percent from the Class of 2008, according to the NALP Report.
In other good news, at least more of the associates starting at the large firms seem to be resuming normal start dates instead of being deferred, according to the NALP Report.
"To the extent that there is a bright spot in the employment profile for this class it is that there were fewer graduates who had their start dates deferred," Leipold said.
The bad news is that the NALP predicts hiring of new grads will remain flat, or slightly decline, through the class of 2012.
July 6, 2011
Median salary for 2010 law grads takes a big dip
From the National Law Journal:
The employment news just keeps getting worse for freshly minted lawyers.
Not only did fewer recent graduates land law firm jobs, as the National Association for Law Placement reported in June, but they also are earning less than their predecessors.
A NALP report released on July 6 concluded that the median salary for the class of 2010 in full-time jobs as of February was $63,000—$9,000 less than the $72,000 median salary reported by the class of 2009. The average salary for the class of 2010 also declined, to $84,111 from $93,454.
When NALP adjusted its figures to account for the fact that high-earning graduates tend to report their salaries in larger numbers, the national average for the class of 2010 fell even more, to $77,333.
It's not that employers were paying less, said NALP Executive Director James Leipold. It's that fewer recent grads were finding work at the large firms that pay the highest salaries.
"Aggregate starting salaries fell because graduates found fewer jobs with the high-paying large law firms and many more jobs with the smallest law firms, those that pay the lowest starting salaries," Leipold said. "No single legal employment sector really saw its starting salary change very much from the previous year."
For instance, slightly fewer than 51% of the employed members of the class of 2010 found law firm jobs, compared to nearly 56% the year before. Not only that, more recent graduates were working at smaller firms: 53% of them were at firms with 50 or fewer lawyers. That figure was 46% for the class of 2009.
The median law firm salary remained significantly higher than the overall median for the graduating class, at $104,000. Still, that figure was down $26,000 from the $130,000 law firm median reported the previous year. When adjusted for reporting inconsistencies, the average law firm salary was $93,748. According to NALP, the number of firms offering starting salaries of $160,000 has dropped.
There were no changes in the median pay for government and public interest jobs. The median starting salary for government jobs was $52,000, while recent graduates in public interest jobs earned a median $42,900.
Overall, the percentage of recent graduates taking private practice jobs dropped by nearly 5%.
Computers best for creating documents; tablets best as attorney's electronic briefcase
From The Legal Intelligencer:
Desktop and laptop computers are giving way to tablet computing, led by the iPad, and the numerous applications that are specifically being designed for the legal profession or that are easily adaptable to the practice of law. These devices and applications are game-changing in their impact.
As a result, the days of carrying heavy trial bags and pushing dollies loaded with banker boxes are over. Despite the doubters, the iPad has arrived and has ushered in a new way for lawyers to manage and carry information. Let me be clear about one thing, however: I am not suggesting that the iPad, or any other tablet-based device, is a complete substitute for a desktop or laptop computer.
As others have correctly pointed out, the iPad is an information consumption device, not an information creation device. For example, the information for this article was collected on an iPad, but the article was drafted on a laptop computer. In fact, I often work on a computer with an iPad at my side as a handy way to refer to research documents. In this way, I have the equivalent of a dual monitor setup that I can use anywhere.
. . . .
In my practice, the iPad serves as a media consumption device that I use to store and organize digital documents, photographs, video files and sound files. It has not yet enabled me to realize the dream of a paperless office, but I do now have a paperless briefcase. There is no longer any reason to lug around bulky accordion folders and three-ring binders. My briefcase, holding little more than my iPad, is light, uncluttered and easy to carry. Unlike a desktop or laptop computer that requires constant scrolling on the screen to read a document, the iPad provides a comfortable full-page display. In addition, the iPad is an "instant-on" device and there is no annoying boot-up time to suffer through. Reviewing documents, reading and responding to e-mail messages, surfing the web, checking my calendar and contact lists, and conducting legal research are all functions that have been enhanced by the iPad. For those who do a lot of flying, the reclining seat of the passenger in front of you will not prevent you from using your iPad, as it often would if you were using a laptop.
You can descriptions of several iPad apps made specifically for lawyers here.
Writing Tip of the Week
Creating Coherence: Music & Writing
There are many ways to create coherence and flow in a paragraph. The most important one is for the writer to think in large blocks–to think in units of several sentences instead of one sentence at a time. It is very helpful to read your writing out loud. If your writing sounds choppy, it reads choppy.
Writing prose is much like composing music. A composer doesn't compose note by note or even phrase by phrase. Rather, a composer thinks in large blocks and establishes long-range goals. Music is constantly going forward toward a goal or relaxing from that goal. Each phrase has a dynamic curve; there are peaks and valleys of loudness and emphasis. For example, most musical phrases increase in loudness until about two-thirds of the way into the phrase then get softer. Phrases combine into larger groups, and these larger groups also possess a dynamic curve. The combination of phrases flows because of this dynamic curve and because one phrase derives from another. Finally, most works have a single goal (the climax) and a single large-scale dynamic curve.
Like music, prose has a dynamic curve. When you speak, your voice changes in tone and loudness, depending on the emphasis desired, punctuation, and place in the sentence. When a writer is aware of the dynamics of the prose, he can use these dynamics to create continuity. Each sentence should have a dynamic curve, and the dynamic curves of adjacent sentences should flow together naturally. In addition, the writer should consider the dynamic flow of the paragraph. The curve should start with the topic sentence and push to the concluding one.
A composer also carefully organizes the phrases in order to create a coherent unit. Each phrases flows from the previous one. Phrases that belong together have only brief articulations between them, while medium-size units are separated by longer articulations. Repetitions connect phrases, and short transitional phrases connect longer units. Primary and subordinate material are properly placed.
In prose, each sentence should flow from the previous one. Phrases or sentences that belong together should use punctuation that produces brief pauses (commas, semicolons, etc.). Distinct units should be separated by long pauses (paragraph breaks). A writer can connect sentences by subtle repetitions and using connecting words or phrases. The writer should properly place primary and subordinate materials.
Transactional Lawyering: The Most Intriguing Contract Provision
Teresa Wright was a well known and accomplished actor on stage, screen, and television. In 1942, in her early 20s, she signed a contract with MGM. Here’s the intriguing contract provision:
The aforementioned Teresa Wright shall not be required to pose for photographs in a bathing suit unless she is in the water. Neither may she be photographed running on the beach with her hair flying in the wind. Nor may she pose in any of the following situations: In shorts, playing with a cocker spaniel; digging in a garden; whipping up a meal; attired in firecrackers and holding skyrockets for the Fourth of July; looking insinuatingly at a turkey for Thanksgiving; wearing a bunny cap with long ears for Easter; twinkling on prop snow in a skiing outfit while a fan blows her scarf; assuming an athletic stance while pretending to hit something with a bow and arrow.
July 5, 2011
In defense of the billable hour
Alternative fee arrangements are all the rage today given that market conditions for legal services have put the client in the driver's seat. But there are times when even the most parsimonious client will get better value by paying a high hourly billing rate. From the online ABA Journal:
“Before you get caught up in the [alternative fee arrangement] stampede, remember that hourly billing can still work when done right. Both are part of a GC’s cost-control portfolio,” John Wallbillich wrote in a recent post at Wired GC titled "Two Cheers for Hourly Billing."
Although he is quick to distinguish hourly billing as an accounting convention from the regime of billable hours designed to boost law firm revenue, Wallbillich addresses the need for general counsel to more closely examine the expertise they receive before balking at a high billable rate—as a more experienced (and costly) lawyer may be able to get a job done more efficiently. Additionally, by choosing firms with busy lawyers—who are more geared to finding solutions rather than generating fees—GCs can better avoid outside counsel looking for work to fill hour requirements, Wallbillich says. And in-house lawyers shouldn’t count out lower-cost quality firms.
New law grads flock to public interest work
From the National Law Journal:
Harvard's Office of Public Interest Advising is thriving, with the equivalent of eight full-time counselors and a steady stream of students seeking career advice.
The growth of that office reflects a larger shift in the way public interest law careers are perceived and how young lawyers prepare for those jobs. More freshly minted lawyers are opting for public interest careers — the percentage of new law graduates taking those jobs grew from 2.1% in 1990 to 6.7% in 2010, according to the most recent data from the National Association for Law Placement, or NALP. (That figure jumped by nearly 2% in 2004, when the organization began including public defenders — prosecutors are in a separate government category.) At the same time, the number of graduates from American Bar Association-approved law schools increased by 21%, meaning that the total number of new public interest lawyers is up significantly.
Among the factors leading to that growth are improved job support on law school campuses for public interest-minded students, more clinics and internship opportunities, more programs to help public interest lawyers manage their educational debt, and the founding of several groups focused on funding public interest careers.
You can read the rest here.
Tips for New Legal Writing Teachers
1. Make sure your written comments are clear. Not only do your students have to communicate with their readers so do you.
2. Don't assume that the students are not working hard. Be patient.
3. Make sure that your students don't feel stupid or lost; help them realize that all their classmates are going through this.
4. Writing is a process (step-by-step). This also applies to teaching legal writing.
5. Convince your students that writing is an art, not a mechanical process.
6. Put positive comments on the students' papers. Not only do positive comments encourage the students, they show the students what they are doing right so they can keep doing it.
Roundtables on Teaching Transactional Subjects
Tina Stark has alerted us to three roundtable discussions on the Conglomerate blog:
Corporate Finance roundtable posts - click here
Contracts roundtable posts - click here
Banking/Financial Institutions roundtable posts - click here.