Saturday, July 23, 2011

Facebook and Legal Practice: Legal and Ethical Issues

Kathleen Vinson has published an important article on the impact of Facebook and other social media on the practice of law. The Blurred Boundaries of Social Networking in the Legal Field: Just 'Face' It, 41 University of Memphis Law Review 355 (2010). Her major conceptual point is that we use social media in both our personal and professional worlds, and the unclear boundary between these two uses canlead to legal and ethical problems. Here is the abstract:

A lawyer gets a third party to "friend" an adverse witness; a judge "friends" defense counsel during a trial; a juror posts a poll on Facebook regarding the outcome of the case; a litigant boasts on Facebook about how much money he anticipates recovering from his lawsuit; a lawyer vents on Facebook about judges, clients, and opposing counsel; photos of a defendant on Facebook show him taking drugs and holding a weapon; and photos on Facebook show a lawyer partying during the week when he was granted a continuance due to an alleged death in his family. Indeed, Facebook can be a treasure trove of information, not only for those with whom users intend to share, but also to unintended audiences. This article explores how the pervasive use of Facebook plays a role in the legal field, puts a spin on old legal issues, and creates new ones. The article examines how the relationship between social networking and members of the legal community continues to evolve, and blur the boundaries between personal and professional worlds, creating legal and ethical minefields. The article provides guidance regarding how to navigate these minefields, beginning in law school and continuing throughout the legal profession.


July 23, 2011 | Permalink | Comments (0)

New Article on Power

I have posted a new article on SSRN entitled Power in Contemporary Legal Thought: Postmodernism versus Behavioral Biology by Scott Fruehwald.


This paper will contrast views of power under postmodernism and behavioral biology and how these views affect law, government, and society. Part II will discuss power and postmodernism. It will examine the postmodern concept of power, then analyze offshoots of postmodernism, such as critical legal studies, feminism, and critical race studies in connection with power and law. Part III will present a theory of power and law based on behavioral biology. It will examine behavioral biology and power, contrast behavioral biology and postmodernism concerning power, and contrast notions of power under behavioral biology and offshoots of postmodernism. This paper will conclude that postmodern notions of power are faulty and unworkable, while behavioral biology offers useful ideas on power.


July 23, 2011 | Permalink | Comments (0)

Bibliography of recent scholarship on the legal profession - Part 4

The fourth installment. From Bobby Click, Recent Law Review Articles Concerning the Legal Profession, 35 J. Legal Prof. 173 (2010). Part 1 of this biblio can be found here, Part 2 here and Part 3, here.

4. Malpractice, Misconduct, and Ineffective Assistance of Counsel

Barbara Fedders, Losing Hold of the Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency Representation, 14 LEWIS & CLARK L. REV. 771 (2010). In this article, the author addresses the issue of ineffective assistance of counsel that occurs in juvenile court and the lack of redress that is available to clients when they receive ineffective assistance.

Aliza B. Kaplan, A New Approach to Ineffective Assistance of Counsel in Removal Proceedings, 62 RUTGERS L. REV. 345 (2010). This article discusses ineffective assistance of counsel as it exists in removal proceedings--one of the most common types of immigration hearings. The author analyzes current standards for such proceedings, makes a number of recommendations on how the standards should be changed, and then makes a few recommendations that she thinks will help avoid ineffective assistance of counsel in removal proceedings in the future.

Shana-Tara Regon, Bringing an Unlawful Verdict to Light, CHAMPION, Feb. 2010, 12 (2010).

Paul J. Sampson, Ineffective Assistance of Counsel in Plea Bargain Negotiations, 2010 B.Y.U. L. REV. 251 (2010). This article addresses ineffective assistance of counsel, as it exists in plea bargain negotiations,  [*180]  through an analysis of the major case law in the area and a defendant's constitutional right to counsel.


July 23, 2011 | Permalink | Comments (0)

Friday, July 22, 2011

Another Typing Trick: Large & Small Caps

The other day, I posted a very helpful article of typing shortcuts. Please see below. Here's another one that comes in very handy for those who write law review articles and have to deal with large and small caps. Just type the relevant part of the citation, shade it with your mouse, and click Control+Shift+K.

To get out, just reclick that formula. Of course, none of  this goes to the real question: Why in heaven's name  do  law reviews  still use large and small caps?

Handy Keyboard Tricks for Word

A good way to increase your typing efficiency is to keep your hand off the  mouse as much as possible. In an article on Attorney at Work, Deborah Savadra shows us how with a number of “Hotkeys.” Here are a few examples:

  • Boldface: CTRL+B
  • Italicize: CTRL+I
  • Underline: CTRL+U
  • Increase font size: CTRL+SHIFT+.
  • Decrease font size: CTRL+SHIFT+,

Here’s one that she especially recommends:

Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.


July 22, 2011 | Permalink | Comments (3)

Legal Research After Law School – Free & Alternative Resources

After the “free” access to Westlaw and LexisNexis is no longer available, what is a newly graduated law student to do when asked to do legal research?  I’m sure that a librarian at some point during their law school career encouraged them to explore the many free and low-cost alternatives to Wexis, but it never gets more real than when they hit the firms.

Here is a link to our library’s guide to free internet legal resources.  One tip I give students is to look to a law library’s website as a gathering place for information like this.  If they find themselves needing to do research in a different jurisdiction, look to the law school libraries in that jurisdiction for guides.  Our Minnesota guide is here.   Most law school libraries have a wealth of information on their websites that is useful for practitioners. 

New graduates should also be aware of services that may be available through their local bar association.  Many states have included CaseMaker or FastCase as part of their bar membership. 

I would also encourage recent graduates to consult with their law firm/corporate librarian when they need research assistance.  If that is not an option (and even if it is) the librarians at their alma mater are another resource they should keep in mind!


July 22, 2011 | Permalink | Comments (0)

Maybe it's actually doubleplus unfunny

Eugene Volokh offers sensible advice about using humor in legal writing. He reiterates a common warning: “We amateur comedians notoriously overestimate how funny our jokes are.”

Eugene Volokh, Humor in Legal Writing ,” The Volokh Conspiracy, July 21, 2011.


July 22, 2011 | Permalink | Comments (0)

Summer reading list for improving your legal skills

Even though the summer is half over, there's still plenty of weekends left to grab a book and bone-up on your legal skills if you're so inclined. Check out the recommendations in each of the following categories courtesy of

Building relationships and communications

Memory skills ("Moonwalking with Einstein" is a fun, quick read)

Grammar and writing

General wellness

Stress management

Success and motivation


July 22, 2011 | Permalink | Comments (0)

Handy Keyboard Tricks for Word

A good way to increase your typing efficiency is to keep your hand off the  mouse as much as possible. In an article on Attorney at Work, Deborah Savadra shows us how with a number of “Hotkeys.” Here are a few examples:

  • Boldface: CTRL+B
  • Italicize: CTRL+I
  • Underline: CTRL+U
  • Increase font size: CTRL+SHIFT+.
  • Decrease font size: CTRL+SHIFT+,

Here’s one that she especially recommends:

Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.


July 22, 2011 | Permalink | Comments (0)

Thursday, July 21, 2011

Yet Another New York Times Law School Debate

The New York Times has another debate on legal education, this time concerning whether law school should be three years and whether passing the bar should be a requirement for becoming a lawyer.  David Van Zandt, for example, believes that the time to get a law degree can be reduced.  However, I agree with Rose Cuison Villazor who believes that we should keep the three year model, but improve it.  She states, "But for many students, if not most, decreasing the number of years spent in law school could lead to lost opportunities or, worse, detrimental results."  She continues:

"Indeed, decreasing the number of years spent in law school might have a negative impact on nontraditional students. These include working students, individuals who have been out of school for a significant number of years, students with families, individuals with various educational or cultural disadvantages, and people with disabilities."

She concludes:

"Law schools must put greater emphasis in developing and strengthening programs that would help law students become engaged and ethical lawyers. These include increasing the availability of skills-based courses, clinical and internship programs, enhanced academic support and mentoring services, providing more mentoring and offering more interdisciplinary courses. By enhancing the traditional model instead of radically changing it, many law students might just view their legal education as an important investment in time and money. "

I would add to this that one of the most important duties of a law school is to protect clients, and most students need three years to be ready to practice.


July 21, 2011 | Permalink | Comments (0)

Google Scholar Launches Citation Tracker

Google Scholar launched a service yesterday that will allow scholars to track their citation metrics.  The tool will allow authors to create and share profiles and automatically add their new articles to the profile.  Authors can choose to include the citation metrics in their profile as well, giving searchers information about how often an author has been cited.  The service is in limited release as of now, but you can try to be an early adopter by creating a profile.

Information from the Google Scholar Blog here and more information about how to create a profile (and other FAQs) here.



July 21, 2011 | Permalink | Comments (0)

Hoodwinking the Junior Associate

From U.S. Law Week online:

A law firm's allegedly misleading an associate into thinking that he would make partner as a ploy to keep him from quitting and taking a big client with him is not sufficiently malevolent to allow a claim for punitive damages in the lawyer's action for fraud and breach of contract against the firm, the New York Supreme Court, Appellate Division, First Department, held June 7. Punitive damages are not available in the typical fraud and deceit case, the court noted. Traditionally, a plaintiff must establish that there was a “high degree of moral turpitude and wanton dishonesty” that implies “criminal indifference.” The allegations here did not rise to that level, it held. Hoeffner v. Orrick, Harrington & Sutcliffe LLP, N.Y. App. Div., No. 5289, 6/7/11

How about disciplinary action? At the least, such antics should scare away potential employees.


July 21, 2011 | Permalink | Comments (0)

Strategies for effective use of Twitter

Lots of firms have Twitter accounts but few use them and even less use them well. If you're thinking about starting a Twitter account, first ask yourself "who is my audience and what is my goal?"

Then follow these steps courtesy of columnist Adrian Dayton at the National Law Journal to maximize effectiveness.

Level 1: The firm Twitter account

"Our firm has a Twitter account! Follow us to learn all of the great things our firm is doing."

If your Twitter account is self-congratulatory, it will be of little use to anyone. If it equally covers all of the firm's practice areas, you will have a similar problem. Opening a single Twitter account for your firm is taking step into the world of social media, but it is a tiny step with little chance of bringing positive or negative exposure. It is, however, a completely safe play, and represents progress of a sort. (Click here for the complete list of AmLaw 100 Firm Twitter accounts.) If we missed your Twitter account, please send it to

Level 2: Practice area (or industry group) Twitter accounts

"Our firm now has separate Twitter accounts to discuss our immigration practice, M&A, environmental and e-discovery practices. Follow these account for specific articles and information relevant to your industry."

Level 2 represents a definite improvement over Level 1. You have created a valuable source of information for others in the industry. You also begin to brand your firm as having expertise in those areas — if, of course, the information you share is timely, relevant and insightful. This helps to build the big firm brand as well, because it shows the firm has multiple areas of excellence.

The downside here is two-fold. First, who wants to talk to a practice group Twitter feed? A key element to social media — as the very phrase implies — is engagement. It is unlikely that anybody will strike up a conversation with an industry-specific Twitter account. Second, who will do the updating? Is this the job of the marketing or knowledge management departments? Do they know the industry well enough to be collecting and sharing the best articles? Wouldn't it be better to have the information updated by the experts within the firm?

Level 3: Attorney Twitter accounts

"You can observe the depth and breadth of knowledge within our law firm by observing the articles and blogs posts shared on the Twitter accounts of our lawyers."

It often is said that social media shouldn't be 100% of one person's job, but rather should be 1% of 100 people's job. This takes coordination and it takes training, but it has the potential to be the most effective use of Twitter by law firms. As lawyers tweet out news and links to articles, they are personally engaging with their audience. This opens opportunities for the individual attorneys to speak at events, write articles and provide comments for major publications. Most importantly, this helps the lawyer build new relationships that she may not have encountered any other way.

The downside is that it requires a high level of trust by the law firm in its lawyers. Some firms allow only partner-level attorneys or those with approval to tweet. My advice to firms is to properly train lawyers to engage appropriately online and then trust them. You trust them to attend cocktail parties without inadvertently revealing client confidences; start trusting them to tweet.

Twitter is only one of many tools available to law firms online. It may not make sense for firms to use it for every practice area, but for certain areas of law it can be a great fit. Areas in which I have seen great results include IP law, e-discovery, venture capital, private equity, start-up and business formation, entertainment law and employment law.

When deciding if a Twitter account makes sense for you, ask these questions

• Are there influential people in my industry using Twitter?

• What about reporters who cover my industry? Reporters from every major publication are using Twitter to find sources for their stories. If your lawyers are already blogging and writing, I highly recommend that they create Twitter accounts to share this material. Twitter presents one more platform to build your reputation.

For more advice about making effective use of Twitter for lawyers, click here.




July 21, 2011 | Permalink | Comments (0)

Advice to summer associates about how to handle feedback on your work

Except for the part about dealing with angry partners (and criticizing poor Elie), this is very good advice about how to take constructive criticism. You may want to give it to your students at the beginning of the new semester next month.

From Lateral Link via Above the Law:

Criticism is usually well-intended. Firms want you to succeed — if you are bright, well-liked, and energetic — the natural human instinct takes over. The partners running the summer program want to run a successful program. Experienced lawyers love to find new lawyers who they can bring into their groups or teams. That, in one respect, is what the summer program is all about. Criticism is not delivered in the abstract. It is delivered (1) on the spot when you have made a mistake, (2) at a quieter moment during the project when the assigning attorney has a moment to breathe, or (3) during the regular review process.

Some lawyers are just unpleasant or angry people. Usually, however, the lawyer is angry about your mistake because it disrupted his or her schedule, confused his client, screwed up an issue in a brief, or otherwise made his professional life unpleasant. The lawyer might also be angry because it was his or her fault for not providing enough instruction or sufficient oversight (but don’t you point this out). Depersonalize your reaction and learn from it. Contain your own hostility, rage, anger, and other emotional reactions. Do not head to your office in tears, vent your emotions to other summer associates or storm off into professional oblivion. At the end of the day, run five miles or bike around the lake. Go to the gym and beat the heck out of a punching bag. Get on Abovethelaw and criticize Elie for a spelling mistake in one of his posts.

After you feel good about yourself, learn and move on. Regain your focus and knock the next pitch out of the ballpark. Nothing distinguishes you faster than overcoming adversity — a trait common to all exceptional lawyers. Remember, you are still a law student. You are not expected to produce work product that is perfect and similar in quality to that of a fifth year associate. Summer associates only have a few weeks to prove themselves worthy of becoming a full-time associate. Your actual work product is one factor the firm will look at, but the firm will also look at your ability to recognize when you are wrong, learn from your mistakes, improve on future assignments, and handle less than glowing comments and critiques.

Also remember, the practice of law is a continuous learning process. Ask any attorney or partner that has been practicing law for several years. Whether it is their first year out of law school or thirty years in the practice, they will always encounter a legal issue or practice area that is new and unfamiliar. They will also make mistakes and have no one to blame but themselves - that is why there is malpractice insurance. Learn that you too will make a mistake and will be criticized and will ultimately be a better lawyer for it.

Continue reading here.


July 21, 2011 | Permalink | Comments (0)

Wednesday, July 20, 2011

Bibliography of recent scholarship on the legal profession - Part 3

The third installment. From Bobby Click, Recent Law Review Articles Concerning the Legal Profession, 35 J. Legal Prof. 173 (2010). Part 1 of this biblio can be found here and Part 2, here.

3. Law Firms and the Business of Law

John M. Burman, Ethically Speaking: Should Perspective Clients Know if Law Firms Do Not Have Malpractice Insurance?, WYO. LAW. June 2010, 40.

Cynthia Thomas Calvert, Linda Bray Chanow & Linda Marks, Reduced Hours, Full Success: Part-Time Partners in U.S. Law Firms, 21 HASTINGS WOMEN'S L.J. 223 (2010). This article discusses the part-time partners who are becoming more common in law firms across the country.

Susan Saab Fortney, Leaks, Lies, and the Moonlight: Fiduciary Duties of Associates to Their Law Firms, 41 ST. MARY'S L.J. 595 (2010). In this  [*177]  article, the author discusses the fiduciary duties associates owe to their law firms and whether or not these associates recognize and fulfill those duties

Larry E. Ribstein, Death of Big Law, 2010 WIS. L. REV. 749 (2010). This article discusses the forces that have driven "Big Law" to downsize in recent years.

Paul R. Tremblay, Shadow Lawyering: Nonlawyer Practice Within law Firms, 85 IND. L.J. 653 (2010). This article explores the substantive law and legal opinions that address the regulation of nonlawyer practices within law firms.


July 20, 2011 | Permalink | Comments (0)

Copyright and “Snippets” – Judge Urges Settlement in Google Case

USA Today reported that

"A judge warned lawyers for authors and publishers and Google Tuesday that he will decide whether snippets of books can be sold online without the permission of copyright holders if the sides do not settle their 6-year-old case soon with an agreement to create a massive online library."

Read the full story here.

Stay tuned!



July 20, 2011 | Permalink | Comments (0)

Practical skills don't matter much for the few seeking jobs with BigLaw; for everyone else, they matter a lot

From the blog Belly of the Beast under the title "Practical Skills":

[W]hen asked whether current law school innovations will help students land jobs, Timothy Lloyd, chair of Hogan Lovells recruiting committee, told the [Wall Street] Journal:

“It could enhance the reputation of the law school…as places that will produce lawyers who have practical skills. As to the particular student when I’m interviewing them? It doesn’t make much of a difference.”

Bingo. As a big law interviewer myself, I looked for intelligence, personality, and potential. Specific courses didn’t matter. Assessing candidates was and is subjective but, to adapt Justice Stewart’s pornography test, I usually knew a good one when I saw one.

Schools should expand clinical programs, but not because such student credentials matter to large firm recruiters. They don’t. However, those who don’t get big law jobs really need practical lawyering skills. Do it for them — the vast majority of today’s 50,000 annual graduates.

Schools should modernize curriculum, but not to become business school knockoffs for big law. That’s a mistake.

You can read the rest here.


July 20, 2011 | Permalink | Comments (1)

Writing Tip of the Week

Creating Emphasis II

Sentence structure can affect emphasis. An idea in an independent clause usually receives more stress than an idea in a dependant clause. Compare the following examples.


Although Max had dreamed of becoming a doctor, he held menial jobs most of his life.

Max had dreamed of becoming a doctor, but he held menial jobs most of his life.

The first sentence emphasizes that Max had held menial jobs; the second sentence that Max had dreamed of becoming a doctor.

The order of the clauses can also affect emphasis. Compare the above examples with those that follow.


Max held menial jobs for most of his life, although he had dreamed of becoming a doctor.

Although Max held menial jobs for most of his life, he had dreamed of becoming a doctor.

For most of his life, Max held menial jobs, although he had dreamed of becoming a doctor.

Although Max had dreamed of becoming a doctor, for most of his life, he held menial jobs.

The above sentences say the same thing and, for the most part, they sound equally correct. The version one chooses depends on the emphasis desired (and how the sentence fits with other sentences in the paragraph). A writer should never settle for the first version but should consider all correct means of expression.


July 20, 2011 | Permalink | Comments (0)

Be Careful Whom You Blame

It's often too easy to jump to conclusions:

(From the Washington Post online)


July 20, 2011 | Permalink | Comments (0)

Job interview tips and mistakes to avoid for law students

Some of the advice from this BigLaw hiring partner at Kramer Levin, courtesy of the Careerist blog, is obvious but still worth repeating for those heading into the fall recruiting season; don't be late for the interview, be prepared for questions about anything you've listed on your resume, etc. Other advice, such as understanding that the interviewer is trying to assess how you'll be with clients, is less obvious but perhaps even more important than flubbing an occasional question given how focused firms are today on a candidate's ability to contribute to the bottom-line ASAP.

[The Careerist]: I know Kramer Levin is big on grades, clerkships, and all that good stuff. But is there a certain Kramer profile?
[Hiring Partner]: The answer is no. We're not looking for someone who looks like "X." We're looking at the total package.

Ah, that elusive total package. Besides grades, what else impresses you?
Interest that goes beyond oneself--like doing tutoring, something that involves the community. Something that shows that the person is thoughtful and well-rounded.

And what do you find off-putting during interviews?
People who put something on their resume that they can't talk about. If you're going to join a organization or if you're in a clinic for battered women, you should be able to talk about it.

Do your interviewers get a script--questions that they are required to ask?

No. There are no required standard questions. [But] we do ask interviewers to consider, "Would you introduce this person to a client?"

That's fascinating. So you have to visualize whether the candidate is presentable to clients.

Yes, it helps the interviewer put things in context.

I guess that would eliminate some academic superstars.
They can be first in their class, but we won't make them an offer unless they're right for us. We look for candidates that are personable and engaging. We're not a shop that puts a huge number of lawyers on a transaction. You have to interact with people right away.

Can you share some faux pas that eliminated candidates from the running?
People ask inappropriate questions--things having to do with people's marital status. Or they make a personal comment about someone they just met--like commenting about their appearance. Another faux pas is to be late to an interview without an explanation.

Ever had a candidate who made a great first impression, then absolutely bombed on the callback?
Sometimes they're fine on campus, but when they come to the firm, they get nervous. They see the big lobby, and they find it unnerving. The whole process is a bit unfair . . . you could just have a bad day.

Hat tip to the ABA Journal blog.


July 20, 2011 | Permalink | Comments (2)

Tuesday, July 19, 2011

Bibliography of recent scholarship on the legal profession - Part 2

From Bobby Click, Recent Law Review Articles Concerning the Legal Profession, 35 J. Legal Prof. 173 (2010). Part 1 of this biblio can be found here.

2. Technology:

Juan A. Albino, Do Defendants Have a Privacy Interest in Their Cell Phone's Text Messages and E-mails?, 44 REV. JURIDICA U. INTER. P.R. 383 (2010).

Steven C. Bennett, Are E-Discovery Costs Recoverable by a Prevailing Party?, 20 ALB. L.J. SCI. & TECH. 537 (2010). In this article the author discusses the high costs associated with E-discovery and the possibility of curtailing such high costs by threatening to award discovery costs to prevailing parties.

Beth C. Boggs, Misty L. Edwards, Does What Happen on Facebook Stay on Facebook? Discovery, Admissibility, Ethics, and Social Media, 98 Ill. B.J. 366 (2010). This article explores emerging case law that addresses the discovery, admissibility, and legal ethics involved in information gathered from social media sites.

Daniel B. Garrie & Daniel K. Gelb, E-Discovery in Criminal Cases: A Need for Specific Rules, 43 SUFFOLK U. L. REV. 393 (201f0). In this article, the author explores issues involving e-discovery and electronically stored information. Specifically, the author focuses on the development of the rules governing e-discovery an electronically stored information in civil cases and the current development of such rules involved in criminal cases.

Sarah A. Geers, Common Sense and the Fact Finder Without Skill in the Art: The Role of Objective Evidence in Achieving Proper Technology Specificity, 40 Seton Hall L. Rev. 225 (2010).

Michael P. Griffin, John W. Clark III, Juror Expectations Concerning Technology Implementation in the Courtroom, 43 NO. 2 CRIM. LAW BULLETIN ART 2 (2010).

Evan E. North, Facebook Isn't Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010). This article focuses on the discoverability of social-networking information by private litigants in civil cases.

Andrew M. Perlman, The Legal Ethics of Metadata Mining, 43 AKRON L. REV. 785 (2010). This article addresses the ethical problems  [*178]  presented by meta-data mining, as discussed in bar opinions. The article also presents the argument that meta-data mining should be dealt with under the rules that deal with inadvertent disclosures.

Allison D. Rhodes & Robert W. Hillman, Client Files and Digital Law Practices: Rethinking Old Concepts in an Era of Lawyer Mobility, 43 SUFFOLK U. L. REV. 897 (2010). This article discusses the effects of digitizing client files and firm information in light of lawyer mobility. The article also evaluates the existing framework of law and ethics that were developed in a time dominated by hard copies.



July 19, 2011 | Permalink | Comments (0)