July 19, 2011
Dean Matasar's Reply
Last Sunday, I linked to a New York Times article critical of law school economics, which was focused on New York Law School. Dean Matasar has replied here. I think Dean Matasar makes some very good points. Elsewhere, I have read that some are questioning why law schools are being attacked while other programs, like medical schools and graduate programs, are not. It is very true that the economy is affecting jobs in all fields. I do, however, think that we need to reconsider whether we are doing the best for our students, particularly in the area of transparency.
P.S. I would again like to emphasize my strong support for the changes NYLS is making in its legal skills program. It has provided a model that all schools should follow.
(hat tip: Sue Liemer)
Written v. Oral Communication
For the recent Applied Storytelling Conference, I prepared a presentation based on the draft of an article I am writing. To save time, I created my talk by cutting and pasting parts of my manuscript. I deviated from my normal practice of writing down a number of phrases and half sentences that would serve as guideposts.
Wanting to make a good presentation, I practiced my talk orally a number of times. However, every time I practiced, I sounded as if I were reading my speech. I was not happy. Fortunately, somehow when I actually gave my talk, I sounded conversational.
The lesson is obvious, and we all know it: Writing and speaking are clean different things. Even good writing does not translate into good speechifying. I also realized why so many academic talks are so boring, even when the speaker is not reading a manuscript. The speaker is often doing what I did. Lesson learned.
How does your law school grading curve compare?
Here's a Wikipedia entry that compiles law school grade curves from many institutions (while most of the data appears to be supported by legitimate citations, I can't vouch for that):
Click here (and scroll down) to see the list of schools that don't report rank or GPA and the ones that are categorized as using an "irregular" grading system like Yale's pass/no pass method.
July 18, 2011
Bibliography of recent scholarship on the legal profession - Part 1
This bibliography is taken from an article called "Recent Law Review Articles Concerning the Legal Profession" by a law student named Bobby Click and can be found at 35 J. Legal Prof. 173 (2010).
1. The Legal Profession:
John M. Burman, Ethics for Lawyers Who Represent Governmental Entities as Part of Their Private Practices, 10 WYO. L. REV. 357 (2010). This article focuses on the ethical rules that apply to attorneys who represent government entities in their private practice as opposed to rules that apply to attorneys who are employed by the government.
Mathilde Cohen, Sincerity and Reason-Giving: When May Legal Decision Makers Lie?, 59 DEPAUL L. REV. 1091 (2010).
Kim Diana Connolly, Navigating Tricky Ethical Shoals in Environmental Law: Parameters of Counseling and Managing Clients, 10 WYO. L. REV. 443 (2010). This article focuses on the Model Rules of Professional Conduct, specifically Rules 2.1 and 1.6, and how those rules apply to attorneys who practice environmental law.
Nathan M. Crystal, Ethical Responsibility and Legal Liability of Lawyers for Failure to Institute or Monitor Litigation Holds, 43 AKRON L. REV. 715 (2010). In this article the author discusses the ethical and legal basis for disciplining lawyers who fail to initiate or implement litigation holds in relation to electronically stored information.
Gregory M. Duhl, The Ethics of Contract Drafting, 14 LEWIS & CLARK L. REV. 989 (2010). This article explores the ethical obligations and duties lawyers may have to third parties when drafting contracts.
Shelby D. Green & Temisan Agbeyegbe, The Improvident Real Estate Deal: The Lawyer's Ethical Duty to Warn, 39 REAL EST. L. J. 147 (2010).
Steven J. Johansen, Was Colonel Sanders a Terrorist? An Essay on the Ethical Limits of Applied Legal Storytelling, 7 J. ASS'N LEGAL WRITING DIRECTORS 63 (2010). This article explores the characteristics of storytelling and concerns that applied legal storytelling is unfairly manipulative. [*174]
Justice Marilyn S. Kite, The Good Guy Actually Does Win, 10 WYO. L. REV. 397 (2010).
Charles M. Kidd, 2009 Survey of the Law of Professional Responsibility, 43 IND. L. REV. 919 (2010). This article offers an overview of a number of recent Indiana Bar disciplinary actions that deal with the legal profession. These actions include advertising, limited liability entities, and "imputed status" for law firms.
Renee Newman Knake, Prioritizing Professional Responsibility and the Legal Profession: A Preview of the United States Supreme Court's Term 2009-2010 Term, 5 DUKE J. CONST. L. & PUB. POL'Y SIDEBAR 1 (2010). This article discusses the increased attention the United States Supreme Court has been recently giving to cases that involve the ethical obligations and legal duties of attorneys. Specifically, the article offers an overview of such cases the Supreme Court has on its docket for the 2009-2010 term.
Renee Newman Knake, The Supreme Court's Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?, 59 AM. U. L. REV. 1499 (2010). The author provides a comprehensive overview of cases decided by the Supreme Court, which deal with the access to lawyers, legal advice, and the harm done by lawyers.
Katherine R. Kruse, Beyond Cardboard Clients in Legal Ethics, 23 GEO. J. LEGAL ETHICS 103 (2010). This article focuses on the issues created by the use of "cardboard clients" - one dimensional figures who are only concerned with maximizing their legal and financial interests - in legal ethics. The author also discusses possible alternatives that could be used to solve such issues.
Ariana R. Levinson, Legal Ethics in the Employment Law Context: Who is the Client?, 37 N. KY. L. REV. 1 (2010).
Tracy Walters McCormack & Christopher John Bodnar, Honesty is the Best Policy: It's Time to Disclose Lack of Jury Trial Experience, 23 GEO. J. LEGAL ETHICS 155 (2010). This article discusses the potential injury to clients who are unaware of litigators' diminishing jury trial experience and skills. The authors also discuss the possible obligations an attorney should have to disclose their lack of experience.
Mika C. Morse, Honor or Betrayal? The Ethics of Government Lawyer-Whistleblowers, 23 GEO. J. LEGAL ETHICS 421 (2010). The author examines the limited protection offered to government whistleblower lawyers. He also examines the additional constraints government lawyers face because of their professional and ethical obligations.
Nancy M. Olson, Judicial Elections and Courtroom Payola: A Look at the Ethical Rules Governing Lawyers' Campaign Contributions and the Common Practice of "Anything Goes", 8 CARDOZO PUB. L. POL'Y & ETHICS J. 341 (2010). This article discusses judicial campaign contribu [*175] tions made by lawyers and what ethical rules may be relevant to such contributions.
Julie A. Oseid & Stephen D. Easton, The Trump Card: A Lawyer's Personal Conscience or Professional Duty, 10 WYO. L. REV. 415 (2010). This article consists of an exchange between two professors of law. The exchange focuses on whether an attorney has a professional obligation to act in ways that are contrary to their conscience or if it is ethical for attorneys to influence their clients in order to avoid these types actions.
Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 WASH. U. L. REV. 699 (2010). In this article the author presents arguments in favor of House Bill 151 and Senate Bill 27 - legislature that would create a law clerk program with the United States Congress. William H. Simon, Role Differentiation and Lawyers' Ethics: A Critique of Some Academic Perspectives, 23 GEO. J. LEGAL ETHICS 987 (2010).
A. Benjamin Spencer, The Restrictive Ethos in Civil Procedure, 78 GEO. WASH. L. REV. 353 (2010). This article examines modern civil procedures the author contends are being developed and interpreted in a restrictive manner. The author then argues such restrictions limit the ability of claimants to have their cases decided on merits instead of technicalities.
David H. Tennant & Lauren M. Michals, Mixing Business with Ethics: The Duty to Malpractice by Trial Counsel, 20 NO. 1 PROF. LAW. 3 (2010). This article discusses the conflict of interest appellate attorneys may face in reporting malpractice by trial attorneys when such reporting may adversely affect the amount of business referred to the appellate attorney.
Alice Woolley & W. Bradley Wendel, Legal Ethics and Moral Character, 23 GEO. J. LEGAL ETHICS 1065 (2010).
Fred C. Zacharias, Steroids and Legal Ethics Codes: Are Lawyers Rational Actors?, 85 NOTRE DAME L. REV. 671 (2010). This article focuses on the ethical regulations that address conduct in which lawyers must accommodate client demands against the potentially contrary interests of clients, courts, specified third parties, or society as a whole.
Take my laptop - please.
To paraphrase the old Henny Youngman joke. A Utah appellate court has affirmed a damages award to a college art professor for more than $47,000 against the thief who stole his laptop and then deleted all the files. Here's how damages were calculated:
Birkeland was charged with the theft of Stewart's computer and pleaded no contest. The district court conducted a restitution hearing, after which the parties were ordered to brief their positions on the amount of restitution to be awarded. The State requested restitution of $80 to UVU for the recovery services performed by Mac Docs and $47,500 to Stewart. The proposed restitution to Stewart represented the 350 hours he had spent renaming and reorganizing the recovered files, as well as 600 hours spent recreating the unrecoverable PowerPoint presentations, all calculated at an hourly rate of $50 per hour. The State argued that the value of Stewart's labor was properly included in the restitution amount and that Stewart's losses were attributable to Birkeland's criminal activity, i.e., the theft of the computer.
What are the chances the professor will ever see a dime?
You can read the court's full opinion here.
Hat tip to the Chronicle of Higher Ed.
Close to half of all college grades are "A's"
This undoubtedly affects matriculating law students' expectations about their GPA's which may help explain why polls show that most incoming law students believe they'll be at the top of their class (here and here). From the Chronicle of Higher Ed:
Although grade inflation affects all types of colleges, its influence varies by the type of institution, the academic field, and even by region, according to a recent article on college grading. The piece comes from Stuart Rojstaczer, a frequent critic and scholar of grade inflation, and his colleague Christopher Healy, and it includes the most recent data on the pervasiveness of grade inflation—such as the fact that A’s represent 43 percent of letter grades, on average, at a wide range of colleges. According to their analysis, “Private colleges and universities give, on average, significantly more A’s and B’s combined than public institutions with equal student selectivity. Southern schools grade more harshly than those in other regions, and science and engineering-focused schools grade more stringently than those emphasizing the liberal arts.”
And you can also check out a website maintained by Mr. Rojstaczer, GradeInflation.com, which tracks trends in college grading since 1920. But see Reports of Grade Inflation May Be Inflated CHE (2002).
Have Lawyers Write Poetry
At Attorney at Work, Jordan Furlong writes:
The problem is not with lawyers’ writing, I think; the problem lies with lawyers’ tendency to overwrite. Most lawyers are perfectionists who believe that comprehensiveness is next to godliness; they never leave anything out because they fear that a single omission will be the one upon which the matter turns.
Ask a lawyer for a tune and she’ll give you a symphony. Ask him for a snack and he’ll bring you a three-course meal. If you are in the mildest doubt about this, turn now and pick up the nearest contract you can find, and read every word out loud until you find it annoying.
Back already? Okay.
His solution: Have lawyers write poetry each week to train them to write as concisely and effectively as they can. He offers some sample poems. As a composer of haiku, I think he may be on to something.
July 17, 2011
The Economics of Law School
The New York Times has an article on the economics of law school that focuses on New York Law School. To be fair to NYLS, many other law schools are doing the same thing. Also, NYLS should be applauded for its new skills curriculum.
Trends in lawyer use of iPhones and tablets
Below is a summary of the ABA's latest lawyer technology survery (you can download the six volume report here) courtesy of iPhone J.D. Overall, the ABA survey found that approximately 300,000 U.S. lawyers currently use iPhones and 100,000 use iPads:
The ABA surveyed lawyers from January to May of 2011. An outside research firm invited "9,800 nth selected names of ABA lawyer members in private practice" to complete the survey, 838 did so, and the ABA says that this means that "[r]esults for total respondents are projectable within a range of +/- 3.5% (with 95% confidence) for most of the tables in this report." The report itself contains more details on the methodology and the structure of the survey, but suffice it to say that there was a dedicated effort to obtain results with statistical significance.
Last year, 79% of lawyers reported using a smartphone for law-related tasks while away from their primary workplace. This year, that number increased to almost 88%. In large firms with 100 or more lawyers, the number was up to 98%. Solo respondents were the least likely to use a smartphone (78% in 2011, compared with 65% in 2010). Most solo attorneys I know make even better use of technology than attorneys at large firms so these numbers surprised me a little, but perhaps that says more about the attorneys with whom I socialize.
Younger attorneys are more likely to use smartphones than attorneys over 60, but even in the over 60 crowd, 77% reported using smartphones.
For those who use a smartphone, 67% use a device that they own, 35% use a firm smartphone permanently assigned to them, and less than 1% report using a temporarily assigned firm smartphone from a shared pool. Respondents typically replace their smartphones every two years.
Tips for succeeding as a lateral hire
Vivia Chen, the blogger behind the Careerist Column at lawjobs.com spoke to some experts including Vinson & Elkins hiring partner Tom Leatherbury, career coach Elizabeth "Betsy" Munnell, and legal recruiter Dan Binstock. Here's what they said:
VE's Leatherbury offers these suggestions to the lateral:
1. Work for as many different partners as you can.
2. Hit your first few assignments out of the park. Anticipate and ask what more you can do on the matter.
3. Stay later than the senior lawyers.
4. Never speak ill of your former firm. By the same token, don't say: "At my former firm, we did it this way."
5. Be a good firm citizen: Volunteer to do recruiting or join an associates committee.
Career coach Betsy Munnell advises:
1. Make friends with everyone--lawyers, staff, and support people. "Sort out who you can trust, who can teach you, and who you must not cross."
2. Target who might be a mentor. Do not wait to be assigned or for a partner to take you under her wing.
3. Be confident, upbeat, and responsive--but never cocky. Avoid showing anxiety or lack of confidence to anyone. Don't share secrets too early.
4. Be solicitous and cautious about your work. You don't want a reputation as someone who blows off assignments, and you certainly don't want to be known as the one who "screwed up the first deal I gave him."
5. Know the rules and politics behind work assignments. Clarify whether you will be assigned work or if you have to seek it out--then find out how it really works. Find out which partners will never forgive an associate for turning down an assignment--and the ones who expect associates to "fight" for the privilege of working for them.
You can read more advice here.
Cooley Law School Sues Alleged Online Defamers
According to the Chronicle of Higher Education, the Thomas Cooley Law School in Michigan has gone to court to sue those who have allegedly defamed the school online:
One of the suits, filed in Ingham County Circuit Court in Michigan, singled out the New York law firm of Kurzon Strauss and two of its lawyers, David Anziska and Jesse Strauss. The school's complaint says the lawyers falsely stated that Cooley was defrauding students by misrepresenting its job-placement rates, average starting salaries, and student-loan default rates. Cooley officials say those numbers, including the school's current job-placement rate (nine months after graduation) of 76 percent, have been reported "consistently and truthfully."