January 22, 2011
More on the war of words over social media and law practice
The discussion about the value of social media to the practice of law has been polarizing. Some have argued it's overhyped and oversold while others warn that lawyers who don't embrace social media as a means to network and attract and communicate with clients risk becoming dinosaurs. Falling into the latter camp is this editorial from Law.com:
The people making decisions at your firm need to take care not to dismiss social media based on a reliance on the old ways, or they may be setting themselves up for failure. It was this kind of thinking that almost put the Eastman Kodak Co. out of business when digital cameras came out. This same backwards thinking has led to the failure of countless businesses, as documented in Clayton Christensen's book, The Innovator's Dilemma. Time and again, businesses fail when they refuse to recognize the importance of disruptive innovation.
. . . .
The time is long past for asking, "Should we use social media?" The question today needs to be, "How can we use social media effectively?"
So how can your firm use social media? Think small. Very small. Start thinking about how your attorneys can better leverage social media as individuals. The average Facebook user has 130 friends. Multiply this by 100 lawyers and you can reach 13,000 people. For law firms to use social media effectively, they need to allow their attorneys to be social online.
. . . .
Let your attorneys participate in Web 2.0. There are two primary behaviors they can begin with online. First, they can listen to what the biggest concerns of their contacts and clients are. Second, they can engage in conversations with these people by commenting on their blogs, responding to articles they post and forwarding the good content they see to others. One of my clients has a daily habit of reading all the best intellectual property news of the day. He prints out the most important articles and adds them to a paper file. For him, it has been very easy to add one step and share those important articles via LinkedIn and Twitter. The most successful users of social media find a way to fit these new tools into their existing routine.
You can read about what returns on investment, according to Law.com, attorneys can expect for their social media efforts here.
Do Better Teaching Methods Make Too Many Demands on the Teacher?
Here is an article from the Teachers College Record, the online publication of the Columbia University Teachers College. It argues that proven tools for improved teaching are available, but often unused. Why? Here is Professor Ernst Rothkop’s explanation:
I’ve come to suspect, however, that a much deeper systemic issue is at play here. Consider the micro-economic system within which teachers operate. Practically all the tactical maneuvers which cognitive research has suggested involve more work on the part of the teacher. The result that is the extra yield in student achievement is slow to make itself manifest, if it makes itself manifest at all. This is not like a new shape of plow or an electric wrench that immediately displays its labor-saving, production-boosting attributes. Nor is it like the new fertilizer that two months later shows unmistakable rises in crop yields. Nor are any of them obvious labor-savers. The results of these methods make more demands on teachers but do not reflect in their earnings or in the resources made available to them. Lawyers get paid more if they bill more hours. Craftsmen charge more to invest their product with extra quality. Teacher salaries are not result-oriented. The micro-economics of effort and value of return are broadly ignored at the classroom level. School boards should consider that, in our society, altruism is only an adequate incentive system after you make your first fifty million.
To what extent do these concerns apply to law school teaching? For example, in my Land Use class, I give five quizzes, each worth 20 points instead of a final. I have to grade them. In my Advanced Legal Writing class, I give weekly homework. Good pedagogy, but more work for me. Part of the answer is to find and use good techniques that are not too labor intensive, but this strategy has its limits. Professor Rothkop suggests giving the teacher greater resources and imposing fewer obligations. Particularly in the current economic climate, these suggestions are of limited practicality.
January 21, 2011
A familiar refrain (from the 1740s in Scotland): legal education needs reforming
In his recently published biography of Adam Smith, Nicholas Phillipson describes a period of tumult in Edinburgh following the Jacobite rebellion of 1745. Phillipson notes that the rebellion and its aftermath prompted soul-searching by the elites of Edinburgh, including lawyers (pp. 84-85). The
ruthless campaign to exterminate Jacobitism with the sword had revived long-standing fears that the Crown would attempt to pacify the Highlands by conquest. The lawyers . . . responded to this threat by arguing that the causes of the rebellion had more to do with the structure of clan society than with the ambitions and treachery of a few Highland chiefs, and that the problem of pacifying the Highlands could be better addressed by encouraging civility, commerce and economic improvement than by the use of military force. . . . It was no coincidence that some senior lawyers had begun to ask whether the present state of legal education was appropriate to present needs. Some thought that advocates, like moderate ministers, should be educated as gentlemen. As the new Lord President, Robert Dundas of Arniston, told the Faculty in 1748, 'Over and above being careful to learn thoroughly the principles of the Roman Law and the Laws of Nature and Nations, they should take pains to acquire the other Sciences and accomplishments becoming the Character of Gentlemen' and, above all, 'that rational & manly eloquence' should be the mark of their profession. . . .
Obviously, whatever the merits of calls for other changes in legal education more than 260 years ago, reform then did not include expanding the profession beyond "gentlemen."
Self-indulgent writing invites judicial rebuke
Two recent court decisions highlight the dangers of self-indulgent and otherwise poor writing by lawyers. On January 11, the California Court of Appeal issued an opinion caustically criticizing the parties’ briefs. The money quote (p. 17, with emphases in original):
The opening brief of the Jammu defendants is 72 pages long. Following an abbreviated “Statement of the Case,” the brief spends almost 21 pages on a “summary of facts,” reciting the claimed facts from the Jammu defendants’ perspective only, their “summary of [plaintiff’s] evidence and declarations” consisting of a grand total of 20 lines. Such advocacy is not to be condoned. (See generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) § 9:27, p. 9-8 [“brief should accurately and fairly state the critical facts . . . :”].) Beyond that, the brief is not well organized, and lacks any meaningful or logical argument headings, jumping from arguments referring to “issues of public interest” (Arguments IV and V) to “free exercise of religion” (Argument VI) to “limited public figure” (Argument VII) to “public figure status.” (Arguments VIII, IX, and X.) The brief is, in a word, unhelpful.
The 66-page (!) reply brief is no better, with five arguments (some with multiple subparts) set forth with headings ranging from five lines to 13 lines. Again, not commendable. (See Eisenberg, supra, 9:107, p. 9-31, advising to “keep headings short and concise”.) These arguments jump too, from “free exercise” and “free exercise clause” (Arguments II and III) to “public figure status” (Argument IV) to “issues of public interest” (Argument V).
But beyond these deficiencies, the briefs utterly fail to come to grips with the issue here.
A day later in Florida, the Court of Appeal for the Fifth District, in Marion v. Orlando Pain & Medical Rehabilitation, ordered one of the attorneys to appear in court “to show cause why monetary or other sanctions should not be imposed” for filing and pursuing a motion the court characterized as “naked re-argument at best and an emotional tirade at worst.” A motion that begins this way foreshadows bad things to come for its author:
1. Oh.The opinion recites more gems. Unsurprisingly, the court neither retracted nor reconsidered.
2. Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.
Pro Wrestler Allegedly Poses as Lawyer
Strange World Department: Leonard Inzitari wrestles professionally under the name Mario Mancini. He also was working as a paralegal while waiting to take the Connecticut bar exam. According to allegations, he has represented himself as a licensed lawyer. The alleged conduct took an unfortunate turn when he appeared to depose the plaintiff is an auto accident case, identifying himself as Mario Mancini. The opposing attorney later investigated and discovered that Inzitari/Mancini was not an attorney. The state grievance committee was scheduled to hold a hearing on the matter on January 19. Here is the story from the Connecticut Law Tribune.
I wonder how often unlicensed individuals pose as licensed professionals. It may be easy for staffers who work for professionals and see only the surface part of the job to think that they can perform as well as their high-priced employers. Many years ago, when I was a Legal Services attorney, a paralegal was taking money from impecunious clients. She was found out and fired. Afterward, on at least one occasion, she appeared in court representing a “client” and claiming to be a lawyer.
January 20, 2011
Some law firms evaluate associate writing in "excruciating detail"
From the Careerist Column at Lawjobs.com, (the author is a former partner at Winston & Strawn):
I recently attended the annual 2010 Professional Development Institute in D.C. where major law firms and law schools shared information about professional development initiatives. As I was sitting through a slide show illustrating one firm’s competency model--consisting of an excruciatingly detailed list of microtasks and performance-
bits--my enthusiasm turned into incredulity.
Does a partner evaluating a junior associate’s basic writing skills need to be told that the skills set includes “correct grammar, syntax, and punctuation?” A more advanced-level writing skills checklist includes, “providing polished early outlines and first drafts to senior attorneys to gain valuable feedback for final work.”
The author obviously doesn't favor such micro-scrutiny of associate work and instead recommends ways she thinks lead to more productive associate development. But it's an interesting insight into what some employers expect from their associates when it comes to writing skills.
You can read more here.
Students to e-books: Nyet!
That's the finding of this informal student survey by an undergraduate professor who was interested in testing the validity of a formal survey of consumer book buying patterns. These results confirm earlier reports that students don't like e-books as much as p-books. In this most recent study, p-books crushed e-books:
Students in my course conducted a wholly unscientific survey of fellow students. A minority of the 176 students who were surveyed had bought and/or read an e-book, either for courses or for fun. Of that group, print was preferred to e-books ten to one. Of the students who had no experience with e-books, five said they'd choose an electronic format, all things being equal; 29 said they would buy an e-book if it was up to 1/3 cheaper - and 108 said they preferred print. I'd call that a landslide.
My prediction is that regardless of consumer preference, we'll see the publishers foisting more e-books on consumers because the profit margins are likely greater. Perhaps just as music companies phased out vinyl in order to force consumers to switch to CD's, publishers may unilaterally pull the plug on most p-books some day.
We teach them nothing, Lebowski!
So says this U. of Chicago study that concludes college professors don't have much effect on student learning. I've read similar studies in the past that have concluded student thinking doesn't fundamentally change as the result of college - even among the A students. Here's a summary of this new study from Inside Higher Ed:
If the purpose of a college education is for students to learn, academe is failing, according to Academically Adrift: Limited Learning on College Campuses, a book being released today by University of Chicago Press.
The book cites data from student surveys and transcript analysis to show that many college students have minimal classwork expectations -- and then it tracks the academic gains (or stagnation) of 2,300 students of traditional college age enrolled at a range of four-year colleges and universities. The students took the Collegiate Learning Assessment (which is designed to measure gains in critical thinking, analytic reasoning and other "higher level" skills taught at college) at various points before and during their college educations, and the results are not encouraging:
- 45 percent of students "did not demonstrate any significant improvement in learning" during the first two years of college.
- 36 percent of students "did not demonstrate any significant improvement in learning" over four years of college.
- Those students who do show improvements tend to show only modest improvements. Students improved on average only 0.18 standard deviations over the first two years of college and 0.47 over four years. What this means is that a student who entered college in the 50th percentile of students in his or her cohort would move up to the 68th percentile four years later -- but that's the 68th percentile of a new group of freshmen who haven't experienced any college learning.
"How much are students actually learning in contemporary higher education? The answer for many undergraduates, we have concluded, is not much," write the authors, Richard Arum, professor of sociology and education at New York University, and Josipa Roksa, assistant professor of sociology at the University of Virginia. For many undergraduates, they write, "drifting through college without a clear sense of purpose is readily apparent."
Lawyer's Oath in Plain English
In the Michigan Bar Journal, Plain English guru Professor Joe Kimble (Cooley Law School) has urged the Michigan Bar to champion a revised version of the state’s oath for lawyers being admitted to the bar. When George Hathaway proposed the revised version over a decade ago, he noted the failings of the current oath:
Some might regard the current oath as
quaint—and right for a ceremonial occasion. But I suspect that
many or most new lawyers find it unclear in places and rather
odd—the verbal equivalent of wearing spats or a coat with tails.
Why start lawyers off like this? The plain-English version is solemn,
dignified, and equally right for a ceremonial occasion.
To see the competing versions, please click here. With these versions, you can provide your students with a nice illustration of how to revise into plain English
"Ask Not What You Can Do For Your Country": 50 years ago
Today marks the 50th anniversary of President John F. Kennedy’s inaugural address. Few inaugural addresses live in memory. Aside from President Kennedy’s words, the only memorable addresses I can recall are those of Abraham Lincoln.
In President Kennedy’s speech, the words that remain an inspiration are “Ask not what your country can do for you. Ask what you can do for your country.” We have that legendary wordsmith Ted Sorenson to thank for this contribution to our American rhetoric.
January 19, 2011
LSAC reporting that law school applications are down 12%
Following up on our report early today that the number of people taking the LSAT has dropped, the Law School Admissions Council (log-in required) is also reporting that law school applications for Fall, 2011 are down 12.2% and applicants are down 12.5%. Interestingly, applicants to Canadian law schools are up 3.9% and applications are up 5.1% from 2010.
Emphasis on faculty scholarly output makes it hard for law schools to focus on skills training
That's the upshot of this short article from the National Jurist Magazine.
Amid a treacherous job market, big law firms are putting pressure on law schools to shift their focus from intensive research to more hands-on training, noting that their clients are no longer willing to pay for firms to train new associates.
For decades, law schools have focused heavily on research in the hopes that it would make them appear more elite in the rankings. Some deans, however, say its time to get back to law and start educating lawyers differently.
“The primary mission of my law school is to educate lawyers, and that does not make me a trade school,” Ellen Y. Suni, dean of The University of Missouri at Kansas City School of Law, said. “It's time we all stopped being wannabes.”
The shift in coursework is a lot easier said than done, however. One issue is the tenure system. In the panel discussion, Gary R. Roberts, dean of Indian University School of Law, noted that most faculty are rewarded for their scholarship, and need that prestige to be granted tenure. Fewer tenured professors, means less of a chance of being accredited by the American Bar Association.
“We all know we need more skills training, but we need to find ways to change the culture so we can get there,” Roberts said.
You can read the rest here.
R. Sargent Shriver: In Memoriam
R. Sargent Shriver has passed away at the age of 95. Recipient of a purple heart, founder of the Peace Corps, Director of the Office of Economic Opportunity, ambassador to France, Vice-Presidential candidate, and a person who thought deeply about public service and spirituality, Shriver serves as a model to all who aspire to lead a full and exemplary life. Here is his obituary in the New York Times.
How Much Do Law Partners Make?
According to an extensive survey, the answer is: a lot of $$$. Major, Lindsey & Africa, attorney search consultants, have released the results of their Partner Compensation Survey. The average annual compensation of all respondents was $640,000. For non-equity partners, the average was $336,000. Corporation law partners made the most: $759,000.
The results are weighted toward big firms. 55% of the partners who responded to the survey were in firms of 501 lawyers or more. 78% were in firms of 201 lawyers or more.
I keep on reading that happiness correlates with increased income only up to $75K. Income greater than $75K does not increase happiness. Draw your own conclusions.
Here is a link to the media release that will permit you to access this extensive survey.
January 18, 2011
December LSAT test-takers drop 16.5% from last year; first time test-takers down 22%
Here are the figures for the December LSAT as reported by the Law School Admission Council (log-in required):
There were 42,096 test takers for the December 2010 administration. This figure is down 16.5% (8,348 test takers) from the December 2009 LSAT administration.
Year-to-date (Jun-Dec), testing volume is 129,414. While this figure is down 10.0% compared to last year, it is the second largest YTD testing volume (second only to last year).
Like June and October, there was an increase in the percentage of repeat test takers for this administration compared to the same administration last year. There has been a steady increase in December repeaters over the past several years. For December 2010, 47% had previously taken the test. This is up from 44% of test takers in December 2009.
The volume of first-time test takers in December 2010 was down approximately 22% from December 2009.
Oregon becomes third state to mandate practitioner-mentors for recent law grads
Recent law school graduates who plan to practice in Oregon have been put on notice that their formal legal education won't end once they pass the bar.
They will be the first to participate in a mandatory yearlong mentorship program designed to help them develop the practical and professional skills they need to be successful lawyers. The requirement was announced in a letter that Oregon Chief Justice Paul De Muniz sent to all February bar exam takers. The program requires new attorneys to pair up with experienced practitioners who will offer monthly guidance on everything from ethics and professionalism to the inner workings of a transactional or litigation practice.
The New Lawyer Mentoring Program — being developed by the Oregon State Bar at the request of the Oregon Supreme Court — will be the third such program in the country when it begins in May. "Part of this program is intended to address a problem that didn't exit in the past," said Steve Piucci, president of the Oregon bar.
"You would graduate law school, get a job at a firm and people there would serve as mentors," Piucci said. "Now, there are so many people who can't get firm jobs and are hanging out their shingle. We're trying to connect them with the professional side of the job and teach them the culture — teach them how to be civil, how to network and introduce them around at the courthouse."
Many state and local bars, law firms and other legal organizations offer smaller-scale or voluntary mentoring, but only Utah and Georgia have bar-mandated mentoring programs now. The idea appears to be catching on, however. The Wyoming State Bar plans to add a mentorship requirement in July and the State Bar of Nevada hopes to roll out a yearlong program in 2012. Other states are considering similar efforts.
A significant improvement to Google Scholar that lets you research by jurisdiction
This is big. Google Scholar has added a feature that makes it more competitive with the Wexis - you can now search cases by state and federal jurisdiction. From the WisBlawg:
As you may already know, Google Scholar offers an excellent collection of free federal and state case law for the following years of coverage.
Sup. Ct. pre 1776?
Fed. Circ. Cts. 1924?
Fed. District Cts. varies
States vary (most mid 1950s?)
Using the advanced search page, you've always been able to limit your search to a particular state, but now users may limit to specific courts and jurisdictions. You can even mix and match your selections.
Source: Robert Ambrogi's LawSites
Hat tip to the Legal blog Watch.
"1-L" Revisited: The Only Symposium I Have Ever Read Cover to Cover
What lawyer can forget the often traumatic first year of law school? In commemoration of the 35th anniversary of Scott Turow’s “1-L,” the UMKC Law Review has published a series of short narratives in which 12 authors—almost all law profs—recount their experiences as students. Stephen Carter contributes an intriguing mini-mystery. Scott Turow has written the introduction. By the way, it was Turow who invented the term “1L,” which is now part of common parlance.
All the stories are so fascinating that I hesitate to pick out particular ones as my favorites. Given the sociology of law professordom, it is unsurprising that most of the contributors went to Harvard and many of them were different than the average law student of their time. You can find the symposium, “Law Stories: One-L Revisited” at 78 UMKC Law Review 1015 (2010).
I must confess that I did not particularly like law school, though the University of Texas was a great fit for me. Yet, as one of my professors told me, being on the teaching side of the podium is a much different and better experience than being on the student side. He was right.
Send Bookmarks to your Friends the Easy Way
I've always loved URL-shortening site bit.ly for its ability to not only shorten long URLs, but also to track how many people click on those shortened links. Now it offers a great service that is really useful when you need to share a bunch of links.
Let's say your firm's managing partner asks for recommendations for the Partner Dinner. Or your spouse/significant other wants you to give suggestions for a hotel on your upcoming vacation. Rather than send an email with all the links in them, check out bit.ly bundles. They're collections of links you can add, remove and rearrange.
You have to have a bit.ly account to do this, but once you've registered, it's pretty easy to create a bundle. Just enter the URLs of all the sites you want to include, and click Add to Bundle after each. Give your bundle a name, and you're done! You can add comments under each link, if you want to provide a little more background on the links you're providing. To the right of your bundle you'll find "stats" for your bundle, including a short link to it and privacy settings. Here's a bundle I created on Online Storage and Syncing Services - it's just three sites, but you'll get the idea.
This is an easy way to share large numbers of links with other people - you can even subscribe to the list by email or RSS.
January 17, 2011
The real story of associate life in BigLaw
Thanks to the blog Belly of the Beast for distilling reports from various sources (including the Wall Street Journal and Above the Law) into the following snapshot of associate life in BigLaw circa 2010-11:
HOURS UP: Average hours billed by associates at the nation’s top 50 law firms by revenue rose by 7% in 2010.
BONUSES FLAT: At New York-based Milbank, Tweed, Hadley & McCoy LLP, where bonuses were only slightly above last year’s payouts, hours billed by associates were up about 6%. [According to Above the Law, the firm's 2010 bonuses ranged from $7,500 for first-year associates to $35,000 for those in the class of 2003.
That's a big drop from 2006, when first-year associates received "special year-end bonuses" of $30,000.
Student-loan repayment requirements have not experienced a similar decline.
You can read the rest, with plenty of links to original source material, here.