July 30, 2011
Reversing Murder Convictions on Appeal: It’s Not Easy
In Massachusetts, the Supreme Judicial Court has extraordinary power in reviewing first degree murder cases, but don’t count on the Court being very lenient. In 16 Suffolk Journal of Trial and Appellate Advocacy 1 (2011), Stephanie Roberts Hartung has published an interesting empirical study, “The Limits of ‘Extraordinary Power: A Survey of First-Degree Murder Appeals Under Massachusetts General Laws Chapter 278, Section 33E”:
The Supreme Judicial Court of Massachusetts is afforded “extraordinary power” in reviewing first-degree murder convictions on appeal. Yet despite the plenary review established under § 33E - including the right to review the entire trial transcript for errors neither objected to at trial, nor raised on appeal - the survey undertaken in this article concludes that surprisingly few cases are reversed on appeal. This article presents the results of a survey of first-degree murder appeals in Massachusetts from 1998-2008. During that time-frame, just 7.25% of these convictions were reversed on appeal. Additionally, this article discusses the substantive issues giving rise to reversal, and the reversal rate for each issue. Criminal practitioners and scholars can benefit from a practical understanding of the aspects of homicide law which are most likely to support the reversal of a first-degree murder conviction.
The most common reason for reversal is an error in the jury instruction. The second most common is an improper evidentiary ruling by the trial judge. Still, these reversals comprise only a small number of cases.
Exercises in Analogical Reasoning
I have often stressed the need for detailed legal reasoning exercises in legal skills and substantive courses. Stephanie Hartung and Shailini George have an excellent article on analogical reasoning, Promoting In-Depth Analysis: A Three-Part Approach to Teaching Analogical Reasoning to Novice Legal Writings on SSRN.
Analogical reasoning is ubiquitous in every day discourse and in legal analysis. Law students are generally expected to incorporate this type of analysis into their writing in the context of essay exams and legal memoranda for their writing courses. Yet students often receive minimal guidance as to how to effectively create legal analogies and frequently struggle with this process. This article suggests a three-part approach to promoting effective use of reasoning by analogy in student writing. First, the article discusses in-class exercises that use non-legal examples to help demystify analogical reasoning and enable students to recognize that they already reason by analogy in their every day conversations. Second, the article suggests introducing students to a four-step construct for developing logical and legally relevant analogies in order to make the process of analogical reasoning more tangible. Finally, the article discusses methods of providing detailed and constructive feedback to students that will allow them to improve their use of analogical reasoning in their essay exam answers, legal memoranda, and in their employment.
(esf) (hat tip: Terri Leclercq)
Thinking about going solo? Then you need to get real about the start-up costs involved
[M]ost young lawyers have no idea how long it takes to build up clientele or how much it costs to run a law firm. You might be overworked, but before you decide you are underpaid, get real with yourself by doing some investigation and calculation. You may not be aware of all that is included in the overhead attributable to you.
To help you in running some rough calculations, here is a non-exhaustive list of overhead items to consider:
First, consider the costs allocated directly to you such as your salary, payroll taxes and benefits, and the pro rata portion of such costs attributable to administrative assistants and paralegals assigned to you, plus your continuing legal education, bar dues, membership fees, parking, etc.
Second, consider your percentage of the firmwide personnel costs: reception, accounting, IT, office manager, file clerks and any other staff salaries, plus related benefits and costs such as payroll taxes, health insurance, vacation and holidays, sick leave, parking, overtime and bonuses.
Finally, consider your percentage of the general overhead for the following items: rent, furniture, equipment, software and other technology, property tax, utilities, client development expenses, repairs and maintenance, property and general liability insurance, malpractice insurance, Lexis, Westlaw and other subscriptions, firm membership fees, office supplies, websites and advertising.
A RULE OF THUMB
As you can see, there are substantial costs beyond your salary to be considered in determining how profitable you are. For most solo practitioners, the overhead expenses range from 45 percent to 55 percent of their gross revenues. If you don't want to do the hard work of identifying all of those costs described above, use that as a rule of thumb.
So unless you are bringing in significantly more than twice your salary and bonus, you may not be profitable at all. For an excellent article about calculating your profit and loss equation to the firm, check out "The Profit and Loss Equation for Associates" by my friend Ronda Muir, and her colleague Tanja Diklic.
LEAN AND MEAN
You may dream of being your own boss, running a lean and mean shop with a lot less overhead than your current organization. With the technological advances of the last few years, that is undoubtedly an option. Just don't underestimate the three crucial responsibilities in the success of any law practice: client development, collection of fees and taking out the trash.
Well, you may not really have to take out the trash, but you will have a lot of administrative duties that hinder your ability to rack up billable hours. Almost all businesses wind up writing off some accounts receivable, and for most lawyers, it takes a lot longer to bring in new clients than they expected.
I don't want this article to dash your hopes and your belief in yourself. I want it to encourage you to do some realistic assessment and planning so that you don't end up dashed on the rocks.
Read the rest here.
July 29, 2011
ABA Faces Scrutiny as Job Prospects, Debt Levels for Law School Grads Worsen
That’s the headline on the latest Washington Post article on law school accreditation. Apparently, the ABA’s group for accrediting law schools is not in compliance with 17 standards mandated by the federal government:
A recent Department of Education review of the ABA’s accreditation work found that the agency does not demand schools keep loan default rates below a certain level, as required. The ABA has also failed to set minimum standards for postgraduate employment rates and show that it has a transparent and public accreditation process, a department review panel found in a June hearing. The panel found that the ABA unit fell short on meeting 17 federal standards required of accreditation agencies.
The ABA says that it will have many of those problems fixed by early August and seems to think the others are not particularly significant.
New Beta Web Version of U.S. Code Released
The Office of the Law Revisions of Counsel of the United States House of Representatives has launched a beta website version of the U.S. Code. More information here.
Some key features include:
"• A new search engine for Code data
• An expanding "Table of Contents" style browse of the Code
• A simple search facility for quickly accessing specific Code sections or performing simple word or phrase searches
• An advanced search facility for sophisticated searching of Code content using delimiters such as field or Code hierarchy restrictions, Boolean logic, and case sensitive searches
• An improved display of search results and Code documents
• Cite Checker, a new tool that enables quick checking of specific Code sections for recent amendments
• Easy access to the USCprelim, an advance posting of the next online version of the Code
• New explanatory material about the Code and the functions of the Office"
Hat tip LawLibraryofCongress (@LawLibCongress)
NYLS Dean Richard Matasar speaks to National Law Journal about NYT article
You know the one we're talking about. Personally, I think the Dean Matasar is very sincere in his desire to change the supply-side problems with legal education and that the NYT's article unfairly singled him out for criticism. But don't take my word for it; in this interview with the National Law Journal, Dean Matasar tries to set the record straight (again) about high tuition, allegedly misleading employment stats and the slow process of legal education reform:
The National Law Journal spoke with Matasar about the Times article and why meaningful change at law school is so slow to come about. His answers have been edited for length.
National Law Journal: The New York Times reporter used your administration at New York Law School to make a larger point about legal education. Do you think it was fair to zero in on you?
Rick Matasar: You're going to zero in on somebody. I've been outspoken on the issues, and our school is an expensive law school. It's an easy enough set up: The person who represents an expensive law school is claiming we should lower costs. I wasn't surprised to be set up as a poster child, but I think it was unfair. Most of my writing and most of the things anyone can look at about the cost of legal education talk about how inflexible the costs are and how a minimum investment in a law school — in a regulated environment — almost ensures it will be a very expensive institution. I think it was unfair to focus on costs without focusing on value.
NLJ: But cost seems to be one of the things students are most concerned about.
R.M.: They are, but the question I always ask is, "What's the alternative?" When students ask the question upon graduating from college, "What am I going to do with my life?" they face high levels of unemployment as a B.A. out of college….When we have a conversation with students about that, we tell them, "Here is the cost side," so it's not a hidden discussion. We also tell them that the chance of landing a six-figure job immediately on graduation are not that great, certainly outside the top 10 or 15 law schools, but the long-term return on an investment in legal education has been, and continues to be, pretty good.
NLJ: You wrote a response to The New York Times article that said, essentially, that law schools can't cut costs because of the accreditation requirements set by the American Bar Association. It seems a little too easy to place all the blame on the ABA. The ABA didn't require New York Law School to build a new building, and it doesn't dictate what you pay your faculty. A recent IRS filing indicates that a few faculty members earn more than $300,000. Don't you have a responsibility to keep costs low for your students outside the ABA requirements?
R.M.: Yes, we do have that responsibility. There are ways that we've managed costs — though we are an expensive law school — that are quite different from other law schools. For example, a student who comes to NYLS never has their tuition increased while they are here. As far as I know, we are the only law school that does that.
NLJ: But can't you do that because your tuition is already high?
R.M.: We can, but when I came in as dean, almost 12 years ago, we were in the middle of the pack as far as New York law school tuition. We're still in the middle of the pack on tuition. In that time, we've also managed to put together a first-rate facility for our students and substantially increase the quality of our faculty with people who are doing almost all skills training, as opposed to doctrinal teaching. We improved our bar passage rate from 58% to consistently in the mid-80s or higher. We were an expensive law school 12 years ago and we are expensive law school now, but the increase in value over that period is exponential.
The second part is that we're in a competitive market….There are 15 New York law schools. Could we be the one law school in New York that decides it will reduce the quality of its program? Could we be the one law school in New York not to invest in student services, career services and a good faculty? Those are all things you have to be attentive to. Hiring a full-time faculty in a city like New York, you're going to have to be competitive with the salaries and benefits of other New York law schools. We don't have housing, as some of the other law schools in the city have. We don't have a university with hospitals where faculty can get their medical services. We're a stand-alone law school and we compete with law schools at very large universities that offer quite substantial packages for their employees.
NLJ: Do you think the typical New York Law School student would prefer a higher-profile faculty over lower tuition?
R.M.: All people want lower cost and higher quality. In the long run, we're talking about the preparation for a 50-year career. We can only reduce tuition by so much because we have a fixed set of costs in the people we've hired, and we have a fixed set of costs in the physical plant we maintain. We have a fixed set of costs that have to do with utility payments, the payments to maintain a library, the payments to keep an IT system functioning….It costs a lot to run a residential program if you're going to provide quality education to the students.
And, in the regulatory system that we have, there's a minimum requirement for what all schools must have to be an accredited law program….In the long run, any existing institution out there has to deal with the cost structure, but it's only got so many tools in the arsenal to deal with it. In the meantime, you still have to compete against the other 199 law schools that either will or will not choose to compete on cost. In this market, there are less expensive law schools. How much less expensive? Five or six thousand dollars. That's it. Except for [City University of New York School of Law] and [State University of New York at Buffalo Law School], the two publicly subsidized law schools.
NLJ: OK, but if your tuition is in the ballpark of the tuition at New York University School of Law, shouldn't your graduates expect to have similar job prospects as those coming out of NYU? It seems like buying a Toyota at the cost of a Mercedes-Benz.
R.M.: I sometimes talk about an education in terms that analogize it to a car — I give a talk to every first year student here that says coming to law school is like buying a brand new Mercedes-Benz every year on credit and pushing it off a cliff. But that metaphor isn't true. Unlike each Mercedes-Benz you buy, a year of law school takes you toward a lifelong career and the ability to practice law.
Education is not a commodity. It's not a product. It's a process of learning and becoming more than what you are before you start. The question becomes: If you are going to create an educational product for the student and equip them with the skills, and it's going to be expensive anyway, do you want it to be expensive and crappy or expensive and good? We've come to the conclusion that our first responsibility is to be as good as we can be.
NLJ: Most legal educators will agree with you that a law degree is a life-long investment, but most of your students are primarily concerned about that first job they will get when they graduate and how that will set them up for the rest of their career.
R.M.: That's true, but this is not a market when any student who comes to law school believes that the path is golden. The claims that, "I was so surprised to find out not every student gets a job at $160,000 a year," might have been significantly more credible three or four years ago. We are very forthright with our students about the job expectations they have….Students are not stupid and they're not naive. The testimonials we hear from students are very different from the stories that show up in the blogs, which is from a very dissatisfied group of students.
NLJ: What percentage of your students are finding full-time time legal employment nine months after graduation? The school's Web site says that 85% of the class of 2010 was employed after nine months, but doesn't separate those in full-time and part-time jobs.
R.M.: I can't tell you the exact number, but it's not as high as we'd like it to be. Most of the people who get their first job are getting it in something that's less than what they want. They're getting part-time work. They're stringing together a number of part-time jobs. They're getting full-time jobs at a lower salary that what they'd like. They're going to a small firm instead of a medium firm. They're not doing public-interest, they're doing government. But that's not different than it was 20 years ago or 30 years ago. The profession of law is incredibly mobile.
NLJ: The New York Times article discussed class size at New York Law School. Regardless of the so-called "bulge class" of 2009, which was 171 students larger than the previous class, you still graduate lots of students — about 500 a year. Do you think law schools have an obligation to reduce incoming classes in response to the job market? We've seen a number of law schools do that this year.
R.M.: That's a very complicated question. "We're reducing our class size." OK. Are you doing it because you want to or because you have to? I would say that the post hoc rationalization of reducing class size is one of the favorite tools of the world. New York Law School will have about 85 or 90 fewer students in the class that enters in the fall of 2011. I hereby declare we cut our class size. We did. Fewer students decided to come. That's a market. Fewer students decided to go to lots of law schools, and therefore they downsized. Ten students out of a class of 300 is a downsizing? I have some skepticism about the, "We are voluntarily choosing to downsize for moral reasons," when we are talking about very few numbers of students.
Secondly, let's suppose you can downside a law school, and by so doing you have to lay off faculty and staff because you don't have the income to pay their salaries. What are you doing to offset and improve the quality of the education of the students who are going to enroll? Will you cut classes? Will you cut the options they have in the upper level curriculum? Will you cut the delivery of career services? There is a relationship between the income of a school and what it provides to its students.
Cutting — where the purpose of the cutting is to achieve maintenance of your LSAT score to keep your rank in U.S. News, then accepting a large number of transfer students from some other school — is not cutting. That's predatory behavior. It does noting, in terms of the ultimate demand curve of education or the number of people out there in the job market. There are people who want to attend law school. They're going to attend my law school or they will attend the law school down the street.
NLJ: Given that New York Law School is stand-alone, and not expected to turn over a certain percentage of revenue to a larger university or answer to university administrators, don't you have more flexibility to experiment and find ways to lower costs? If you can't do that, what hope do other schools have?
R.M.: Yes. What are some of the differences? We have some control over our security costs, over building and grounds, over food service, over lots of central services that universities provide for their schools. When people talk about a tax rate [the percentage of revenue law schools are expected to turn over to their universities] — and I've been a university-based law school dean as long as I've been an independent law school dean — the cost of running places are very high, and universities bear those costs. So, schools are paying into a central overhead pool, and that's not a whole lot different than what happens at our law school, with us having to pay those costs directly. When you compare apples to apples, there's not going to be a lot of difference in the cost structures, although we have some more control.
As far as experimentation, our program is quite different. We do things that lots of university-based law schools would never do. We have a program that's directed toward our bottom-graded students that helps them get across the finish line and pass the bar exam. No schools, when we started, were doing this. We require the program. We staff it differently. We just brought in 15 first-year full-time faculty to teach a consolidated legal skills program in coordination with the other first-year classes. These are not rookie people right out of law schools. These are experienced, practicing lawyers making this their full-time job. That's a skills-training move that very few university-based law schools could do because they have the university telling them everybody has to be a research faculty member.
In terms of costs, we would push the envelope as far as we could with distance learning, and we've done that, but we can't go any further than what the regime [ABA] permits. We've got proposals to move to a two-year undergraduate program with a three-year J.D. follow-on for a total of five years, but we can't do that without ABA permission. There are things we are pushing all the way to the limit as an attempt to try things that will be more radical.
At the same time, the students who currently exist at New York Law School don't want to be at a school that is the Pariah College of Law and looks so different from every other law school that they feel they are at a disadvantage.
NLJ: But there's the rub. If no one is willing to take that leap, where will the change come from?
R.M.: It comes, as most things do, incrementally, unless the world comes to an end. If no one wanted to go to law school tomorrow, there would be a lot of radical change in legal education. People are still coming. I will say this: If you look across all law schools and ask the question of where things are happening, this is one of the places that is pushing and trying to make change occur.
NLJ: You've been talking about change in legal education for 20 years. In reality, how much appetite for change is there? People still want to go to law schools, law schools are still profitable and professors and administrations generally make good money. What's the incentive to change?
R.M.: There's some. For people who have been at this for a long time who are toward the tail ends of their careers, there's very little incentive to want to change. People can ride out the current world all the way to the end. They are secure and safe.
Younger faculty and administrators in our field see that there is a long horizon for this, and their appetite for change is quite strong. There are two drivers happening at the same time: a push and a pull. The push is easy. Students will push for changes. The government will push for changes. Reporters will push for change. The blogs will push for changes. People who see there might be a better way are pushing for change.
The pull portion is a little harder. The pull is coming from regulators. The pull is coming from those within. The pull is coming from the law firm world. And the pull is not very strong right now, but it is increasing. It will come from the employment world, as employers of all stripes do not want to be engaged in the training of law students. They do not want to be engaged in the finance mission of law students. They don't want responsibility for the young people in the profession.
I think the change period is upon us, and I think it will come to law schools probably sometime after it happens in other parts of the higher education hierarchy.
July 28, 2011
Friday Fun: Winner announced in annual Bulwer-Lytton bad fiction contest
Named after the Victorian novelist Edward George Bulwer-Lytton, this annual contest, which began in 1982, awards a prize for the worst opening sentence written for an imaginary novel. The 2011 prize goes to U. Wisconsin-Oshkosh Professor Sue Fondrie for the following opener:
Cheryl’s mind turned like the vanes of a wind-powered turbine, chopping her sparrow-like thoughts into bloody pieces that fell onto a growing pile of forgotten memories.
Below is the runner-up to Professor Fondrie as well as winners in some other categories:
As I stood among the ransacked ruin that had been my home, surveying the aftermath of the senseless horrors and atrocities that had been perpetrated on my family and everything I hold dear, I swore to myself that no matter where I had to go, no matter what I had to do or endure, I would find the man who did this . . . and when I did, when I did, oh, there would be words.
Wearily approaching the murder scene of Jeannie and Quentin Rose and needing to determine if this was the handiwork of the Scented Strangler--who had a twisted affinity for spraying his victims with his signature raspberry cologne--or that of a copycat, burnt-out insomniac detective Sonny Kirkland was sure of one thing: he’d have to stop and smell the Roses.
Winner: Purple Prose
As his small boat scudded before a brisk breeze under a sapphire sky dappled with cerulean clouds with indigo bases, through cobalt seas that deepened to navy nearer the boat and faded to azure at the horizon, Ian was at a loss as to why he felt blue.
Winner: RomanceAs the dark and mysterious stranger approached, Angela bit her lip anxiously, hoping with every nerve, cell, and fiber of her being that this would be the one man who would understand—who would take her away from all this—and who would not just squeeze her boob and make a loud honking noise, as all the others had.
Winner: Vile PunsDetective Kodiak plucked a single hair from the bearskin rug and at once understood the grisly nature of the crime: it had been a ferocious act, a real honey, the sort of thing that could polarize a community, so he padded quietly out the back to avoid a cub reporter waiting in the den.
Check out more "winners," runner-ups and dishonorable mentions here.
Hat tip to Chronicle of Higher Ed.
A Teaching Primer for New (and Not So New) Professors
I remember the helpful training I received when I started teaching. Wait! That’s right! I didn’t get and helpful training. It was sink or swim, with occasional bits of advice from other profs. Except for the AALS’ week long summer program for new professors, the non-training is still largely the way it has always been.
Let me recommend a new book by Wolters Kluwer (Aspen): “Strategies and Techniques of Law School Teaching” by Professors Howard Katz and Kevin Francis O’Neill. This thin book is a very helpful and detailed guide for the newbie teacher who is looking for sound advice from designing a syllabus to grading the exam.
Let me also mention three books on teaching by a group of talented teachers: Steve Friedland, Gerry Hess, Michael Hunter Schwartz, and Sophie Sparrow (Carolina Academic Press).
New e-reader launched designed specifically for students
We've blogged before that several polls of college students show that they continue to prefer conventional textbooks over e-texts despite their penchant for digital media in all other realms. There's a very lucrative market available to any e-reader manufacturer that can come up with a device that meets the needs of students and many are trying. The development of electronic ink which better replicates the experience of reading a printed page along with the ability to highlight and annotate are all features that students say they want. Polls also show that students will only consider e-readers that allow them to print hardcopy when they need it.
Now this company, Akademos, has entered the market with an e-reading device it hopes will satisfy all the needs of the college and post-grad market. Another advantage is that it designed to work with open source materials too.
Akademos, Inc., a leading provider of integrated online bookstores and marketplaces to educational institutions, announced today that it has launched a digital reader that will allow its member institutions to access electronic content from traditional publishers and from open resources, such as the Connexions Consortium, World Public Library, the Guttenberg Project, and many others.
. . . .
The Akademos eReader, which is compatible with the emerging standard ePub format, allows students to create notes, highlight, annotate, and collaborate with fellow students. And those students who would also like a print copy of the text can easily order one directly through the eReader itself.
Time will tell, as they say.
Hat tip to Inside Higher Ed.
July 27, 2011
Are Amicus Briefs by Law Profs Useless to Judges?
Over at PrawfsBlawg, Tun-Jen Chiang says the answer is yes. Are judges really seeking from law prof briefs help in legal analysis from people with expertise and time to conduct research? Professor Chiang says no. He says they are looking for support for their conclusions, but would prefer to find support in doctrinal articles rather than briefs:
But help in legal analysis and decision-making is not what judges are really looking for. A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal. What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself. An amicus brief provides less of the appearance of authority and objectivity than a law review article does. Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.
I hesitate to venture an opinion. Your answer will depend on how much of a legal realist you are.
Wednesday Fun: Buy the Big Lebowski's house
If you’re looking for a nice little place in Venice, California, you can’t go wrong with the cottage in which lived the Dude from The Big Lebowski. Actually what you’d be buying is a compound of six one bedroom cottages, so the total price is $2,295,000, but I’m sure you could more than make up for that with higher rent, as long as each one had a peed-upon rug.
Bulldog Realtors doesn’t say which one was actually used for filming The Big Lebowski, but if you owned them, I guess you’d have plenty of time to find out.
Hat tip to Corey Friedman.
Writing Tip of the Week
Creating Emphasis III
Punctuation can affect emphasis, especially punctuation of descriptions or parenthetical expressions. Consider the following examples.
Bill married Laura–his mother's protégée.
Bill married Laura, his mother's protégée.
Bill married Laura (his mother's protégée).
"His mother's protégée" in the first sentence is strongly emphasized, it receives normal emphasis in the second sentence, and it is de-emphasized in the last sentence. Say each of these sentences out loud, giving them the emphasis indicated by the punctuation. Most writers will generally use a comma to set off descriptions. However, carefully considering whether a description should be emphasized or de-emphasized can improve the effectiveness of your writing.
Bibliography of recent scholarship on the legal profession - Part 7 - ADR
The final 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, Part 3, here, Part 4, here, Part 5, here and Part 6, here.
7. Alternative Dispute Resolution
Maggie T. Grace, Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, and Renewing Public Norms, 34 VT. L. REV. 563 (2010).
Robert J. Grey, Jr., Promoting the Rule of Law by Facilitating Alternative Dispute Resolution, 16 No. 4 DISP. RESOL. MAG. 29 (2010).
Peter Reilly, Mindfulness, Emotions, and Mental Models: Theory that Leads to More Effective Dispute Resolution, 10 NEV. L.J. 433 (2010).
James M. Van Nostrand & Erin P. Honaker, Preserving the Public Interest Through the Use of Alternative Dispute Resolution in Utility Retail Rate Cases, 27 PACE ENVTL. L. REV. 227 (2010). This article discusses the expenses involved in utility general rate cases, and how the public interest could be better served by the use of alternative dispute resolution in such cases.
July 26, 2011
Book Recommendations by Lawyers for Lawyers
The ABA Journal recently published a list of 30 books every lawyer should read. The full article and list here.
Here are a few gems from the list:
Roy Black – My Life in Court by Louis Nizer
Morris Dees – The Story of My Life by Clarence Darrow
Marci Hamilton – The Horse’s Mouth by Joyce Cary
William T. Robinson, III (incoming ABA President) – Emotional Intelligence: Why It Can Matter More Than IQ by Daniel Goleman
Eugene Volokh – The Legal Analyst: A Toolkit for Thinking About the Law by Ward Farnsworth
Is There Room for Another Law Journal?
Some prominent academics think the answer may be yes. I have just received a copy of volume1, no.1 of the Journal of Law, published under the auspices of the Green Bag. The idea is to have a journal that is really a compilation of several mini journals that are innovative by law review standards. Although the issue is innovative, I think it could have been more innovative, for example, including a mini journal of short essays with the intellectual contents of the full traditional article. But decide for yourself. Here is the website. Here is the description of the journal:
The Journal of Law looks like a conventional law review, but it is really a bundle of small, unconventional law journals, all published together in one volume.
This approach saves money over separate publication. It also frees editors of the individual journals to spend more time finding and refining good material, and less time dealing with mundane matters relating to the printing of their work product.
Thus the Journal of Law’s generic name: it is no one journal in particular, and it is not tied to any particular institution, subject, specialty, or method.
The idea is that the Journal of Law will be an incubator of sorts, providing for legal intellectuals something akin to what business schools’ incubators offer commercial entrepreneurs: friendly, small-scale, in-kind support for promising, unconventional ideas for which (a) there might be a market, but (b) there is not yet backing among established, deep-pocketed powers-that-be.
For a more elaborate explanation, see
Ross E. Davies, Like Water for Law Reviews: An Introduction to the Journal of Law, 1 J.L. 1 (2011).
Tuition alligators and legal education
The New York Times’s “Room for Debate” topic titled “The Case Against Law School” has generated a fair amount of attention, including posts here, here, and here on this blog. In an age of test-focused, create-a-compliant-employee models of education reform (e.g., No Child Left Behind), I side with debaters Linda Greene, Kevin Noble Maillard, and Geoffrey R. Stone, all of whom address the issue of valuing a law school education in terms beyond those that can be monetized or crammed into some other seemingly objective metric.
Looking back over the decades since I graduated, I can’t figure out how to objectively measure the value of frameworks for thinking that took three years of law school to materialize — frameworks I’m confident I would not have developed through apprenticeship and that have proved valuable (in intangible ways) not just in dealing with legal matters, but, as well, in understanding and dealing in practical ways with economic, social, political, ethical, and moral issues I encounter during my stumblings through life. Courses in labor law and regulated industries (both taught by the same professor) introduced me to Chicago economics and led me both to think more critically about, and to expand, my understanding of economics and (unexpectedly) to begin exploring more broadly the role of design in decisionmaking (a journey in which noneconomist and nonlawyer Don Norman routinely proves a trustworthy guide). My course in constitutional law opened up a different and useful way of thinking about the Constitution and law in general. A simulation seminar on Supreme Court decisionmaking provided striking insights into institutional decisionmaking and how institutional interests affect personal interests (and vice versa).
I don’t contend that alternative models of legal education won’t or can’t work. I do object, however, that those who press for alternative models tend to focus almost exclusively on the cost of obtaining a law degree while denigrating or ignoring benefits that don’t translate directly or immediately into a paycheck. I certainly understand (based on the level of debt I incurred) that when faced with tuition bills like those law students encounter these days, it’s difficult (impossible, maybe?) to foresee distant benefits. But even as my student debt (and that of my wife) mounted in those days, I recalled the placard that often appeared in offices in which I worked during my military service: “When you are up to your ass in alligators, it is difficult to remind yourself that your initial objective was to drain the swamp.” When tuition dollars look like those alligators, it’s difficult to remind yourself that education is, in fact, about more than the alligators.
ATL's David Lat on the "broken law school" model - "Bring Back Apprenticeships"
Aspiring lawyers will learn more practical skills, stop accruing debt sooner and start making money faster.
Here's Mr. Lat's contribution to the series of NYT's editorials on the broken law school model (we reported Bryan Garner's contribution here and Professor Fruehwald offered his thoughts here).
Before the rise of law schools, lawyers were trained through apprenticeship. “Apprenticeship involved learning the law the way we expect someone today to learn plumbing: in the workplace, as a practical trade,” writes the Yale legal historian John Langbein. “You learn plumbing by working with, observing and imitating an experienced master.”
The modern practice of law, with a proliferation of increasingly technical specialties and subspecialties, is more complicated than plumbing. Formal apprenticeship has fallen by the wayside as a method for training lawyers. Adding apprenticeship back into the system could make legal education shorter, less costly and more practical.
The core of the legal curriculum is covered in the first year of law school. One could easily imagine law school, in terms of formal classroom instruction, lasting two years instead of three and costing two-thirds as much.
After two years, graduates could start working as apprentices for practicing lawyers and being paid, albeit modestly, perhaps like paralegals or medical residents. The bar exam could be administered at the end of an apprenticeship, or in multiple parts at different points in the process, like the medical board exam. Successful completion of an apprenticeship and passage of the bar exam would qualify an individual as a lawyer.
Under this system, aspiring lawyers would stop accruing debt and start earning money at an earlier point. As apprentices, they would learn about the actual practice of law, addressing the common complaint among employers and clients that young lawyers, fresh out of school, lack practical knowledge. Employers who hire apprentices would receive inexpensive labor and could train these workers to their specifications. This model, balancing the theoretical and practical, is similar to what’s used in Canada and Britain, where legal education is less expensive and more practice-oriented than in the United States.
Check out additional thoughts from Mr. Lat about the apprenticeship model of legal ed. here, via ATL.
So your screwed up that research memo to the partner, now what?
Advice on how summer clerks (and lawyers) should handle mistakes via Above the Law's small firm columnist Valerie Katz. (The long and short of it; fess up and fix it. The worst thing you can do is to be deceptive by trying to hide a mistake).
1. Do not panic.
Given most attorneys’ Type A personality, there is a tendency to freak out over making a mistake. That will only make the problem worse.
2. Determine exactly what went wrong and why.
Sometimes this will be obvious. For example, you missed a status hearing. Other times it may be less obvious. For example, at oral argument the judge asks about an argument you did not consider. It is important to understand the extent of the problem and the reason for it, because this is key to determine how you are going to fix it and prevent it from happening again in the future.
3. Come up with a plan to fix the problem.
You may be able to do this on your own, but likely you will need to ask for help. Do not try to handle the problem alone because you are afraid of the consequences. In so doing, you are not serving your client’s best interests or your own (because you will make the situation worse for yourself).
4. Fess up.
Once you have a handle on what happened and what you are going to do to fix the problem (subject to suggestions from the partner), it is important to tell the partner. This makes it clear to the partner that you take your job seriously and are proactive. Obviously, the partner may not think highly of you at the moment you tell him or her of the problem but doing so, especially right away, will make the partner more likely to forgive you.
5. Do not make excuses.
When you tell the partner what happened, give the facts and apologize. Do not make excuses. No one cares that you were up all night or had computer problems.
6. Move on.
It is natural to dwell on the fact that you made a mistake. Fight that urge. If you do not move on, then neither will the partner, and you may be distracted — causing you to make additional mistakes. Feel good that you handled the problem in a professional way and strive to do better in the future, but do not obsess over the past. Similarly, do not avoid the partner. If you do, then the last impression he or she will have of you is a negative one.
7. Try to avoid making the same mistake twice.
Because you did the work to determine what went wrong and why, it should be easy for you to come up with a plan to avoid a similar problem in the future. Be overly diligent until you are comfortable with your plan and know that it works. For example, if you missed a hearing, you should tell your assistant to remind you each time you have a hearing or keep a record of all court appearances on a whiteboard where you cannot miss it.
8. Go out of your way for the partner in the future.
Go out of your way to be proactive for the partner on the matter with the mistake. There are some attorneys who are not that forgiving. Do not give them any reason to feel that way about you.
Bibliography of recent scholarship on the legal profession - Part 6 on Privilege and the Attorney-Client Relationship
The sixth 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, Part 3, here, Part 4, here and Part 5, here.
6. Privilege and Attorney Client Relationship
Noah P. Barsky, Anthony H. Catanach, Jr., Ilya A. Lipin & Shelley C. Rhoades-Catanach, Protecting a Client's Confidences: Recent Developments in Privileged Communication Between Attorneys and Accountants, 28 J.L. & COM. 211 (2010). This article examines how recent cases have affected privileged communications in tax and transactional matters between attorneys and accountants who have been retained for the purposes of client representation.
Anthony Francis Bruno, Preserving Attorney-Client Privilege in the Age of Electronic Discovery, 54 N.Y.L. SCH. L. REV. 541 (2010). This article provides an overview of the history of the attorney-client privilege and discusses the unique problems electronic discovery has created in the area of the attorney-client privilege.
Katrice Bridges Copeland, Preserving the Corporate Attorney- Client Privilege, 78 U. CIN. L. REV. 1199 (2010). This article argues for the necessity of legislation such as Attorney-Client Privilege Protection Act in order to protect the corporate attorney-client privilege. However, the author contends the Act or any similar legislation must include remedies for violations in order to be effective.
Keith Kendall, The Economics of the Attorney-Client Privilege: A Comprehensive Review and a New Justification, 36 Ohio N.U. L. Rev. 481 (2010).
Gregory C. Sisk, Pamela J. Abbate, The Dynamic Attorney-Client Privilege, 23 GEO. J. LEGAL ETHICS 201 (2010). [*183]
Elizabeth King, Waving Goodbye to Waiver? Not So Fast: Inadvertent Waiver of the Attorny-Client Privilege, and Federal Rule of Evidence 502, 32 CAMPBELL L. REV. 467 (2010). This article explores Federal Evidence Rule 502, in respect to waiver of the attorney-client privilege through inadvertent disclosures. The article focuses mainly on the application of Rule 502 to inadvertent disclosures made through electronic discovery.
Jean Fleming Powers, Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm - Can Hard Cases Make Good Law?, 79 UMKC L. REV. 61 (2010).
David B. Wilkins, Team or Rivals, Toward a New Model of the Corporate Attorney-Client Relationship, 78 FORDHAM L. REV. 2067 (2010).
July 25, 2011
Google Plus for Lawyers
Is the new Google Plus the “Facebook Killer?” Only time will tell. In the meanwhile, Jay Fleischman at Legal Practice Pro offers lawyers a lot of information about Google Plus and ways to use it.