August 6, 2011
A Violent Metaphor in the Debt Ceiling Debate
The debt ceiling debate has has been described in very conflict-oriented terms--no surprise there. What has caught my attention is one word: "trigger." Click on Google and enter three search terms: debt+ceiling+trigger. You will pull up nearly 2,000,000 results. That word is everywhere. "Trigger" is the word we use to describe the mechanism for firing a gun. If words have meaning and influence our thinking, we can do without violent words, especially this one.
Everything you need to know about cloud document storage (but were afraid to ask)
Cloud backup services, which store files on internet-based servers, can take much of the pain out of creating and maintaining document backups. Cloud storage allows attorneys to transfer essential files to a secure, remote location almost as soon as they are created, virtually eliminating any possibility of losing an important file to accidental erasure or a natural or man-made calamity.The downside is that cloud computing is still an emerging technology, which can make it difficult for an attorney to find a high-quality service that's both efficient and cost-effective. Here's some advice to help you cut through the cloud computing fog
The various cloud backup services are taking different approaches to online storage. Some companies, like Mozy, offer users proprietary client software that monitors files or folders stored anywhere on the user's computer and automatically backs the items up whenever they change.
Dropbox, on the other hand, requires users to place files and/or folders into a special computer-based folder that automatically syncs into the cloud. If anything happens to the user's computer and its files, the data located in the Dropbox folder can be retrieved simply by reconnecting to the service. Dropbox can also be used to sync files on multiple devices, including laptops, smartphones, and tablets.
One of the biggest benefits is the anywhere, anytime access. "This is especially important for lawyers who work around the clock and need access to their information at any hour," says Courtney Kaufman, a manager at Accent Computer Solutions, an IT services provider located in Rancho Cucamonga, Calif. "Whether you're at your desk, on your laptop, smartphone, or tablet, you have access to the same information and you'll be fully working."
SugarSync, meanwhile, offers a kind of hybrid service that offers both automatic syncing across multiple user devices as well as client software that watches over files and folders located anywhere on the user's computer.
Yet another cloud backup alternative is Amazon Simple Storage Service (Amazon S3), which, despite its name, isn't particularly simple to use. To backup data with Amazon S3, users need to open an account and create a "bucket" (which is how S3 describes a storage folder). Next, the user has to find S3-compatible backup software and supply it with the unique public and private keys required to use the service. For most lawyers, Amazon S3's complexity negates any possible financial benefit.
Cloud storage is generally more expensive on a per-gigabyte basis than physical media backup technologies such as portable drives, DVDs, and memory sticks and cards. Dropbox.com, for instance, charges $200 a year for 100GB of online storage. Mozy.com is cheaper, offering 125GB of storage for approximately $120 per year. In both cases, the costs for a specific amount of storage is ongoing, unlike physical media, which is purchased once and is likely to last for many years.
Virtually all cloud backup providers use data encryption -- typically Advanced Encryption Standard technology at a 128-, 192- or 256-bit security level -- to safeguard sensitive information from internal and external snoops. Therefore, as long as one uses a secure password and carefully protects it, the chance of a hacker or other unauthorized party accessing a cloud-stored file is very small.
Even with provider-supplied safeguards, the burden of assuring the existence of cloud adequate security falls squarely upon the attorney using the service, says Jim Kunkick, chair of the intellectual property and technology group at Much Shelist, a Chicago law firm. He points to the ABA’s Formal Ethics Opinion 95-398, which states: “A lawyer who gives a computer maintenance company access to information in client files must make reasonable efforts to ensure that the company has in place, or will establish, reasonable procedures to protect the confidentiality of client information. Should a significant breach of confidentiality occur, the lawyer may be obligated to disclose it to the client.”
But cloud providers don’t always make it easy for attorneys to ensure client data safety or privacy. Dropbox, for instance, made headlines in June over a nearly four-hour data breach that the company claimed affected fewer than 100 accounts, as well as a perceived lax attitude toward customer data privacy.
Rajesh Goel, chief technology officer at Brainlink International, a New York-based compliance security consulting firm, warns that storing data in the cloud could, under some circumstances, pose a privacy risk to client data. "If a firm is large enough and they have the financial and technical resources to build their own private cloud, then the advantages of cloud computing are compelling," he says. "For firms lured by the low cost/save money siren song of public and hybrid clouds, there's danger ahead."
Goel observes that while the Electronic Communications Privacy Act assures that e-mail has a 180-day right to privacy, information held in databases has zero days of privacy protection. "All online applications ... can be classified as databases, under the strict definition of ECPA," Goel asserts.
Goel says that attorneys also need to be aware of another potential privacy threat. "The Patriot Act allows law enforcement to use National Security Letters to obtain information about individuals and companies from service providers," he says. "Most NSLs forbid the service provider from notifying their clients that they have released information to law enforcement, based on NSLs."
Goel adds that lawyers with clients in highly regulated areas, such as health care and financial services, also need to fully investigate their situation and privacy risk potential before sending files into the cloud.
While cloud backup services are highly reliable, and users are far less likely to lose data to a cloud snafu than to damaged or lost physical media, problems occasionally surface. Carbonite, for example, experienced a hardware failure in 2009 that resulted in some 7,500 customers losing access to their stored data, some permanently.
Perhaps most essential to cloud reliability, particularly with a sync-type service such as Dropbox, is having a fast and steady internet connection. "If your internet connection is lost (to a cloud syncing service), you won't be able to work," Kaufman observes. "The upside here, though, is that because your information is cloud-based, you can go to any wireless hotspot and you're back in business."
Cloud backup services provide a safe and convenient alternative to traditional data backup technologies, but at a higher cost, with some potential cost disadvantages, and reliability and privacy risks.
August 5, 2011
Turns of Phrase that Shakespeare Created
For wordsmiths, William Shakespeare sets a goal to high for any of us to reach. Anglotopia has assembled a massive list of phrases that the Bard created. Here are just ten:
- A countenance more in sorrow than in anger
- A Daniel come to judgment
- A dish fit for the gods
- A fool’s paradise
- A foregone conclusion
- A horse! A horse! My kingdom for a horse!
- A ministering angel shall my sister be
- A plague on both your houses
- A rose by any other name would smell as sweet
- A sea change
- A sorry sight
More scholarship from Iowa's symposium on the future of legal education.
The conference was held last February. Here are the details in case you missed it (press coverage here). And below are some of the articles published by the Iowa Law Review that may be of interest to our readers.
On Becoming a Lawyer by Joel W. Barrows: View Article.
What Will Our Future Look Like and How Will be Respond? by Michael A. Fitts: View Article.
The Importance of Student and Faculty Diversity in Law Schools: One Dean’s Perspective by Kevin R. Johnson: View Article.
Seven Principles: Increasing Access to Law School Among Students of Color by Catherine E. Smith: View Article.
Training the Whole Lawyer by Deanell Reece Tacha: View Article.
And here's a link to yesterday's post about Professor Ribstein's article Practicing Theory: Legal Education for the Twenty-First Century from the same conference.
August 4, 2011
Writing for Litigation
Congratulations to Kamela Bridges and Wayne Schiess on their new book, Writing for Litigation (Wolters Kluwer/Aspen). It is a pleasure to have a book on the subject written by two experienced Legal Writing professors who understand that clear organization and clear writing are critical lawyering skills. They offer as guidance four principles:
1. Make Information Accessible.
2. Avoid Hyperformal, Pompous Legalese.
3. Consult Writing Sources.
4. Produce Neat, Attractive Documments.
Here is the publishers abstract:
Writing for Litigation offers in-depth coverage and helpful tips for every type of document associated with the life of a case, from the client engagement letter to motions, discovery, client communications, affidavits, and more. Systematically examining each document and its constituent parts, this remarkably concise text explains how audience, purpose, and strategy determine the content and tone of effective writing. An on-line Teacher’s Manual provides abundant drafting exercises and in-class assignments.
Online Legal Forms – Unauthorized Practice of Law?
The Wall Street Journal Law Blog reports that a class action suit has been filed in Missouri. The suit claims that LegalZoom.com, by selling do-it-yourself wills, leases and other legal documents, is committing unauthorized practice of law. The full post is here.
“If the plaintiffs are successful, we believe it is going to become a lot more expensive for small businesses and individuals to obtain basic legal forms,” Chas Rampenthal, Legal Zoom’s General counsel, said in the statement. “Missouri would become the only state in the nation to take away a consumer’s right to access online legal document software.”
The case is set for trial in September. Stay tuned.
Hat tip TJSL Law Library (@TJSL_Library)
New scholarship: "Practicing Theory: Legal Education for the Twenty-First Century"
This one is from last February's symposium on the future of legal education at U. Iowa. It sounds interesting. Authored by Professor Larry Ribstein (Illinois), it can be found at 96 Iowa L. Rev. 1649 (2011). From the abstract:
Law practice and legal education are facing fundamental changes. Many assume that these changes will force law schools to give up on theory and focus more on training students for the practice of law. However, this essay shows that the future may be more uncertain and complex. The only thing that is certain is that law schools may face, for the first time, the need to provide the type of education the market demands rather than serving lawyers' and law professors’ preferences. Legal educators must respond to these demands by serving not just the existing U.S. market for legal services but also a global market for legal information. This may call for training in some, but not all, of the theories and disciplines that have been developing in law schools.
Hat tip to the TaxProf Blog.
Texas law deans weigh-in on how to prepare students for a tough job market
From the Texas Lawyer:
Texas Lawyer: What is your law school doing now to prepare students for the tough job market?
Faye Bracey, assistant dean for career services, St. Mary's University School of Law: We are doing a number of things to prepare our students for the job market. This includes continuing traditional methods of career placement such as on-campus interviews and résumé collects as well as expanding programming throughout the year. We are constantly working to get our students in front of employers; for example, we have tripled the number of job fairs we sponsor in the spring and dramatically increased the participants in our leader-to-leader initiative and our judicial clerkship program resulting in increased job placement at graduation. In addition, we have revamped our internship/externship program and are currently hiring a full-time coordinator for this program.
Darby Dickerson Dean, Texas Tech: Texas Tech provides realistic information to students and potential students by discussing the challenging job market. The Career Services Center provides one-on-one counseling to students about career objectives, provides job acquisition skills training, and provides career choice information to students throughout the law school experience. Recently, the number and variety of these programs has been strengthened and reinforced. The career choice programs include significant focus on alternative careers and opening solo law practices within the state. Texas Tech Law offers dual-degree programs and certificate programs that expand the expertise of the graduate and more directly prepare graduates for specific job types. [The] Texas Tech Law Career Services Center has undertaken employer outreach programs to assure that Tech law graduates enjoy an opportunity to compete for jobs in Texas and beyond.
Donald J. Guter, president and dean, South Texas College of Law: [W]e believe that the best way to deal with the surplus is to make our graduates the best prepared to compete in this market. Thus, we have incorporated into our new strategic plan the following objectives: to create and continuously improve learning opportunities for diverse practice areas to take our students from theory to practice (the term practice-ready is often used) while sustaining the breadth of our curriculum; to create and continuously refine the learning outcomes for individual courses; to embed skills and values education throughout the law school experience; to develop faculty in terms of diversity and substantive areas of the law that will enhance our reputation; to educate our students about career choices, opportunities and resources from the beginning of their relationship with South Texas; and to enlist our alumni in all phases of the law school to maximize opportunities to network and to find mentors. . . .
Raymond T. Nimmer, dean, University of Houston Law Center: We have expanded our skills training programs and increased our career development office by over 40 [percent] in the last [one-and-a-half] years. We have expanded our public service fellowship program by over 100 [percent] from three years ago and created what we describe as an apprenticeship course (involving over 40 students) focused on individual externship placements with small law firms, which are burgeoning in the Houston area. We revised our first-year curriculum and are reviewing our third-year requirements to ensure that all graduates receive exposure to needed skills and theoretical concepts for the use of their law degree. We do a variety of events involving outreach to potential employers in other parts of Texas for our graduates.
Read what they say about the lawyer glut, transparency in reporting recent grad employment stats and how their own grads are faring in the job market by clicking here.
Hat tip to ATL.
August 3, 2011
Beware of Scams Aimed at Lawyers
A posting on the Texas Bar blog describes a number of scams that lawyers should watch out for. At the moment, lawyers have posted 31 comments describing their encounters with aspiring scammers—worth reading. Here’s the big message:
Texas attorneys should be extra-vigilant regarding potential scams involving fraudulent checks or wire transfers. These scams are increasing in sophistication, sometimes involving innocent third parties who seek legal services at the request of a scam artist.
The bottom line is this: Never issue a check from a trust account until deposited funds have been collected.
Again, be vigilant and do not disburse funds from your accounts until underlying funds have cleared your bank (and not simply been made “available”).
I think that law students should be getting more exposure and training on e-discovery issues. It seems like having this expertise would really help in the current job market. A recent post on Law.com’s Legal Technology News blog discusses education and certification in e-discovery. The full post is here.
“At least anecdotally, there is much demand for formal training. There are a good handful of educational opportunities, such as the Association of Certified E-Discovery Specialists, Organization of Legal Professionals, and Association of Litigation Support Professionals.”
It seems to me that law schools could be contributing to help build these important skills for the next generation of lawyers. This would be a great elective course to add to the curriculum.
Tip of the Week: Five Methods of Legal Reasoning
Five Methods of Legal Reasoning
1. Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional distress (element 4), intentional infliction of emotional distress has taken place.
2. Reasoning by Analogy
2. Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present case.
3. Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to toy poodles.
4. Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present case so the rule in the precedent case should also apply to the present case.
5. Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to both personal injury and property damage.
How to install and use digital highlighters
At least two companies offer an electronic version of the traditional, yellow Highlighter so you can mark and annotate text online. The first is by Highlighter.com. Check out their demo video by clicking on this link - Highlighter from Highlighter on Vimeo.
The second offering is by a German company called edding. Their demo video is below:
Hat tip to Ken Adams's The Koncise Drafter.
Total job offers to 2010's summer associates fell by 33% but ratio of offers to no-offers improved
From the American Lawyer:
The latest version of The American Lawyer's Summer Hiring Survey shows that large law firms extended 33 percent fewer job offers to their summer associates last year than they did the year before--a drop partially explained by the fact that summer classes were down across the board.
Among the 79 firms that responded to the survey, 1,791 summer associates received offers in 2010, compared to the 2,679 who got offers in 2009. Fifty-six firms made fewer offers to summer associates last year than they had in 2009, 16 made more, and seven made the same number.
. . . .
Skadden, Arps, Slate, Meagher & Flom reported the largest drop in the number of offers, going from 207 in 2009 to 71 in 2010, a 66 percent decline. Cravath, Swaine & Moore reported the largest percentage drop in offers, decreasing 81 percent from 118 in 2009 to 22 in 2010. At the same time, the two firms' offer rates didn't change much between the two years. Skadden's rate went from 92.8 percent in 2009 to 89.8 percent in 2010, while Cravath's went from 95.9 percent to 95.6 percent.
One explanation for the declines in the raw number of offers at those two firms--and many others--was that there were simply fewer people to offer jobs to. Skadden's summer associate pool went from 223 in 2009 to 79 in 2010; Cravath's went from 123 to 23. (Like many big firms, both Skadden and Cravath bumped the size of their summer classes up this year; overall the firms surveyed, on average, had slightly fewer summer associates this year than last. The Am Law Daily will publish a report about summer class sizes in the coming days.)
. . . .
Because most firms reduced their class sizes so significantly in 2010 from 2009 levels, the rate at which summer associates were offered jobs actually rose slightly last year, according to the National Association for Law Placement (NALP). The percentage of summer associates snagging full-time offers last year jumped to 87.4 percent at the firms NALP surveyed, compared 69 percent the prior year. The rate was 89.9 percent in 2008, according to NALP.
"Law firms recruit so far out that they had recruited big summer classes before the brunt of the slow-down was felt, and they had larger summer classes coming through the pipeline than they could accommodate," says NALP executive director James Leipold.
That glut of candidates, coupled with a number of deferred associates who had been promised spots, resulted in the major dip in offer rates, Leipold says. Firms reacted to that trend, he adds, by bringing in smaller summer classes to have the ability to make offers to a higher percentage of young lawyers.
You can read more details here.
August 2, 2011
Congressional budget deal will make loans for grad student more expensive
Some students will start owing more on their loans while they're in school under a last-minute debt ceiling deal to keep the country out of default and reduce deficits by at least $2.1 trillion over a decade.The idea for the cuts originally came from the Republican-controlled House, but even Senate Majority Leader Harry Reid proposed cutting the graduate school subsidized loans in budget talks last week.
As part of the savings to trim the deficits, Congress would scrap a special kind of federal loan for graduate students. So-called subsidized student loans don't charge students any interest on the principal of student loans until six months after students graduated.
Congress would also nix a special credit for all students who make 12 months of on-time loan payments.
The changes would take place July 1, 2012.
For taxpayers, the savings taken from the pockets of students will total $21.6 billion over the next ten years, according to the Congressional Budget Office.
For graduate students who qualify for the maximum amount of subsidized loans, it could tack several thousand dollars to the cost of going to school.
The money saved by the student loan cuts would help pay to keep Pell Grants, which so far are maintained at a maximum grant of $5,500 a year for some 8 million poor students.
Of the $22 billion saved, $17 billion will go to fund Pell Grants, which only leaves that program $1.3 billion short, said student aid groups. That's why most groups can live with the cuts to graduate student loans.
The rest of the savings goes to deficit reduction.
"Full funding for Pell Grants is absolutely essential to fulfilling the president's goal of the U.S. once again having the highest proportion of college graduates in the world by 2020," said Pauline Abernathy, vice president of the Institute for College Access & Success.
The maximum a graduate student can borrow from the federal government is $20,500 a year, including $8,500 from subsidized loans where the federal government absorbs the interest rate while the student is in school. Over the course of a degree, graduate students can accrue up to $138,500 in direct federal loans, with $65,500 from subsidized loans.
A graduate student who borrows the maximum of $65,500 in subsidized loans would owe $207 a month in interest payments over the course of 10 years. But with a subsidized loan, the government pays that $207 each month the student attends school until six months after graduation.
This change would shift some $125 billion in loan volume over to unsubsidized loans and would cost students $18.1 billion over the next decade, according to the Congressional Budget Office.
Graduate students would start accruing the interest rate payments while they're in school, but they wouldn't have to start making payments on the interest or the principal until after graduation. They can choose to pay the interest while they're in school.
"With the elimination of the graduate interest subsidy, it is also clear that graduate and professional school students will be hard-hit in terms of their total indebtedness," said Justin Draeger, president of the National Association of Student Financial Aid Administrators. "Our members are disappointed to see the pullback in loan repayment incentives."
The other big cut that Congress is targeting is a credit that all students get on the origination fee they pay the federal government to process their loans. Students pay 1% of a Stafford loan as an origination fee, but all students get half of that back unless they miss one of their first 12 payments.
The loss of that credit would cost a student who borrows $5,000 from the federal government $25. This would cost students $3.6 billion over the next decade, according to the budget office.\
Hat tip to Robert Levine.
Intrusive Thoughts That Divert You From Work: A Way to Rein Them In
You need a very disciplined mind to keep intrusive thoughts from pulling you away from your writing and other professional work. Which tasks get a high priority and which do not? Here's an interesting technique from Prof Hacker at the Chronicle of Higher Education--the Falling Tree Method. It requires posting notes on a simple chart to measure the diverting tasks according to whether they have a high or low impact on your business (work) and how big an investment they require in terms of time and money. Then you draw in the falling tree . . . .
Why you should never use "and/or"
From the Canadian legal blog Slaw:
Although there is some support for “and/or,” the weight of authority is against its use, primarily for two reasons: (i) its use can result in uncertainty, (ii) it is not a real word.
I definitely fall into the camp of those who “wax indignant” over its use (these are Ken Adams’s words at p 109 of his Legal Usage in Drafting Corporate Agreements (Westport, CT: Quorum Books, 2001). And even though Adams seems to tolerate on the same page the convenience of “and/or” as merely “one of the more benign drafting evils” (in appropriate circumstances where it does not result in ambiguity), he “tends to avoid using and/or” in his own drafting (he also provides more commentary, and examples, in his book A Manual of Style for Contract Drafting, 2d ed (Chicago: ABA Section of Business Law, 2008) at paras 10.56 to 10.60).
Otherwise, the strongest support in favour of “and/or” that I have found comes from my copy of Fowler’s Modern English Usage, 3d ed (London: Oxford University Press, 2000), where it is suggested that “and/or” was first recorded in the mid-19th century in legal contexts (hardly a reason to support its continued use). The phrase is described as “a formula denoting that the items can be taken either together or as alternatives.” The text further notes that it is “still employed from time to time in legal writing” but then notes it “verges on the inelegant when used in general writing” and that the “more comfortable way of expressing the same idea is to use ‘X or Y or both,’ or, in many contexts, just ‘or.’” (p 53).
In my opinion, the better view is to simply avoid “and/or” all together, as suggested by a number of leading authorities [that includes The Chicago Manual of Style, Strunk & White and Bryan Garner].
If you want to see the full roster of authorities who frown on the "and/or" construction, click here and scroll down.
Hat tip to Ken Adams's The Koncise Drafter.
August 1, 2011
Videos of Presentations at the Applied Legal Storytelling Conference
The Applied Legal Storytelling Conference at the University of Denver’s Sturm College of Law was a fabulous event, rich in creative ideas. Sponsored by the Legal Writing Institute and the Clinical Legal Education Association, the Conference offered almost 60 presentations on a variety of topics. Now, almost all these presentations are available on video. To access them, just click here. If you are interested in history as narrative, you can view my presentation on Benjamin Franklin’s call for prayer at the Constitutional Convention and the myths that flowed from it. (Saturday, July 9, at 9:00 a.m.).
Use Twitter to Follow Progress on Pending Legislation
I am amazed at how over the course of the last year or so, I have been using Twitter for most of my current awareness research (and it reaches me much faster than email or listserv resources). I would recommend that anyone doing legal research should include Twitter as a valuable resource.
One example of a valuable use of Twitter is following pending legislation. Following Thomas.gov on Twitter will allow you to have up to the minute updates on pending legislation. The recent debt ceiling negotiations in Congress are a prime example of how important a resource Twitter has become.
The Law Library of Congress announced the service last April here.
“The @THOMASdotgov account will provide alerts on THOMAS updates, bills being considered on the floor of Congress, and will serve as a venue for feedback on THOMAS.”
This is a great example of a free resource that all law students and practicing lawyers should be aware of and learn to incorporate into their research toolboxes.
The Need to Educate Emotionally Competent Lawyers
As those who regularly read this blog know, legal education is changing quickly. However, one aspect of teaching lawyers that hasn't received much attention is teaching lawyers in emotional competence. Yet, evolutionary psychologists have shown that the our brains work vastly different than the model of the brain of Langdell's time. Robin Wellford Slocum has recently posted an article on SSRN that fills this lacuna.
An Inconvenient Truth: The Need to Educate Emotionally Competent Lawyers
The dominant presumption within legal education, that we can teach students to “think like lawyers” with a nearly singular focus on training the analytical mind, is a fiction based on a 19th Century understanding of the human brain that is inherently flawed. This fiction has spawned an equally faulty premise that still dominates legal education today – that we can train students to be effective lawyers by virtually ignoring students’ emotions and by marginalizing the development of the emotional competencies. These presumptions impose a significant cost on our students and on the legal profession. By marginalizing the importance of emotional competence, we ill-prepare our students to work effectively with the complex interpersonal legal problems they will encounter in the practice of law. As troubling, by dismissing emotions as irrelevant to legal thinking, we ignore that which has true meaning to students – their emotional compass and values. By doing so, we systematically strip students of what is actually meaningful to them as people and ill-prepare them to develop a professional identity that can guide them in their professional careers.
This article describes four basic domains of emotional competency that are demanded by the practice of law and reflects on some of the costs we incur by continuing to marginalize emotional competency training in the law school curriculum. The article concludes by offering suggestions for incorporating emotional competency training into the law school curriculum. These ideas range from relatively minor shifts in emphasis in doctrinal and lawyering skills classes to the addition of courses focused exclusively on developing the emotional competencies that are required skill-sets in modern legal practice.
Even as a lateral, grades matter if you want to work in BigLaw
I am a graduate of a top 10 law school working at a large New York firm. I realize the firm is not the right fit for me in terms of the type of work I would like to be doing in my practice area (which goes beyond the scope of the practice at this firm).
I graduated [last year], and had moderate grades. My question is in making a move, with the hopes to go to a more recognized firm which will produce more long term options and, presumably, more opportunities for exposure to the type of work I wish to pursue, is there a point when the grades will weigh in less (does it pay to wait a year or two) or should I be looking now?
I think you should wait a year or two but that has nothing to do with your grades (I’ll get into that in a moment).
To begin with, you are a first year associate and even in the best of times there are not scads and scads of opportunities for first year associates. If you want to have the best shot at a wide range of positions to choose among then you would be best advised to wait until you have another year or two of experience under your belt.
Of course, this is a double edged sword because then you will be classified as an associate in a specific practice area and as you have told us, you believe this particular practice area is not the right fit for you.
This is a most unfortunate position you have found yourself in at this time. Are you absolutely certain that your current employer does not offer any way for you to find happiness in your practice area? Have you spoken with your supervisor(s) about the work you are being given and why you would like to be doing something else? Of course, as a first year associate, this might be considered rather “cheeky” and improper behavior on your part but if you are unhappy then what do you have to lose? Just don’t be defensive or act as if it is your due to have “better” (in your humble opinion, as you should express it!) work.
Now about your grades issue…and yes, it is an issue. I have discussed this in many columns over many years and sadly, the discussion never varies. Your grades will never really weigh in less…waiting a year or two will not make a shred of difference when thinking about lateraling from one BigLaw firm to another if your grades do not correspond to the requirements of the firm.
The BigLaw firms have certain GPA requirements that correspond to the rankings of the law schools (doesn’t seem fair to you, right? – but historically that is the benchmark they have chosen to use). The good news here is that you have a JD from a top ten law school. Therefore the BigLaw firms will allow for a bit lower GPA on your transcript than if your JD came from a lower rated school. However, I need to emphasize the fact that the allowance is only in terms of a bit lower, especially in these days of tough job-finding times when it is a buyer’s (employer’s) market. When you write that your grades were “moderate” and if that is a substitute for “I had some Cs on my transcript,” then you need to be prepared for future problems on job searches with BigLaw firms.
The only time that your grades will take a back seat is when you can walk into a firm with an amazing and mind-blowing portable book of business in a practice area that is compatible with the firm where you are interviewing. And even then your grades may still be an issue, as hard as that might be to believe. I have had to deal with that issue with partners carrying immense books of portable business but their transcripts (which are always asked for before you are hired no matter what level you have reached), for one reason or another, are not deemed to be up the hiring firm’s standards.
So, what do you do now? You have several options but I can tell you right now that one of them should not be quitting your day job. Just remember that the job market has not really come back full force yet and at this time you are gainfully employed, if not quite happily, with a BigLaw paycheck coming in each pay period. Therefore, while continuing to work you might have that conversation with your supervisor to do a reality check on whether or not there is a way to enjoy your practice area more than you do at this time.
In the meantime, go ahead and do up a resume and start looking around. There certainly is no harm in doing so although, as I wrote in the first paragraph, I think first year associates should try to wait out the first job change for a year or two. Visit some headhunters, keep an eye out on the classified ads and start networking at bar events and with people you know. But please be careful to keep this very quiet because you absolutely do not want your current employer to have any idea at all that you are unhappy and might be on the look-out for a better opportunity. Best wishes!