August 20, 2011
Law Clerks Gone Wild
Now, that’s a catchy title for an article, but as the author advises, don’t get your hopes up for anything too tantalizing. Still, in this article, Parker B. Potter collects any number of amusing anecdotes. Here’s his abstract for his article in the Seattle University Law Review:
This Article grows out of my delight in seeing fellow law clerks break through the paper curtain and onto the pages of the Federal Reporter, the Federal Supplement, or some other compendium of judicial opinions. While my fascination with law clerks as the subjects rather than the instruments of judicial writing is probably not universal, I have selected the opinions I discuss in this Article with an eye toward entertaining—and maybe even instructing, if only slightly—the clerkigentsia and the judiciary. So, with that audience in mind, I set off in search of law clerks who had gone wild enough to be written about, understanding, of course, that what I was searching for was a special kind of wildness—not the kind that sells suspense novels (or videotapes advertised on late-night television), but nonetheless, a kind of wildness that is likely to resonate with anyone who has ever been a law clerk or seen one in action.
Parker B. Potter, Jr., Law Clerks Gone Wild, 34 SEATTLE U. L. REV. 173 (2010).
August 19, 2011
Best Political Cartoons of 2011 (So Far)
Just click here. You probably will love some and hate some.
Court Decisions – Daily Summaries via Twitter
You can follow the U.S. Supreme Court, Circuit Courts of Appeals, and state courts. You can also subscribe to a blog feed for several topical practice areas.
This is a great current awareness tool to explore.
Hat tip Bob Ambrogi (@bobambrogi)
Friday Fun: Unplug, why don't cha?
Courtesy of An Associate's Mind:
New "skills" scholarship: "Disappearing act: the lack of values training in legal education -- a case for cultural competency"
This is by Professor Beverly I Moran (Vanderbilt) and is available at 38 S.U. L. Rev. 1-52 (2010) and SSRN, here. From the abstract:
A renewed movement of curriculum reform is growing within United States law schools. This new curriculum reform movement is based on two important reports – one from the American Bar Association commonly known as the MACCRATE REPORT, issued in 1992, and the second from the Carnegie Foundation for the Advancement of Teaching known as EDUCATING LAWYERS, issued in 2007. Both the MACCRATE REPORT and EDUCATING LAWYERS condemn modern legal education and offer blueprints for improving the law school curriculum. Each report recommends training law students in such values as nondiscrimination and inclusiveness based on gender, race, ethnicity, and class.
The MACCRATE REPORT’s and EDUCATING LAWYERS’ recommendations regarding gender, race, ethnicity, and class are not based on charity or social justice. Instead, both reports see cultural competency as a key part of the professional compact to serve society in exchange for a monopoly on the practice of law. Yet, despite the two reports’ emphasis on gender, race, ethnicity, and class in the law school curriculum, the new curriculum reform movement either sidesteps issues of gender, race, ethnicity, and class, or treats discussions of these topics as “add-ons” for interested students only.
By failing to integrate gender, race, ethnicity, and class into the fabric of the first-year law school classroom curriculum, this new curriculum reform movement fails both law students and the communities that practicing lawyers serve. Why law school faculties might fail to respond to the MACCRATE REPORT’s and EDUCATING LAWYERS’ concerns, and how to broaden what takes place in the first year curriculum are two subjects this article addresses.
After reviewing the history of legal education and the case method that is the target of both the MACCRATE REPORT and EDUCATING LAWYERS, the article goes on to critique six reason why law schools might not respond to a call for integrating values training into the standard first year curriculum. Two of these reasons are in direct response to objections to all values training and four are based in less direct assaults on teaching values. After showing that these six objections taken together are not strong enough to support leaving the curriculum devoid of all reference to gender, race, ethnicity, and class, the article concludes with suggestions on how to make the law school curriculum more responsive to the concerns raised in the MACCRATE REPORT and EDUCATING LAWYERS.
August 18, 2011
ABA Nixes Model Rules on the Collaborative Practice of Law
At its Toronto meeting, the ABA House of Delegates rejected a proposed set of rules to govern the collaborative practice of law. The vote was 154-298. Collaborative practice is employed predominantly in family law cases. Lawyers assist both parties in voluntarily reaching a settlement.
There were two major objections to the proposal. (1) The proposal called for state-level legislation to implement the proposal and thus moved away from the principle of lawyers and bar associations regulating themselves. (2) The proposal would permit either party to disqualify a participating lawyer on the other side for any reason or no reason.
Here is an article from US Law Week online covering this vote and other actions by the ABA House of Delegates.
Is LegalZoom engaged in the unauthorized practice of law?
Yes, a jury could conclude that according to an order dated August 2, 2011 by a Missouri federal district court which denied LegalZoom's motion for summary judgment in a class action suit alleging the company is engaged in the authorized practice of law. Online legal service providers like LegalZoom and Rocket Lawyer threaten the livelihood of small firms and solos unless courts find they are engaged in UPL. As we previously reported, Rocket Lawyer's business model tries to avoid the issue by employing lawyers who are licensed to practice in the states where it dispenses legal advice.
The Missouri court first ruled that providing blank legal forms over the internet is not a problem. No surprise there.
It is uncontroverted that Defendant LegalZoom's website performs two distinct
functions. First, the website offers blank legal forms that customers may download,
print, and fill in themselves. Plaintiffs make no claim regarding these blank forms.. Indeed, this function is analogous to the "do-it-yowself" kit in Thompson containing blank forms and general instructions regarding how those forms should be completed by the customer. Such a "do-it-yourself' kit puts the legal forms into the hands of the customers, facilitating the right to pro se representation.
Where things get dicey is when LegalZoom uses a software program, created by humans, to help customers fill-out those forms. As the court explains:
It is the second function of LegalZoom's website that goes beyond mere general instmction. LegalZoom's internet portal is not like the "do-it-yourself' divorce kit in Thompson. Rather, LegalZoom's internet portal service is based on the opposite notion: we'll do it for you.
. . . .
LegalZoom's branching computer program is created by a LegalZoom employee using Missouri law. It is that human input that creates the legal document. A computer sitting at a desk in California carrnot prepare a legal document without a human programming it to fill in the document using legal principles derived from Missouri law that are selected for the customer based on the information provided by the customer. There is little or no difference between this and a lawyer in Missouri asking a client a series of questions and then preparing a legal document based on the answer s provided and applicable Missouri law. That the Missouri lawyer may also give legal advice does not undermine the analogy because legal advice and document preparation are two different ways in which a person engages in the practice.
A snapshot of the sorry state of legal education circa August, 2011
Like many of our readers undoubtedly do, I subscribe to a lot of blogs, newsletters and email lists in an effort to keep up-to-date with the latest trends in legal practice and education. The other day I received in my in-box a copy of the e-publication "The Employment Insider" from National Jurist Magazine. I couldn't help but notice what the story titles in this issue say about the sorry state of legal education right now. A law school that's suing former students, former students who are suing law schools, a dean in trouble for allegedly blowing the whistle on how much money law schools must tithe to their universities, a fight over the accurate reporting of law grad employment stats, a law prof suspended for allegedly threatening a dean (or for exercising his free speech rights depending on who you talk to) and then there's the tragic story of one law student accused of murdering another.
Of course it's only news if it's "bad." And some of these stories are obviously not part of any larger trend but instead reflect random, unfortunate events that just happened to occur around the same time. But even so, I don't ever recall law schools being in the news so frequently because they are parties to litigation. When and why did things get so nasty? Is it merely a reflection of the overall rise of litigiousness in our society or is something else going on here instead? One could surmise that this is the result of a shift in focus towards the "business" of legal education where the high salaries of law school administrators and USNWR rankings hang in the balance.
Whatever the reason, the overall picture is pretty ugly. As the class of 2014 arrives at schools across the country over the next few weeks, we had better get our collective act together and start modeling the kind of professionalism we expect in our students. If law schools can't be paradigms of honesty, forthrightness and professional behavior, we can't hope to graduate students who embody those values as well.
Legal "skills" scholarship: "'Learning' research and legal education: a brief overview and selected bibliographical survey"
This article and bibliography is by Professor Donald Kochan (Chapman) and can be found at 40 Sw. L. Rev. 449 (2011) and at SSRN, here. From the abstract:
At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing. This research overview aims to aid the legal educator seeking to learn about learning and access tools for self-improvement. It also provides some preliminary assistance to those researchers beginning to traverse the field on the subject of “learning” and legal education, and it equally serves as a warning of the daunting task that awaits the researcher on that multifaceted subject. This overview and selected bibliography compiles selected sources collected through various searches on legal databases, library collections, and other available sources. The text serves as a guide along the way with some explanatory material to describe the fields. The compilation of these sources will serve independently as a valuable survey, bibliographic collection, and research tool for others (including educators, academic scholars, librarians, students, and lawyers).
Still Using Course Packs – Why Not Go Digital?
I am on a roll this year helping instructors move from a printed course pack to using a digital version for their courses. If you still use printed course packs, I would encourage you to visit your librarian and think about going digital. You will save money and staff time and your students will be thankful they don’t have to pay $50+ for a course pack full of materials they could retrieve from library databases for free – not to mention that most students are getting to the point where they prefer online content to printed content.
Your librarian or educational technologist can work with you to move your course pack online. They should be able to assist you in providing durable links to electronic versions of articles from the library databases. Where a license agreement doesn’t allow for durable linking, you could link to the library website/database page and provide the citation to the student. This is also building their research skills. Law students should be capable of retrieving any article by citation.
Save your institution the cost of copyright permissions, staff time in compiling course packs, and student frustration at buying content they can access online – think about moving to a digital version of your course readings this year.
The causes of grade inflation
From an article called Why We Inflate Grades from Inside Higher Ed:
The University of North Carolina at Chapel Hill made headlines recently by announcing a plan to fight grade inflation: all grades received will be contextualized on student transcripts, allowing graduate schools and potential employers to see grade distributions for each course and thus to determine just how much value to attach to those ever-prevalent As and Bs. This move is the latest in a series of attacks on what is perceived by many (rightly) to be an epidemic in higher education today, particularly among those institutions that seem to do well in the national rankings.
Student anxiety about such policies is understandable. Graduating seniors are naturally concerned about their competitiveness during difficult economic times, while juniors and seniors worry that they may be passed up for fellowships, summer programs, or other academic opportunities on account of a lowered grade-point average.
Professors, too, have their concerns about grade deflation; we not only care about our students’ successes but also about the implications of anti-inflation policies on our own careers. While institutions are increasingly taking measures to combat grade inflation, there are several key pressures faculty members face when assigning grades, and these may cause us to feel uneasy or hesitant about immediately subscribing to a strict regimen of grade deflation. These pressures in no way excuse or minimize the ethical implications of grade inflation, nor do I seek to undermine the efforts of those striving to curtail what is indeed a significant and widespread problem in higher education today. My purpose is only to suggest some of the underlying causes of this epidemic from a faculty perspective; to point out some of the pressures faculty face as they assign their students grades. These pressures, as I see it, come from three primary sources:
Pressure from students: Most professors are experienced in the familiar end-of-semester scene in which a student comes to office hours to argue for a higher grade. Such discussions often involve a student’s disputation of minutiae from past exams, papers, and assignments, all in the hope of gaining a point or two here and there and thus retroactively improving his or her grade. Such discussions can be quite time-consuming, and they often come at the busiest time of the semester, thus bringing with them the temptation to do whatever it takes to close the matter and move along. There may also be a nagging fear that minor grading errors have indeed been made and that the student should be given the benefit of the doubt. With ever-increasing college costs and the inevitable sense of student entitlement and consumerism that follow, such discussions are becoming all too common. and are not always limited to the end of the semester. Even more important, many faculty members dread and even fear the negative classroom atmosphere that often results from giving students "bad" grades (i.e.. C or below, though even a B fits this category for many), particularly in courses dependent on student discussion and participation, such as a seminar or a foreign language class.
Continue reading here if you're interested in how administators, colleagues and even ourselves contribute to the pressure to inflate grades.
August 17, 2011
Prisons of the Rich and Famous
From News of the Weird:
News of the Weird has mentioned various overseas prisons where crime kingpins serve time in relative comfort (through bribery or fear), but according to a June New York Times dispatch, Venezuela's San Antonio prison (which houses the country's drug traffickers) is in a class of its own. San Antonio's four swimming pools frequently host inmates' families and "guests," who lounge with barbecue meals and liquor. Paid "bodyguards" pass the time shucking oysters for alpha-dog-inmate Teofilo Rodriguez. DirecTV dishes serve the cells. Drug-smuggling via guards is so prevalent that Venezuelan locals actually visit the prison to buy the surplus (which they carry out because guards only "search" them upon entering). Rodriguez's enforcement is backed up by an openly displayed arsenal of guns. Said a Russian drug trafficker-inmate, "This is the strangest place I've ever been." [New York Times, 6-4-2011]
Purge redundancies from your writing
Good legal writing is clear, concise and pithy. That means purging from your sentences unnecessary words that sometimes take the form of redundancies. Here's a helpful tip on how to do that courtesy of the Lawyerist:
Choose the Best Word
The key to eliminating redundancies is to force yourself to choose the best word to convey the intended meaning instead of tossing in every word you can think of (or, when using an old document as a template, leaving the redundancies in).
Contracts in particular, tend to be riddled with redundancies. It’s very common to see language like this:
Jones assigns, grants, transfers, conveys, and alienates his interest to Smith …
Is it really necessary to provide that laundry list of words that essentially mean the same thing? Can we pick one word that will plainly communicate what Jones is doing, and that will prevent any future dispute about that? A check of your law dictionary will reveal that the definitions of the redundancies in our example refer to one another!
So, let’s pick one.
Jones conveys his interest to Smith …
Relax. It’s Okay. Really.
This might make you nervous. Redundancies, also known as tautologies, seem (at least to some) to add a formal, airtight quality to the language. They just sound lawyerly, which is one reason lawyers keep using them—they think clients view them as part of the magic pixie dust that lawyers sprinkle on contracts to prevent future problems.
But in fact, if you think about it, using a list of words that all mean pretty much the same thing is just a waste of time and paper, both of which cost money. And if the words mean almost but not exactly the same thing, you have created the potential for dispute as to meaning. This is the opposite of good legal writing, and, as I’ve noted here before, is exactly what we are paid to avoid.
Tip of the Week
Legal Research Tips II
11. You are looking for the current law on your problem. Recent cases are generally better.
12. Always shepardize. You need to make sure the law is current. If a new case came out the day before you file a brief with the court, that new case needs to be in your brief. In addition, shepardizing helps you find additional cases.
13. If you find one case on point, you should be able to use that case to find other cases. First, the case will cite to earlier cases on point. Second, you can shepardize that case to find later cases.
14. If you find one case on point in the West Reporter system, you should be able to find other cases. At the beginning of every case, there are headnotes with topic key/numbers. These topic key/numbers can lead you to the relevant topic/key numbers in the digests.
15. Periodical articles can be case finders. They can lead to law on a narrow subject. (Consider the flutist/smoking problem in the book. There was an article on smoking in the workplace that cited to a number of relevant cases.)
16. If you don’t find enough binding law in your jurisdiction, you can cite to persuasive authority to fill in the details in your analysis. Persuasive authority includes cases from other jurisdictions, encyclopedias, treatises, periodical articles, restatements, etc. In such an instance, I like to cite to two persuasive cases and C.J.S.
17. When doing statutory research, use annotated codes. These contain research aides for statutory research. In particular, they list cases with annotations that cite to a particular statute.
18. Another way to find cases that interpret statutes is to use Shepards.
19. Always make sure your research is up to date. Look in the pocket part or other updating tool.
20. Part of being a good lawyer is being a good researcher. Not only do you have to find the binding materials, but you need to find the best cases. Thorough research wins cases. Poor research leads to malpractice suits.
21. Develop cost-effective strategies while you are a student so that you are ready to work in a law office.
22. Legal research is not a mechanical task; it requires creativity. Be curious when you are doing legal research.
23. Don’t come to a conclusion too quickly. Good research takes time.
August 16, 2011
How to create a great law firm website
If you don't already have a good strategy for assessing your firm's web presence, then you need to check out this post courtesy of the Lawyerist blog:
Determine Your Market
- Create a clear understanding of your website’s users.
- Create a list of URLs of your competitors.
- Determine the strengths and weaknesses of their websites.
- Define your firm’s Unique Selling Proposition.
Set Your Goals
- Align the goals of your business with this website and make sure your client’s needs are met. Do they need to reach you urgently or are you persuading them of your expertise?
- Decide on a method for defining and measuring success.
Name Your Website
- Choose a domain name and hosting. Consider potential misspelling issues and also purchase those domain names.
- Name your pages or major sections such as Contact, Services, etc.
Design Your Website
- Use whitespace, harmonious colors, and web safe fonts
- Find compelling images that correspond with your branding
- Check the loading time of your pages
- Check the depth of your pages (how many clicks does it take to reach any page?)
- Check your browser compatibility
- Check for broken links
- Optimize your footer area with links, copyright, disclaimers, and contact info.
Include sticky content
- Create a call to action on every page, no dead ends.
- Use a writing style that suits your target audience.
- Break text into small easily read chunks separated with headings and images for easier scanning.
- Include an “about” page and testimonials to identify yourself and appear more human.
- Make your contact information easy to find.
Measure and Update
- Setup Google Analytics to monitor and measure your traffic.
- Update your site regularly, use and curate interesting content.
- Create an ongoing method of marketing and encouraging visitors to your website (writing blog posts, videos, cross promotion with other websites, social media, newsletters, etc.).
You can now track citations to your work with Google Scholar
Today we’re introducing Google Scholar Citations: a simple way for you to compute your citation metrics and track them over time.
We use a statistical model based on author names, bibliographic data, and article content to group articles likely written by the same author. You can quickly identify your articles using these groups. After you identify your articles, we collect citations to them, graph these citations over time, and compute your citation metrics. Three metrics are available: the widely used h-index, the i-10 index, which is the number of articles with at least ten citations, and the total number of citations to your articles. We compute each metric over all citations as well as over citations in articles published in the last five years. These metrics are automatically updated as we find new citations to your articles on the web.
You can enable automatic addition of your newly published articles to your profile. This would instruct the Google Scholar indexing system to update your profile as it discovers new articles that are likely yours. And you can, of course, manually update your profile by adding missing articles, fixing bibliographic errors, and merging duplicate entries.
You can also create a public profile with your articles and citation metrics (e.g., Alex Verstak, Anurag Acharya). If you make your profile public, it can appear in Google Scholar search results when someone searches for your name (e.g., Richard Feynman, Paul Dirac). This will make it easier for your colleagues worldwide to follow your work.
At present, the feature is a limited access release and Google is not accepting more users. But if you would like to participate when more slots become available, click here to get on the waiting list. And click here to check-out a screen-shot of how Google Scholar can keep track of your citations courtesy of the Chronicle of Higher Ed's popular column ProfHacker.
August 15, 2011
Is it possible to draft a brief in 140 characters or less?
In short, no. But that isn't stopping the Texas Bar Association's section on appellate practice from holding a fun Twitter "brief" contest. You've got until September 5 to enter though the story in the Texas Lawyer Blog doesn't say whether you must indeed be a Lone Star lawyer to compete. Here are the details.
Hat tip to the ABA Journal blog.
How to compete with LegalZoom
From a post called "What Lawyers Can Learn from LegalZoom" at the Lawyering Blog:
In the new, competitive environment that solos and small law firms face in the current economy, the keys to law firm survival are to expand the strategic options available by opening new client markets, reducing the cost of services, and delivering legal services in a way that distinguishes your firm from other firms in the pack. These strategic options should be mixed with more traditional approaches to differentiation such as specialization within a niche practice area.
It is time for solos and small law firms that offer personal legal services to the broad middle class to rethink their law firm business models. There are many opportunities for incorporating some of the elements of the LegalZoom business model into a more traditional law practice.
To name a few:
- Consider offering "unbundled" limited legal services at a fixed price, both on-line and off-line;
- Leverage a reputation in your local community and a physical office into an on-line brand that is both local to your community and extends throughout your state;
- Add virtual law office functionality to your web site so that your clients can have the option of interacting with you on-line;
- Figure out ways of using Internet-based technologies, such as web-enabled document automation to strip out costs from your overhead structure increasing profitability;
- Figure out how to segment the market offering lower priced services for more routine matters in order to build trust so that when a client has amore complex problems they will turn to you for assistance;
- Emphasize all of the advantages of using an attorney over a non-lawyer forms provider in your marketing materials and your elevator speech. Click here to see one such comparison.
- Use web-based technologies to respond to both prospects and clients within hours rather than days.
- Reduce the perceived risk that consumers have in retaining a lawyer by increasing transparency and structuring forms of performance guarantees.
- Adopt project management technologies to better estimate costs and fees on more complex projects, translating that data into communications that clients understand.
The current depressed economy and its affect on the broad middle class is not going to change tomorrow. It is likely that solos and small law firms, will have to adjust to new pricing and market realities in the future as competition from non-lawyer providers of legal solutions continues to increase. Large law firms serving large corporations may be immune from these developments, at least for a few years any way, but the fact that Big Law is changing relatively slowly should not mask the rapid changes happening to solos and small law firm practitioners that serve consumers and small business.
I heard a report the other day that the volume of wills and estates practice in one state declined by 50% during the past year. I predict that this trend will continue and not reverse itself, despite any improvements in the economy.
Welcome to the "new normal."
Hat tip to Meg Chandelle.
CALI Lessons – Great Learning Tool for Law Students
The Center for Computer-Assisted Legal Instruction (CALI) provides access to interactive lessons on several legal topics. These lessons can be a very useful learning/review tool for law students. The newly upgraded lesson viewer will make it easier for instructors to review, assign, and track CALI lessons. More information posted here.
The “LessonLink” tool will allow instructors to create a link to a CALI lesson in order to assign (or recommend) it to students. Instructors can track the students’ usage of the assigned lesson.
Here are some recommended CALI lessons for incoming 1Ls:
- Where Does Law Come From
- Anatomy of a Case
- How to Brief a Case
- Preparing for Your First Semester of Law School
- Learning Legal Analysis (IRAC)
Explore the lessons in all topics at http://www.cali.org/.
Senator Grassley not happy with ABA's response on law grad employment transparency
From the National Law Journal:
U.S. Sen. Charles Grassley is not satisfied with the American Bar Association's response last month to a series of questions he posed about the organization's oversight of law schools.
Grassley (R-Iowa) wrote to the organization on Aug. 8 posing additional questions about what the ABA is doing to ensure that law graduates can pay back their student loans; about the makeup of its accreditation committee; and about how the organization is responding to the declining number of job opportunities for young lawyers.
"The [ABA's] inadequate response to my letter raised additional questions that merit drilling down further," Grassley said in a press release issued on Aug. 9. "For example, the taxpayers are on the hook for any defaulted student loans. The American Bar Association seems confident that students will be able to pay back their loans, yet also acknowledges uncertain job prospects for lawyers. It's important to examine this further and try to reconcile these statements."
. . . .
Grassley is the second U.S. senator to express an interest in the ABA's law school-related activities. Sen. Barbara Boxer (D-Calif.) wrote to the ABA both in March and in May, urging the organization to increase the transparency and accuracy of law school employment and salary data.
. . . .
In his follow-up letter, Grassley questioned the makeup of the three ABA committees that play a role in law school accreditation. He noted that legal academics and university administrators account for 48%, 52% and 64% of each committee.
"Has the ABA taken any steps to make these panels more representative of the legal profession as a whole in order to minimize the appearance of a conflict of interest in favor of accrediting more law schools to create more jobs in academia?" he wrote.
Grassley asked for further explanation of how a "more restrictive accreditation standards would 'deny access to the legal profession' and would violate the law," as the ABA has said