Saturday, September 24, 2011
In 1888, an unknown murderer took the lives of five women in the Whitechapel District of London. The murders were bloody and ugly. Will we ever find out who the criminal was? Scotland Yard has evidence that has never been revealed to the public. The Yard has blackened out names in its files. Despite protests against this expurgation, Scotland Yard refuses to divulge the information. Its argument:
In a surreal tribunal hearing in May, which saw a senior officer give evidence from behind an opaque screen and cite Judas Iscariot to support his point, the agency argued that laying everything bare would violate its confidentiality pledge to informants, even those long dead, and undermine recruitment of collaborators in the present-day fight against terrorism and organized crime.
Some critics view the policy as an unjustified concern over privacy. Others wonder if the Yard is protecting prominent individuals of the era. Here’s the story from the LA Times.
A couple of days ago, my co-blogger, Jim Levy, mentioned the old realist saying that a judge's decision depends on what he ate for breakfast. Johathan Haidt, a psychology professor at the University of Virginia, disagrees, declaring that our political dispositions are at least partially innate (a partially inheritable personality trait). He writes,
"People vote Republican because Republicans offer "moral clarity"—a simple vision of good and evil that activates deep seated fears in much of the electorate. Democrats, in contrast, appeal to reason with their long-winded explorations of policy options for a complex world."
As I have said in the past, it is very important to have the proper behavioral model to fully understand law. Haidt and others have made significant advances in understanding human behavior, and we in law need to be familiar with their writings.
From the Lawyerist blog:
To Lead Is Not Enough
Cross examination—when you ask questions of the opposing counsel’s witness—allows leading questions. A leading question suggests a particular answer, such as, “You work at Acme Dynamite, right?” The only possible responses are “yes” or “no” (and you already know the truthful answer is “yes”).
But asking a perfect leading question is more than just making a statement and adding, “right?”, “correct?”, or, “isn’t that true?” The perfect question is built not only to get the answer you anticipate, and one that helps you persuade the jury. It also denies the witness time to think of any response other than exactly the response you are looking for. And it elicits only one or two facts, making the question and the answer easy to understand.
The perfect question also saves the powerful fact for the end. The imperfect question is diluted by prematurely revealing the powerful fact too soon.
This is a leading question:
Q1: You saw your roommate face-down on the floor when you walked in the room, right?
Same question (in essence) but closer to perfect:
Q2: You walked in the room…and saw your roommate face down on the floor. Right?
Q2 gives the witness no time to think. If he does not immediately answer in the positive, his credibility is damaged. The jury will wonder why he needs to think about the question before answering. But Q1 doesn’t create that need to immediately answer in the positive. The witness might well pause to ask himself, “well, did I see him immediately after entering the room, or a bit later…” without losing much credibility. Q1 also reduces the dramatic impact of the fact itself. Strive to present the dramatic facts in a dramatic fashion.Questions Without Beginnings
The simplest and at times most effective way to save the powerful fact for the end of the question is to ask questions with no beginnings. For example:
You left work at eleven?
Got home at eleven-twenty?
Parked in the garage?
Walked up the sidewalk?
Opened the door?
Saw your roommate face-down on the floor.
There is an inevitability to this series of questions. They allow the witness no time to think, evade, or argue. You get exactly the facts you need, in order, with no chance for even the least-sophisticated fact-finder to miss anything.
Compare this to:
So you saw your roommate face-down on the floor when you walked in the room after driving home from work, which took twenty minutes, and you got home at eleven-twenty. Correct?
Don’t laugh. Lawyers ask questions like that, every day. You are not one of those lawyers. Are you?
No further questions.
Again, tip of the hat to David Ball’s great book, Theater Tips and Strategies for Jury Trials.
Friday, September 23, 2011
Last April, the Economist reported on a study of Israeli judges on parole boards making decisions on which defendants would get parole or have their conditions of incarceration changed. Here is what they found:
The team found that, at the start of the day, the judges granted around two-thirds of the applications before them. As the hours passed, that number fell sharply (see chart), eventually reaching zero. But clemency returned after each of two daily breaks, during which the judges retired for food. The approval rate shot back up to near its original value, before falling again as the day wore on.
To explain the findings, the researchers offered two theories:
The researchers offer two hypotheses for this rise in grumpiness. One is that blood-sugar level is the crucial variable. This, though, predicts that the precise amount of time since the judge last ate will be what matters. In fact, it is the number of cases he has heard since his last break, not the number of hours he has been sitting, which best matches the data. That is consistent with a second theory, familiar from other studies, that decision making is mentally taxing and that, if forced to keep deciding things, people get tired and start looking for easy answers. In this case, the easy answer is to maintain the status quo by denying the prisoner’s request.
We recall the old saying of the Legal Realists that a judge’s decision depends on what the judge had for breakfast.
Concerning his approach to composition, Maurice Ravel wrote, "But one must spend much time in eliminating all that could be regarded as superfluous in order to realize as completely as possible the definitive clarity so much desired." A critic similarly wrote, "His works might be said to have been completed beforehand, while he meticulously unpicks them, note by note."
Ravel's approach also applies to legal writing. When we have finished a memo or a brief, we must carefully edit it (unpick it word by word) to realize the definitive clarity that helps us communicate to our readers. Nobody writes a perfect brief, but we can make that brief communicate to our readers through the editing process.
I have written some editing exercises that helps legal writers unpick their writings. You can find them here.
Yale Law Library’s Rare Book Collection has a fascinating new exhibit – “The Remarkable Run of a Political Icon: Justice as a Sign of the Law.” From the Yale Law Library Rare Books Blog:
"Using images from books printed between 1497 and 1788, the exhibit traces the roots of the iconography of Justice, a remnant of the Renaissance that remains legible today. The exhibit features eleven volumes from the Law Library's Rare Book Collection, along with four emblem books on loan from Yale's Beinecke Rare Book & Manuscript Library."
The exhibit is on display through December 16, 2011 and will also be online at the Yale Law Library Rare Books Blog. More information here.
In my opinion, yes. Me teacher, you students and the twain should not meet on certain issues. Students don't want to see behind the veil and the teacher shouldn't put students in that uncomfortable position. Some personal disclosures may be ok depending on their nature (mentioning personal struggles related to the coursework - yes; talking about personal struggles concerning relationships, medical issues or other private matters - a big "no") but a teacher can definitely go too far to the detriment of maintaining a productive learning environment. But hey, that's just, like, my opinion. If you want to read what other teachers think about the issue, check out this column from the Chronicle of Higher Ed and scroll through the comments. Or, leave your thoughts below in our comment section.
Here's a comment from the CHE article that sums up my feelings about this pretty well:
I think there's a real difference between "sharing a bit of yourself" and sharing profound emotional experiences/reactions. I frequently tell stories "on" myself to prove that students who make errors join a big club, and sometimes stories about my son that illustrate a point I am trying to make. This practice does establish a sense of connection. But I would certainly NOT tell stories about hugely important, hugely affective issues. Students are a captive audience, we're there to teach them, not to have a built-in confessional.
Thursday, September 22, 2011
Oh, those wacky Denverites. Here's a real life (no pun intended) Weekend at Bernie's scenario wherein two guys discover their friend has died and then load him into an SUV for a night on the town including stops for drinks, some Mexican food and ending with a visit to a local strip club. Since the guy was dead, I guess he didn't mind that his buddies ran up his bar tab or used his ATM card to pay for the strippers.
Both of the dead guy's "friends" have been charged with criminal abuse to a corpse. Gee, it sounds like an alright time to me though maybe the dead guy doesn't like Mexican. But "abuse?" Nah.
From the Denver Post:
But while Jarrett was present for some of the night's fun, he wasn't alive to enjoy any of it.
After a shorter, but boozier and less amusing real-life version of the film Weekend at Bernie's, Denver prosecutors have charged two men with abusing a corpse, identity theft and criminal impersonation. Court papers say they loaded Jarrett's body into a car and drove him to various stops around Denver for a night — including a bar and a restaurant — while they used his ATM card.
Both Robert Jeffrey Young, 43, and Mark Rubinson, 25, are free on bond. Neither could be reached for comment.
Neither is charged with Jarrett's death. The cause has not yet been determined as toxicology tests are still underway.
A relative of Jarrett's, who asked not to be identified while the case is pending, said it began after Jarrett invited a struggling Young, a buddy from their days together at Colorado State University, to stay with him for a few months until Young could get on his feet, she said.
Then, on Aug. 27, Young arrived around 11 p.m. at Jarrett's southeast Denver home in the 1800 block of South Forest Street and found him unresponsive. Rather than calling 911, he went to the restaurant where Rubinson works, according to court documents.
A search warrant affidavit filed in the case outlines the rest of the night:
The pair returned to Jarrett's home, loaded him into Rubinson's Lincoln Navigator and took him to Teddy T's bar and grill. Jarrett's body remained in the backseat while the pair drank on his tab.
"Young stated ... that it was obvious Jarrett was dead while all three are at Teddy T's," Denver Det. Ranjan Ford wrote in the affidavit.
They next stopped at Sam's No. 3 before dropping off Jarrett's body back at his home. But Mark Rubinson, age 25. But they kept the ATM card.
Next stop was a meal at Viva Burrito, and then they somehow withdrew $400 at Shotgun Willie's, remaining at the Glendale strip club until closing time, Ford writes. It's not clear from the documents if the pair had Jarrett's ATM code.
Around 4 a.m. authorities say the pair flagged down a Glendale police officer and told him that Jarrett might be dead back at his house.
Young next appears in court Sept. 27. Rubinson next appears Oct. 4.
"This is a bizarre and unfortunate crime," said Denver Police Department spokesman Sonny Jackson. "This isn't anything you want to have happen to a loved one. You want them treated with respect in death."
The relative said Jarrett was a father and a professional who sold real estate and owned his home in southeast Denver. His family now wants to find out how he died, and whether he could have been saved if Young had called for help rather than going to meet a friend.
"We just want to make sure they're prosecuted to the fullest extent of the law," the relative said.
Hat tip to Ryan Gill.
Talk to any professor, president, or dean at any institution of higher education about the U.S. News and World Report rankings and they will tell you they hate it. However, most feel as though not playing the game will only be harmful to their university. That being said, wouldn't it be nice if you could create your own rankings system. A system in which you decided what criteria should count and how much.
The below link does exactly that for law schools. It's a rankings system created by Jeffery E. Stake, a law professor at Indiana University School of Law in Bloomington. Stake believes the current paradigm of rankings systems produces truly disastrous results for all involved. He goes so far as to conclude that, "Rankings of schools can harm society." Stake created a system that allows you to rank law schools yourself because he believes, "society cannot protect itself the way you can protect yourself."
So have fun finding out where your law school should actually be ranked. If the results don't turn out the way you wanted, at least you did something good for society.
Of the 22 “Genius Grants” that the MacArthur Foundation awarded this year, only one went to a lawyer. The foundation awards the grants of $500,000 over five years with no strings attached.
The MacArthur Fellows Program awards unrestricted fellowships to talented individuals who have shown extraordinary originality and dedication in their creative pursuits and a marked capacity for self-direction. There are three criteria for selection of Fellows: exceptional creativity, promise for important future advances based on a track record of significant accomplishment, and potential for the fellowship to facilitate subsequent creative work.
The MacArthur Fellows Program is intended to encourage people of outstanding talent to pursue their own creative, intellectual, and professional inclinations.
Congratulations to Marie-Therese Connolly who has worked tirelessly to deal with the problem of elder abuse and mistreatment. She previously directed the Department of Justice’s Elder Justice and Nursing Home Initiative and now heads the Life Long Justice initiative of Appleseed, a nonprofit network of 17 public interest justice centers in the United States and Mexico. You can read more about her here.
A close encounter of the rare kind: a sentence that compels the reader to keep reading. I triple-dog dare you — I’ll just skip the mere dare and double-dog dare — to stop reading when you finish this opening sentence in today’s New York Times: “Now added to the list of banned performance-enhancing substances for female distance runners: men.”
Oh, to write a brief that opens so well.
Jeré Longman and Juliet Macur, For Women’s Road Records, No Men Allowed, N.Y. Times, September 22, 2011, p. B12 (national edition).
When it comes to the issue of civility in the legal system, who will guard the guardians?
Above The Law (blog), Judicial Diva Gone Wild? Chief Judge Jones Tells Judge Dennis to “Shut Up” (September 21, 2011).
When we first blogged about this article, "Examining the Impact of Off-Task Multi-tasking with Technology On Real-Time Classroom Learning" in Computers and Education (2011), it was only available behind a paywall. But now it's been released to the public gratis so click here if you'd like to read the full study.
Here's the abstract again, FYI.
The purpose of the present study was to examine the impact of multi-tasking with digital technologies while attempting to learn from real-time classroom lectures in a university setting. Four digitally-based multi-tasking activities (texting using a cell-phone, emailing, MSN messaging and Facebook) were compared to 3 control groups (paper-and-pencil note-taking, word-processing note-taking and a natural use of technology condition) over three consecutive lectures. Comparisons indicated that participants in the Facebook and MSN conditions performed more poorly than those in the paper-and-pencil use control. Follow-up analyses were required to accommodate the substantial number of students who failed to comply with the limited use of technology specified by their assigned conditions. These analyses indicated that participants who did not use any technologies in the lectures outperformed students who used some form of technology. Consistent with the cognitive bottleneck theory of attention (Welford, 1967) and contrary to popular beliefs, attempting to attend to lectures and engage digital technologies for off-task activities can have a detrimental impact on learning.
Wednesday, September 21, 2011
Here are the details:
GEORGETOWN UVIVERSITY LAW CENTER CLINICAL TEACHING FELLOWSHIPS
Georgetown University Law Center is pleased to announce the availability of up to 16 clinical graduate fellowships commencing in the summer of 2012. Georgetown Graduate Clinical Teaching Fellowships offer new and experienced attorneys the opportunity to combine study with practice in the fields of clinical legal education and public interest advocacy.
Each fellowship is associated with one of the Law Center's clinical programs, and each program varies in purpose, requirements, and duties.
All of the clinical fellowships, however, share a common goal: to provide highly motivated lawyers the chance to develop skills as teachers and legal advocates within an exciting and supportive educational environment. Graduates of Georgetown's clinical fellowship program have gone on to a wide variety of positions in law teaching and public interest law settings. Well over 100 Georgetown fellows are now teaching at law schools across the country, including five Deans of law schools and several Associate Deans or Directors of clinical programs.
Many others are leaders in the public interest arena.
Fellows enroll in a two-year program during which they are in residence at a Georgetown clinic. Fellows directly supervise J.D. students enrolled in the clinics, assist in teaching clinic seminars, and perform work on their own cases or other legal matters. Fellowships usually begin in the late summer, with an intensive orientation designed to introduce fellows to clinical teaching methods. The orientation is part of our Elements of Clinical Pedagogy course, a year-long teacher training program. Upon completing the requirements for graduation, fellows are awarded the degree of Master of Laws (Advocacy). We are currently seeking fellows to work in the following areas: appellate litigation; civil rights; communications law; criminal defense; domestic violence; environmental law; federal legislation; HIV/AIDS law, housing and community development; juvenile delinquency; trade policy and health care policy; and political asylum.
The fellowship program currently offers an annual stipend of approximately $53,000 (taxable), plus all tuition and fees in the LL.M. program. Health insurance and other benefits are also provided. As graduate students, fellows are eligible for deferment of their student loans during their two years in the fellowship. They may also be eligible for their law school=s loan repayment assistance program.
With the exception of fellows in the Center for Applied Legal Studies and the Street Law Program, all fellows must be members of the D.C. bar. Fellowship applicants who are admitted to a bar elsewhere must apply to waive into the D.C. bar upon accepting their fellowship offer. The Law Center will reimburse the expense of waiving into the D.C. bar incurred by those fellows who have already taken the bar exam elsewhere prior to accepting their fellowship offer.
Applications must be sent directly to the director of the clinic or program in which the fellowship is sought and not to the Graduate Programs Admissions Office. Application deadlines vary by fellowship.
For descriptions of each fellowship and a list of application deadlines, please visit our web site at http://www.law.georgetown.edu/clinics/fellowships.html, or request a brochure by e-mailing us at email@example.com or calling (202) 662-9100.
Some interesting findings from this recent study by the Pew Internet and American Life Project that have implications for law profs and lawyers alike (as the college-age subjects of the study eventually turn into clients). For law profs, it's interesting to note that students are probably doing more writing than at any time in history yet the kind of reflective writing skills needed to succeed in law school are in decline. That's no shocker given that most of this writing is done outside an academic context and instead consists of exchanging lots of shorthand notes.
Among the Pew findings:
- Some 83% of American adults own cell phones and three-quarters of them (73%) send and receive text messages.
- 31% of that group said they preferred texts to talking on the phone, while 53% said they preferred a voice call to a text message. Another 14% said the contact method they prefer depends on the situation.
- Heavy text users are much more likely to prefer texting to talking. Some 55% of those who exchange more than 50 messages a day say they would rather get a text than a voice call.
- Young adults are the most avid texters by a wide margin. Cell owners between the ages of 18 and 24 exchange an average of 109.5 messages on a normal day—that works out to more than 3,200 texts per month—and the typical or median cell owner in this age group sends or receives 50 messages per day (or 1500 messages per month).
- Overall, the survey found that both text messaging and phone calling on cell phones have leveled off for the adult population as a whole. Text messaging users send or receive an average of 41.5 messages on a typical day, with the median user sending or receiving 10 texts daily – both figures are largely unchanged from what we reported in 2010. Similarly, cell owners make or receive an average of 12 calls on their cells per day, which is unchanged from 2010.
Kenneth Lasson has posted an article on SSRN entitled Compelling Orthodoxy: Myth and Mystique in the Marketing of Legal Education. The article mainly concerns the effect of U.S. News rankings on legal scholarship. The core of his theory is:
"For better or worse, 'building the brand' has become not only the primary goal of a law school's strategic identity plan, but inextricably bound up by the annual rankings of U.S. News & World Report."
"The near-obsessive preoccupation with this standard by most law deans and faculties has in turn yielded perhaps the most obtrusive contemporary intervention into legitimate legal scholarship. Whether true or not, the clear perception is that the more prestigious the institution's law review and those in which its faculty publishes, the higher its position in the standings. At least one consequence is that student editors feel strongly inclined to select articles based on the the author's reputation or law-school affiliation, rather than on an article's merits. Similar pressures may drive them to choose the type of highly theoretical but impractical pieces that are held in high regard by many law professors."
Legal skills scholarship: "Legal forms as rhetorical transaction: competency in the context of information and efficiency"
By Professor Kirsten Davis (Stetson) and available at 79 UMKC L. Rev. 667 (2011). From the introduction:
Using legal forms, that is, using existing documents as a template for drafting, is an age-old lawyering practice. Courts sometimes require form use and publish forms, for example, in conjunctions with their local rules. Commercial publishers sell forms: originally in print, and now electronically, including not only traditional legal forms, designed to be models for drafting wills and contracts, but also briefs and motions filed in previous cases, stored in word-searchable databases and meant to be used as examples or models for drafting. Statutes prescribe form use or provide legislatively approved forms, such as in the context of advanced directives like living wills or health care powers of attorney. Moreover, improved technology has resulted in document assembly systems, computer-based products that use an underlying legal document to guide the user through an interview to produce “error-free” legal documents in a “fraction of the time” it previously took lawyers to produce those same documents.
The prevalence of legal forms, the increasing amount of information available to legal practitioners, the need for efficiency in legal practice, and the continuing ethical requirement of competent practice demands that the issue of competent legal form use be explored. Although one approach by those teaching students about legal drafting can be to discourage form use or discuss form use with a healthy dose of finger-wagging, the idea that lawyers will ignore forms or chose not to use them is unlikely and impracticable because, as various legal publishers point out, forms can save lawyers time and money. In addition, form use, if done well and with reliable and well-composed forms, can help a lawyer practice more efficiently and provide a lawyer with useful information to assist her in competently drafting a document. Accordingly, the legal profession needs an approach to the use of forms in practice that takes into account the need for efficiency, the increased availability of information, and the professional obligation of competence.
When a lawyer uses a form as a template or model for drafting a legal document, she is attempting to competently enter a particular legal discourse community-to communicate information in a way that is recognized by the intended audience and to effectuate a specific purpose that audience acknowledges. Rhetorical theory recognizes this as a “rhetorical situation,” a confluence of “persons, events, objects, relations, and an exigence which strongly invites utterance.” Using a form to enter a legal discourse community is a rhetorical act, an act meant to establish, maintain, and transform a particular legal community. And forms themselves are rhetorical documents-a component of a communicatively constructed transaction that includes the form itself, the form's original author, the form's current user, and a broader communicative context that includes past, present, and even future, yet-to-be-defined audiences. Once form use is recognized as rhetorical, then rhetorical theory, a theoretical perspective that seeks to explain the production and reception of texts and discourse, becomes a valuable lens through which to analyze form use and to address the problems of being efficient, managing information, and competently using forms in the legal profession.
Accordingly, this article first describes the tensions among efficiency, information overload, and competency in form use. Then, it examines the various definitions of “form,” those emanating from the vernacular, from formbook producers, from case law, and finally, from a rhetorical perspective based upon the rhetorical theory of Kenneth Burke. It next describes a rhetorical theory of form use in the legal profession based on an extension of Kenneth Burke's theory of literary form and creates a unique “rhetorical taxonomy” of legal forms. Finally, this article offers an approach for competent legal form use in practice based upon this taxonomy.
Here is an article on the subject from Canada’s University Affairs (Affairs universitaires). Most of us would find nothing new here, but based on my experience, our students probably would. The article gives detailed advice and is worth distributing. If you have additional advice, please think about adding a Comment.
I have seen numerous posts recently about the statistics of law school graduates who don’t become lawyers. For example, the Balkanization Blog has this post. There are many alternative career paths for law schools graduates (for instance, my career path as a law librarian) that should “count” as success for law school statistics. I’m not sure that “JD required” is the right benchmark anymore – maybe it should be “JD preferred” or jobs where an advanced degree is required.
Here are some useful resources for anyone interested in exploring these “alternative” legal career paths:
Deborah Arron, What Can You Do With a Law Degree?: A Lawyer’s Guide to Career Alternatives Inside, Outside & Around the Law (1999)
Susan Echaore-McDavid, Career Opportunities in Law and the Legal Industry (2007)
Gary A. Munneke & William D. Henslee, Nonlegal Careers for Lawyers (2006)
Ursula Furi-Perry, Fifty Unique Legal Paths: How to Find the Right Job (2008)
Deborah Schneider & Gary Belsky, Should You Really Be a Lawyer?: The Guide to Smart Career Choices Before, During & After Law School (2010)
Heidi McNeil Staudenmaier, ed., Changing Jobs: A Handbook for Lawyers in the New Millennium (1999)
Kimm Alayne Walton, Guerrilla Tactics for Getting the Legal Job of Your Dreams (2008)
Tuesday, September 20, 2011
From National Jurist:
Law schools have increased the number of externship opportunities by 45 percent over the past ten years, according to a study by National Jurist magazine.
The magazine, which used data from the 2002 and 2012 editions of the “Official Guide to ABA-Approved Law Schools,” will publish a list of the 20 20 law schools with the highest percent of externships to enrollment in the Fall issue of preLaw magazine.
Over the past ten years, 48 percent of law schools have made significant increases in the number of externships offered. These schools have almost tripled the number of opportunities — increasing from a combined 5,274 to 14,394 positions. Opportunities have been flat at the remaining 52 percent of law schools.
The University of Utah saw the greatest growth, increasing from 0 to 278 field placements. Michigan State grew from 18 to 352, and University of Illinois ramped up from 56 to 257.
“I am a big believer in clinical education and giving students as much experience as possible while they are in law school,” said Hiram Chodosh, dean at the University of Utah’s law school. “We have a heavy emphasis on teaching through leadership and teaching practice through experience.”
He credits the school’s rise in externships to the growth in its diverse set of clinical programs, including clinics for innocence, victims’ rights, civil rights, the environment, new ventures and appellate practice.
The 400-student law school prides itself on completing 45,000 hours of public service per year, a bulk of which is spent on its clinical programs.
Chodosh said that the school’s presence in Salt Lake City, a growing hub for technology, keeps those externship numbers up.
“It helps to be within or on the edge of a major city,” he said. “It’s a lot easier to develop rich clinical program in a community where you have population and commercial types of activity.”
University of Illinois says its externship program has skyrocketed due to both student demand and the sense that it offers something unique to students at the right time in their education.
“Most law students want to begin to work in the legal field as soon as possible,” said Jennifer Pahre, director of externships at UI, where most of its students complete an externship following their first year of law school.
Externships are popular because they allow students to try different areas of law on for size before committing to a certain field.
Continue reading here.