Tuesday, October 4, 2011
As this New York Times article reports, a current scandal involves students paying a college student to take the SAT for them. The article suggests that this incident may be far from isolated. One wonders how many students rely on others to serve as stand-ins when it comes time to take the LSAT.
According to the article, in cases of cheating, the Educational Testing Service withdraws the scores. However, it does notify the high school or colleges:
Neither colleges nor high schools are ever alerted that cheating was suspected. Tom Ewing, an Educational Testing Service spokesman, said that confidentiality laws meant to protect minors prevented his company from disclosing that information. Of 2.25 million SATs taken every year, about 1,000 scores are withdrawn for misbehavior, 99 percent of which are for copying, he said.
Years ago, I spoke with an individual who had a bright friend take the SAT for him. He received a high score and a number of invitations from high ranking colleges. Then he received a call from ETS suggesting that his scores were out of whack with other information about him. He agreed to withdraw his scores. His invitations from colleges rapidly vanished. Perhaps a withdrawal is an implicit message of possible impropriety.
Monday, October 3, 2011
Among the alumni ranks of the University of Texas—Austin’s School of Law are cartoonists, service dog trainers, and wind farm employees, which might explain why it has a Non-Practicing Advisory Council within its alumni association.
“We have a significant percentage (some think maybe up to one third) of alumni in nontraditional careers,” says Tim Kubatzky, the school’s executive director of development. “There is no single path that takes them there, and many have spent at least some part of their careers in law firms or practicing solo or serving as corporate counsel.”
According to Kubatzky, the movement amongst J.D.s toward nontraditional jobs is not a new development. “The current economic situation has prompted more law school graduates to be creative in using their legal educations,” he says.
. . . .
Many law school career services departments address alternative or nontraditional careers on their websites, and a Google search for “career” and “outside of the legal profession” restricted to .edu websites yields nearly 65,000 hits. Some of those departments, like that of the Virginia Beach-based School of Law at Regent University, connect alternative careers for attorneys to the economy.
“As the legal profession has become increasingly more demanding and entry-level hiring more competitive, many law students are considering other alternatives,” according to the Regent website.
Typically, 10 percent of Yale Law School alumni work in a business setting five years after graduating, according to a 64-page Lawyers in Business guide the school publishes. And, jobs in management consulting, investment banking, and venture capital can earn young associates annuals salaries of $100,000 to $300,000, the guide states.
According to employment statistics on Drake University’s School of Law website, 16 percent of the Des Moines, Iowa, school’s alumni work in business fields nine months after graduation, and the website of the Boston University School of Law says 17 percent of its 2009 graduates working in law and business began their careers in academia and while 6 percent worked in business.
Continue reading here.
Last week we brought you a post from the Legal Practice Pro blog suggesting that the virtual law office may face problems turning a profit. Here's one response from Richard Granat, co-chair of the ABA Task Force on eLawyering called "A Rejoinder: Is the Virtual Law Firm Model Coming up Short?"
1. The ABA/LPM's eLawyering Task Force
The eLawyering Task Force , of which I am co-chair (with Marc Lauritsen), through it's web site, publications, and statements has never made the claim that delivering legal services online was the only way that law firms should connect with clients. The value of an online platform depends on the kind of law practice and the kind of clients served. Clients obviously have preferences that lawyers who serve those clients must respect.
Many firms will have a "virtual component" incorporated into a traditional practice. As Marc Lauritsen puts it, there will be:
" a shared online environment that is persistent across the life of a matter. For instance, providing interactive questionnaires on their web sites to gather information from prospects and clients, or supplying do-it-yourself document generators, checklists, or calculators.Or opening up a shared space for collaborative deliberation about a particular decision, using interactive visualizations like I 've been promoting under by 'choiceboxing" idea."
In fact, the firms that are getting the most successful results from the addition of a client portal are those that have a traditional practice and who add an interactive online component.
We know this from the analysis that we have done from observing over 200 law firms that have subscribed to our DirectLaw virtual law firm service during the past two years. We have also learned why some law firms fail to successfully implement an online strategy. We also know that some lawyers have an unrealistic expectation of what it takes to be successful as a "pure play" virtual law firm.
To read the results of our analysis download our White Paper on Virtual Law Firms: Success Factors.
Also see these blog posts on this topic: Online Legal Services: Is it Hype or a New Way of Delivering Legal Services?; Framing the Discussion About Virtual Law Firm Practice; and Defining the Virtual Law Firm .
2. Affordable Legal Service and Access to the Legal System
The work of the eLawyering Task Force has always focused on identifying ways in which lawyers can become more productive and efficient by using the Internet as platform for the delivery of legal services and ways in which clients can benefit from the use of Internet technologies in terms of the fees they pay for legal services.
President Bill Paul of the American Bar Association, who created the Task Force, had the idea that through the use of Internet technologies it would be possible to lower the cost of legal fees to make the legal system more accessible to those who cannot afford typical attorney fees.
Instead, rather than the legal profession responding to this challenge, we see the emergence of companies like LegalZoom, SmartLegalForms, CompleteCase, LegacyWriter, Nolo, and the dozens of other non-lawyer internet-based legal solution providers who are responding to the need of consumers for a ":good enough" legal result at the lowest possible cost. For millions of moderate and middle class consumers the purchasing of traditional high cost legal services delivered on a one to one basis is no longer an option. Their choice is to do the best they can with a legal solution provided by a non-lawyer provider, (which now may be a court or an online legal aid provider).
Jay [Fleischman, author of the Legal Practice Pro post referenced above] seems to imply that if a client can't afford the profession's legal fees, then so be it. Who cares?
My opinion is that it will be harder to justify the profession's monopoly on the delivering of legal services when it only serves a tiny portion of the US population.
The reality is that many of us didn't become lawyers just for the money. We want to serve people and help them with resolve their legal problems. Now there are technologies that can help us do that in a cost effective way and expand the market for legal services. We shouldn't ignore these technologies, just because we are not practicing law like the last generation of lawyers.
From USA Today:
State lawmakers across the USA are pushing a growing number of bills this year that would legalize carrying guns on college campuses, according to groups tracking the trend.
This year, at least 14 states have introduced 35 bills that would allow students and faculty to carry concealed weapons on state colleges and universities or loosen restrictions on gun bans on campuses, according to the National Conference of State Legislatures. Meanwhile, two states, Maryland and Washington, have introduced bills to prohibit guns on campuses. None of the bills has passed so far.
I hope good sense prevails. Like all schools, over the years, we have had a few students with anger problems. A few years ago, one of them ended up in jail for a violent act, fortunately not at the law school. In most law schools, students, faculty, and staff are enclosed in a single building in relatively close quarters with no quick way to exit in an emergency. A gun could do a lot of damage. The thought that an armed student could easily counter a violent student strikes me as unrealistic thinking.
The Chronicle contains an article that criticizes the absolute rule against using the passive voice. The author declares:
"But this is where modern American writing instruction has brought us. Totally unmotivated warnings against sentences that have nothing wrong with them are handed out by people who (unwittingly) often use such sentences more than the people they criticize. And the warnings are consumed by people who don’t know enough grammar to evaluate them (which is why the percentage of passives in published prose continues basically unchanged over time). The blind warning the blind about a danger that isn’t there."
I basically agree. The rule I teach my students is that a writer should always use the active voice unless the writer has a specific reason to use passive. For example, the passive is useful for hiding the actor, which is often useful in persuasive writing.
The more basic point is that writers should never just blindly apply the rules, but they should always consider how that rule works in context. For example, I tell my students that they should always think about every word they write to make sure that every word has the meaning and emotion intended.
For more on the active and passive voices, see my exercises at http://ssrn.com/abstract=1715702 .
This term will bring interesting cases for law students to watch and discuss. A preview of the term “which features a big three lineup of potential cases – the Obama health law, gay marriage and the Arizona immigration law” can be found in the Wall Street Journal online here.
The SCOTUSblog invites the community to contribute to the discussion. You can participate by joining the moderated community and are encouraged to contribute to a “vibrant, civil debate.” More information, including how to set up an account, here.
If you want to learn more about the history of the Supreme Court building and features, take a look at this great virtual tour of the Supreme Court building online through the Oyez project at Chicago-Kent College of Law. (Hat tip Don Zhou for the link)
Sunday, October 2, 2011
From Professor Michael Hunter Schwartz:
Spring 2012 Conference:
Technology in and Beyond the Classroom
Hosted by North Carolina Central University School of Law
March 3, 2012
This conference will focus on the use of technology to enhance teaching and learning in and out of the classroom. When legal educators talk about technology in law school, the discussion often addresses issues such as law students’ use of laptop computers in the classroom, the use of Internet-based course management tools (such as TWEN or Blackboard), and the use of technology to display classroom materials (such as PowerPoint presentations and video clips). This conference will take the discussion beyond these traditional topics. Conference presenters and participants will explore how advanced use of technology can:
- Enhance student learning in the traditional law school classroom,
- Maximize distance learning opportunities consistent with ABA rules, and
- Expand the ability of clinical and pro bono programs to deliver legal services.
By the end of the conference, participants will leave with concrete ideas to bring back to their students, colleagues, and institutions.
Benefits to Participants
This conference is for anyone interested in technological innovation in legal education, including
- Academic Support
- Practice Skills
- Law school administrators and staff
- Clinical program directors
- Directors and Coordinators of Graduate Programs
- Externship Directors
- Interdisciplinary Center Directors/Coordinators
- IT professionals
- Pro Bono and Social Justice Directors/ Coordinators
- Study Abroad Program Coordinators
During the conference, participants will
- Encounter new ideas about selecting and using technology to improve teaching and learning in and out of the classroom;
- Experience a variety of types of educational technology; and
- Have opportunities to meet and work with other creative legal educators who want to enhance their effective use of educational technology.
Here's a post from Slate on an issue we've been following for a while (here, here and here). In my opinion, there's no doubt software will replace lawyers for many routine tasks (heck, it's already happened). Software can do some tasks better and cheaper than the average junior associate. Plus, lawyer-bots don't take vacations, don't steal clients and they'll likely make your malpractice insurance carrier much happier. But see this.
Imagine you've been served with a legal complaint. Your startup company makes a very popular widget, and your chief rival, MicroWidget International, is suing for patent infringement. If MicroWidget prevails, you could be out tens of millions of dollars.
You go to your in-house lawyer, who recommends that your company hire a patent expert at Moneybags & Moneybags, LLP. The next day, a brigade of Moneybags lawyers marches into your firm and outlines your options. Defending the MicroWidget case will be costly—in addition to the thousands of billable hours for the attorneys assigned to your case, you'll have to hire expert witnesses and jury-selection specialists, and pay for travel and court filing fees. The total legal bill will be about $5 million, give or take. But Mr. Moneybags, Esq., the firm's ancient senior partner, assures you it will be money well spent—he's worked on many of these cases, he says with a wink, and he's got a gut feeling you'll win this one.There's no easy answer. The legal industry is one of the few remaining outposts of the corporate world whose operations are dictated mainly by human experience. Basic questions that anyone would want to know before committing to a million-dollar case—How likely is it that I'll win? How good are my lawyers? Should I settle?—can't be answered with certainty. "There's a culture in the law around expertise," says Daniel Katz, an assistant professor at the Michigan State University College of Law who is among the vanguard of legal researchers working to bring empiricism and artificial intelligence into law. "There's a lot of human intuition, and people tend to think that whatever legal knowledge they have is uniquely human, and not subjectable to data and computers and automation."
Your other option is to settle with MicroWidget. You could pay a licensing fee of $10 million, which would be painful, but not fatal, to your firm—and it would allow you to go on with your business. What do you do?
Katz is working on something he calls "quantitative legal prediction." Thousands of patent cases are filed every year in the United States. There's a good chance, then, that MicroWidget's case against you shares some similarities with a bunch of those other cases. What if you could analyze the key features of MicroWidget's claim, and then see how thousands of comparable cases fared? "Lawyers will be able to say to their clients, 'Here's what we think your chances are—and based on 10,000 cases that are just like yours, here's what the computer thinks your chances are,' " Katz explains.
From the Disciplinary Board of the Supreme Court of Pennsylvania:
Committees of the American Bar Association have issued a number of documents suggesting new directions and analyzing current ethical issues.
The ABA’s Commission on Ethics 20/20 has issued four proposals for comment, three of them affecting cross-border practice. The proposals include:
- Amending the Model Rule for Admission by Motion to allow lawyers in one U.S. jurisdiction to seek admission by motion in another jurisdiction if they have been engaged in the active practice of law in the first jurisdiction for three of the prior seven years, rather than five of the last seven as the rule currently requires.
- Amending Rule 5.5 of the Model Rules of Professional Conduct to clarify "systematic and continuous presence" of a legal office such as would allow a lawyer admitted in another jurisdiction to practice in a state; and
- Adding a comment to Model Rule 1.7 which would provide for agreements between lawyer and client as to which law would be applied in a cross-border situation.
The Commission is also proposing an amendment to Model Rule 1.6(b) which would allow limited disclosure of confidential information by a lawyer who has changed firms where necessary to prevent conflicts of interest from arising.
The Committee is seeking comments by November 30, 2011. Even if adopted by the ABA, the amendments would not affect the Rules of Professional Conduct in effect in Pennsylvania and other states unless adopted by the Supreme Courts of those states.
The full announcement includes actions on new firm conflicts, clients using work computers, and fee agreements.
From the always informative Lawyerist blog:
No matter how many motions you file, or how well prepared you are during trial, objectionable testimony will come up. This testimony could be prejudicial to your client, especially in front of a jury, so it is imperative that you know how to properly object during a trial. I see attorneys flounder with objection arguments on a regular basis, which makes them look weak in front of a judge or jury, even if their objection is spot on.
When inadmissible testimony comes out, or is about to come out, you should object. That sentence, in theory, sounds very simple. Yet I can’t go more than a week or two without seeing an attorney sit at counsel table and just start making an argument to exclude the evidence. If you’re going to object, you should stand, say “Objection your honor” and give the basis for your objection. While some courtrooms allow lawyers to sit while examining witnesses, you should never sit when addressing the court. That’s what an objection is, a statement to the court. This means the objection should be directed at the judge, and never opposing counsel.
When an objection is appropriate, you have to do it quickly. In a jury trial, a failure to object in time could mean that the cat is out of the bag. Although most appellate courts believe in the curative powers of a judge’s instructions, I always say it’s better to be safe than sorry. That means you have to realize an objection is necessary, rise, and state the objection all within one or two seconds. It’s easy to stand up and make a very tepid objection because you aren’t sure if you’re correct. Citing the proper rule isn’t the whole ball game here. When you stand to make your objection, say it with as much confidence as you can muster. Both the judge and jury will be more likely to agree with you if you sound like you know what you’re talking about. In other words, when necessary: fake it till you make it.
The substance of your objection hinges on the setting. In an administrative hearing or bench trial, you should stand, say “Objection your honor” and follow up with a brief explanation. For example:
Attorney 1: Then what did the eye witness say?
Witness: Well, he told us…
Attorney 2: Objection your honor, the witness is about to testify to hearsay. It’s an eye witness and not a party opponent, and there’s been no foundation for any exceptions.
That’s it. Less than thirty words and this attorney’s objection is properly preserved on the record, and she has given the judge enough explanation to work with. Now the judge can either rule immediately or let opposing counsel argue the objection. At that point, you have to rely on your knowledge of the rules of evidence, along with the judge’s, to flesh out the objection.
In a jury setting you need to take a slightly different approach. It is wholly inappropriate to make an extended objection argument in front of the jury. On television, we often see attorneys make long-winded objections and in doing so, present inadmissible evidence to the jury. That kind of improper behavior in the courtroom can quickly hurt your reputation, not to mention your client’s case. During a jury trial, your objections need to be more succinct and not reveal any facts or argue any law. To make an objection, just stand and say “Objection your honor, hearsay.” The Federal Rules of Evidence require that you place the reasons for your objection on the record. Anything more than the grounds for your objection is both unnecessary and improper. Once you get out the grounds for the objection, ask to approach and have all the legal argument conducted outside the hearing of the jury.
The Other Side
Of course, if one side is objecting to testimony, the other side is attempting to admit the testimony. This means you have to be ready to respond to objections when they come up. You should be able to predict a lot of the objections based on the questions you will ask and the witness preparation you’ve done. Have responses ready, or be prepared to move on to another question.
When responding to an objection, you should sound just as confident as the objecting attorney. Also, if the objecting attorney does not ask to approach, you should do that in a jury trial. Finally, always have a backup final question. Nothing looks worse than sitting down from an examination on a sustained question. It looks like opposing counsel got you to stop asking questions altogether. Sure, you may have missed out on your great final zinger, but have something else up your sleeve.