Saturday, October 22, 2011
Alternative Dispute Resolution has become a significant method of resolving legal disputes. Because our students will increasingly be working in these nonjudicial fora,they should have at least a basic acquaintance with the practical aspects of arbitration. In a brief article, Miami attorney Jay M. Levy offers helpful advice. As is always the case, a successful strategy requires making planning decisions well before the formal arbitration begins. Here is the link.
Below one of my co-bloggers has posted about the new issue of the JALWD Journal. I would like to focus on one article Linguistic Hooks: Overcoming Adverse Cognitive Stock Structures in Statutory Interpretation by Michael Smith because it combines two of my research interests-- cognitive science and statutory interpretation. This article shows a great depth of understanding of both fields, and it demonstrates that scholarship by legal writing professors can be just as innovative as that by doctrinal scholars. In addition, while it does contain complex analysis, it is of significant practical value because it shows lawyers how to argue difficult statutory issues.
Many issues of statutory interpretation arise due to a cognitive collision between the facts of the case at hand and the mental stock structure implicated by a word or phrase in the applicable statute. Consider, for example, a statute that regulates "chairs". For most people, the stock structure for "chair" would be a mental image of an object with four legs and a backrest designed for one person to sit on. Would this statute apply to benches? How about stools? Or couches? Each of these words conjures up its own stock structure that is close to, yet inconsistent with, the stock structure for "chair". As this simple example illustrates, then, many issues of statutory interpretation arise based on a collision of seemingly incompatible cognitive images. Statutory issues such as these are a consequence of cognitive linguistics: Based on its typical linguistic usage in American English, the word at issue in the statute (like "chair") conjures up a specific cognitive stock structure that is incompatible with the item or concept represented by the current case (like a couch).
These types of statutory issues present unique problems for legal advocates. Generally, legal advocates attempting to resolve issues of statutory ambiguity turn directly to standard tools of statutory interpretation such as legislative history, canons of statutory construction, persuasive judicial precedent, and policy. However, in issues such as these, the statute seems to unambiguously exclude the item or concept under analysis, and courts generally prohibit the use of extrinsic adds of statutory interpretation when the statute is unambiguous on its face. Thus, a legal advocate in these situations faces a threshold linguistic hurdle. The advocate, as an initial matter, must offer a linguistic explanation B a linguistic hook, if you will B that plausibly reconciles the instinctive cognitive collision presented by the statutory issue at hand. Only after the statutory issue is at least plausibly resolved from a linguistic (and cognitive) standpoint can the advocate turn to the other, more conventional, tools of statutory argument.
This article explores some relatively untapped and underappreciated advocacy techniques for overcoming adverse stock structures implicated by statutory language. Specifically, this article explores strategies that enable a legal advocate to evoke B consciously and with design B an alternative and more favorable stock structure that is compatible with both the statutory language and the clients facts. As we will see, these strategies provide advocates with the very linguistic hook that is needed to open the issue up for other, more conventional, forms of statutory analysis. he ultimate goal of this article is to provide legal advocates with potentially powerful new advocacy strategies in issues of statutory interpretation.
Part I of this article explains the theory underlying cognitive stock structures and identifies two distinct forms of statutory ambiguity that stem from stock structures implicated by statutory language. As we will see, only one of these forms of ambiguity presents advocates with the type of linguistic hurdle discussed here. Part II then explores specific strategies by which a legal advocate can attempt to overcome this linguistic hurdle. Part III wraps up the discussion by explaining the relevance and usefulness of these techniques in the general context of statutory advocacy.
This self published book by Ellis Morgan might be a good reference book for law students and lawyers alike.
From the publisher's abstract:
Would you like to be more confident about language, grammar, punctuation and spelling? Do you want to write better emails, letters, leaflets and reports to improve sales, customer satisfaction and internal communications? Writing at Work will boost your writing confidence and get you and your business communicating more successfully. Presented in bite-sized chunks with practical examples, Writing at Work is an A to Z of everything you need to know to polish up your writing skills. There's also a useful List of Everyday Words that will help you banish gobbledegook forever. Plus you'll learn how to: • Find the right tone of voice for your audience. • Get rid of tautologies, jargon and meaningless phrases. • Tackle the important task of proof reading. • Make your documents more accessible. Writing at Work will become the reference handbook you reach for whenever you need help with your writing.
Friday, October 21, 2011
I have just received volume 8 of Legal Communication & Rhetoric: JALWD, the journal of the Association of Legal Writing Directors. The articles look spectacular. Here is the table of contents:
articles & essays
The Power of Rigor: James Madison as a Persuasive Writer
Thomas C. Berg, Julie A. Oseid & Joseph A. Orrino
The Legal Writer's Checklist Manifesto: Book Review
Jennifer Murphy Romig
Think (and Practice) like a Lawyer: Legal Research for the New Millennials
Aliza B. Kaplan & Kathleen Darvil
Judicial Clerkships: A Bibliography
Mary Dunnewold, Beth Honetschlager, & Brenda Tofte
To access the articles electronically, press Control and click on the link.
Thursday, October 20, 2011
These recommendations have been culled from several expert commentators and published by the blog Attorney@work.
- Calvetica is a calendar program that makes it easy to check availability when on the go with zero setup. It allows the user to easily jump to a specific month or day next year with two clicks.
- Noteshelf allows users to create multiple notebooks based on topic or client. It can customize the style of the notebook and the “paper” inside it. It can also save the notebook to PDF and you can email to yourself or others.
- GoodReader is great for reading pleadings, highlighting depositions, reviewing exhibits, and organizing documents.
- Auditorium Notes for iPad is an audio record app for use in note-taking.
- TelePrompt+, as the name implies, is a TelePrompter app that works well for presentations and those speeches you never had enough time to prepare for.
- QuickOffice is a great app for reviewing and editing documents.
For several more suggests, click here.
We've blogged before about Rocket Lawyer (here and here) which, along with LegalZoom, is one of the major players in the online legal services provider market. Now Ken Adams from the Koncise Drafter tries the service out for himself by ordering a confidentiality agreement. His detailed review is below. Suffice it to say that Mr. Adams (who sells "customizable" contracts through his website too) finds Rocket Lawyer's form contract lacking.
I took advantage of Rocket Lawyer’s week-long free-trial period to create a confidentiality agreement. I chose their confidentiality agreement because I’m intimately familiar with the issues, thanks to my work on Koncision’s confidentiality-agreement template. I think it’s fair to assume that it’s representative of their offerings.
I considered different aspects of the process, in each case giving Rocket Lawyer a score. Rather than grading against some notion of perfection, I graded Rocket Lawyer against Koncision’s template, to which I attributed a score of 100. (That’s not to suggest, by any means, that Koncision is perfect.)
Here’s my report card on Rocket Lawyer’s confidentiality agreement:
Customization. Score: 25
You’re asked around twenty questions regarding what you want to include. Some questions require you to plug in factual information. Others invite you to select from among various offered alternatives. Others you answer “Yes” or “No.”
That might seem like a respectable number of questions, but a handful of them invite the response, “Duh—yeah!” For example:
- “Is [the recipient] restricted to only using the Confidential Information for the purposes described in this Agreement?”
- “Will the terms of this Agreement also apply to [the recipient’s] employees?”
- “Will [the disclosing party] be entitled to pursue remedies against [the recipient] if it appears that [the recipient] has disclosed Confidential Information in violation of this Agreement?”
And the questions skate over countless issues that a disclosing party might want to address. For example, no questions address for how long the disclosing party will be disclosing information to the recipient. And no questions consider for how long the information is to be kept confidential. Instead, the output document doesn’t put a limit on the obligation to keep the information confidential. That’s a legitimate approach, but I’d want to give the user a choice and explain the implications of the alternatives.
Hofstra University School of Law, located in Hempstead, NY, is seeking to hire a Clinical Professor to teach and supervise a clinic that will focus on investor rights, consumer rights, or a related area. The Hofstra Law Clinic was established in 1973 and is a vibrant and integral part of the Law School. The Law School has 6 additional clinics, including Political Asylum, Community and Economic Development, Criminal Justice, Law Reform Advocacy, Child Advocacy, and Mediation.
The successful applicant will offer a vision for the future direction of an investor and/or consumer rights clinic that includes an integration of direct advocacy, law reform, community outreach, and public policy work in areas related to protecting the rights of low-income investors and/or consumers. The Clinical Professor will be responsible for all aspects of running the Clinic, including: course planning and teaching, client selection, supervision and mentoring of law students in representing clients, clinic administration, and community education and outreach. If so desired, the Clinical Professor can also teach non-clinical course offerings.
Hofstra’s Clinical Professors are subject to the following standards of review and promotion: an initial contract of two years, two additional two-year reappointments, followed by five-year long-term contracts, assuming all standards of review have been satisfied. Clinical Professors are eligible to serve on all faculty governance committees, attend faculty meetings, and may vote on all matters except appointments, reappointments, and promotion. Our Clinical Faculty benefit from generous support for scholarship and pedagogical innovation, as well as being part of an active and engaged NYC-area clinical community. All Clinical Professors are warmly encouraged to participate in faculty workshops, conferences, and other aspects of academic life at the Law School, including the bi-monthly meetings of an energetic and supportive clinical faculty.
The Law School seeks an applicant with demonstrated experience in an area related to investor and/or consumer rights. Clinical teaching experience is highly desirable. New York bar membership or eligibility and willingness to seek admission on motion is required. Salary and title are commensurate with experience.
Hofstra University is an equal opportunity employer, committed to fostering diversity in its faculty, administrative staff and student body, and encourages applications from the entire spectrum of a diverse community.
Interested applicants may send via email only a cover letter, resume, writing sample, and references to the attention of the secretary to the hiring committee, Ryan.Duck@Hofstra.edu. The deadline for submission is November 15, 2011.
From the Legal Intelligencer:
A man indicted for allegedly making violent threats on a social networking site toward his estranged wife, law enforcement officers, his former co-workers and to an unspecified kindergarten class was not committing a crime because his words were more like the lyrics of an artist who raps an intent to commit violent acts, his defense attorney argued in federal court Monday.
His lawyer argued that these postings were “rhyme settings” that enjoyed First Amendment protection.
The federal district judge evidently was not persuaded and declined to dismiss the charges. The jury will have to decide if the threats were “true threats” that violated a federal statute outlawing “any communication [in interstate or foreign commerce] containing any threat . . .. to injure the person of another.”
Wednesday, October 19, 2011
From Attorney at Work, here are the lessons:
1. Whether in your daily practice or in trial, never, ever, ever use technology you do not completely understand. I don’t just mean that you “get how it works.” You need to know why it may not work and how to fix it—instantly.
2. Test and re-test the technology. Repeat this step 100 times. Use a law clerk if you have to. When a live television broadcast starts, the producers don’t just plug in the cameras and see what happens. Prepare.
3. If you were over the age of 35 when the technology was invented, always consult with someone under the age of 25.
But the really interesting and very entertaining lessons are embedded in Bill Melater’s story that goes along with these lessons. Here it is.
This story from the ABA Journal blog says that 200 law firms surveyed by the consulting firm Robert Half Legal complained that they are having difficulty finding experienced attorneys in certain hot practice areas (free download of the report here).
Legal hiring is on the increase in both law firms and corporations, but lawyers who are benefiting are those with experience in hot practice areas, according to a new report by Robert Half Legal.
The search for attorneys with the right experience has led to a tight job market and complaints by some hiring lawyers, according to the report and a Robert Half Legal survey of 200 lawyers working at the nation’s largest law firms and corporations. Forty-nine percent of the lawyers polled said it is challenging for their law firms or companies to find skilled legal professionals today.
Law firms are expanding lucrative practice groups in areas such as litigation, health care, bankruptcy and corporate transactions, according to the report (PDF), the "Robert Half Legal 2012 Salary Guide." Firms are hiring experienced associates, particularly those in high-demand practice areas such as litigation, employment, real estate and corporate law. Experienced paralegals with litigation and e-discovery backgrounds are also in big demand.
Corporations, meanwhile, are expanding their in-house legal teams and hiring more paralegals. Companies are also hiring more compliance managers, contract managers and contract administrators, and are looking at candidates for some of these positions with law degrees.
You can continue reading here.
I just learned of the Girl's Guide blog and thought I'd share it with our readers. Written by a Columbia Law '06 grad, the author wants to help other women avoid some of the stress of law school and beyond by offering tips on everything from filling out the application, surviving the first year, applying for judicial clerkships and conducting a successful job search. A recent post concerns "the 5 myths of law school" which are linked below for your convenience and reading pleasure.
- Lawyers make a lot of money.
- Student loan debt is good debt.
- Law school gives you three more years to decide what to do with your life.
- Life as a lawyer is exciting and intellectually challenging.
- Getting a law degree opens lots of doors.
My current awareness alerts just brought a very useful resource to my attention and it’s one worth sharing.
Mary Dunnewold, Beth Honetschlager & Brenda Tofte, Judicial Clerkships: A Bibliography, Legal Communication & Rhetoric: JALWD (Fall 2011/Volume 8) – available on SSRN here.
Here is the abstract posted on SSRN:
"A wide variety of materials about judicial clerkships is available in bar journals, law reviews, and books, and on relevant web sites. These materials are particularly useful to academic professionals planning judicial clerkship classes or externship experiences, law students contemplating judicial clerkship positions and wanting to know more, and the approximately 3000 recent law school graduates preparing to enter judicial clerkships each year. This bibliography brings together the more recent of these materials and categorizes them by topic, including materials on judicial clerk selection, the judicial clerk’s role, various kinds of judicial writing, academic clerkship classes, and ethics."
This is a useful resource for your students and Career Services office.
Tuesday, October 18, 2011
Here's another article that popped-up in my daily Google Scholar feed. "Use of Laptops in the Classroom: Research and Best Practices" by Professor Erping Zhu et al., and published by the Center for Research on Learning and Teaching at the University of Michigan. From the introduction:
Across campus, laptops and other mobile devices, such as iPads and smartphones, are appearing in greater numbers in the classroom. In a CTools survey of 1,415 U-M students conducted in Winter 2010, over 50% of respondents reported bringing their laptops to class at least once per week (USE Lab, Digital Media Commons, 2010). Many faculty see this trend as an opportunity for more innovative teaching, and they are exploring ways to leverage this technology to increase student engagement during lecture. However, other faculty worry about potential distractions that mobile devices could introduce into their classrooms. In this Occasional Paper, we present the results of a CRLT research study that examined student perceptions of how laptops affect attentiveness, engagement, and learning, and we suggest guidelines for using laptops and other mobile devices effectively in the classroom. As we discuss below, laptops can be an effective tool for promoting student learning if faculty plan carefully for how and when they will ask students to use their laptops, rather than simply allowing students to bring them to class.
Continue reading here.
New York plan would provide training to new law grads by helping the poor in exchange for reduction in loan debt
A New York state judiciary task force is considering putting unemployed lawyers to work helping the poor in exchange for a reduction in their law school loan debt. But others worry that without proper supervision, those unemployed lawyers may not always provide competent representation. And as a practical matter, some doubt that the state judiciary will have any success pushing a bill through the legislature that gives special debt relief to new law grads when other members of the middle-class are losing their homes.
From the New York Law Journal:
New attorneys who volunteer to represent low-income New Yorkers would receive state money to help them repay their student loans under a proposal being considered by court administrators.
The idea is being weighed by court administrators as they formulate the Judiciary's budget for the 2012-2013 fiscal year, which is due by Dec. 1, Chief Judge Jonathan Lippman said in an interview.
The plan was advanced by Justice Michael V. Coccoma, the chief administrative judge for courts outside of New York City, during a hearing this month by Judge Lippman and his task force on civil legal services into ways to improve funding for poor people facing foreclosure, eviction, the loss of health care and other civil matters.
The task force has estimated that, at best, only one in five poor New Yorkers in need of civil legal services receive representation.
"I think we have to think out of the box to create ways to foster civil legal services," Judge Lippman said. A loan forgiveness program "is certainly worth taking a look at."
Justice Coccoma argued during an Oct. 3 hearing that the poor economy, the slack job market for law school graduates and the heavy debt load many law students take on could offer a ready pool of lawyers willing to represent indigent clients in civil matters as they work off portions of their loans.
"When I heard of an increasing number of recent law school graduates unable to find jobs, I asked myself, why could we not develop a funding stream, a steady funding stream, of programs which would provide an opportunity for these attorneys, who are eager to put their skills to work in public service programs to provide legal services to the poor?" Justice Coccoma testified. "Perhaps this task force could recommend that in exchange for a two- or three-year commitment to such a program, those lawyers would receive a reduction in their student loans."
He said the hands-on experience could be invaluable to new practitioners.
. . . .
Lawrence Raful, dean of Touro Law Center on Long Island, said a loan repayment program for law students is a "terrific" idea. But he said it would have to be structured to provide new graduates with careful monitoring and mentoring.
"My concern is competency, mentoring, apprenticing, whatever you want to call it," Mr. Raful said. "I just don't know how you set it up. Doctors have the four years of medical school and four years of residency, so they are much more prepared to go out to western New York to provide exams and flu shots and the other basics. But how do you supervise these [civil legal services] people?"
Similarly, the chairman of the New York State Bar Association's Young Lawyer's Section, James R. Barnes of Burke & Casserly in Albany, agreed that there would have to be close oversight of participants.
"Are they going to be completely on their own?" Mr. Barnes said in an interview. "I know that many young lawyers indicate a hesitancy at going out on their own practice. But if it is part of a larger practice you might find enough people who are willing to make that sort of commitment. I would assume the pay wouldn't be extensive, but you add it to the loan forgiveness and experience, I think you have a viable product."
Continue reading here.
Any casual Supreme Court watcher knows that the Court’s docket is much shorter than it used to be. Is the Court intentionally limiting its docket? Justices Scalia and Breyer say no.
While the justices “don't prowl about looking for cases,” they also do not set a limit on the number of cases they decide to accept for review each term, Scalia said.
In response to an inquiry from Committee Chairman Patrick Leahy (D-Vt.) about why the Supreme Court is deciding fewer cases than it used to, both justices strenuously denied any effort by the court to take on fewer cases.
Scalia explained that a fairly large part of the justices' jobs is to decide which cases to decide. There have to be some rules and as a general rule, there needs to be a circuit conflict, he said. “There has to be a significant issue on which lower courts are undecided.”
“Nobody is making an effort to take less cases,” Breyer added.
At a hearing before the Senate Judiciary Committee, Justices Breyer and Scalia also discussed ethics for justices, separation of powers, the death penalty, and cameras in the court room. Here is coverage of the hearing from U.S. Law Week online.
Back in the late 80s and early 90s, there was a great deal of talk concerning the culture wars between the postmodernists on the left and the religious fundamentalists on the right. Of course, these wars still exist today with red states and blue states, MSNBC and Fox. These culture wars flowed into all areas of society, and they have had a profound effect on law.
I wonder, however, whether this view of the culture wars is simplistic. Isn’t there a third side to the culture wars–a center that disagrees with much of what both the right and left are saying? Hasn’t the center too often been grouped with the left or the right?
I view this center group as being pragmatic (pragmatic in the traditional sense of the word, not the postmodern sense) traditionalists. They believe that there are enduring values, but that values do change some over time as society, technology, and the environment change. They believe in science as a way to help mankind better itself, but they realize that science can be used for evil purposes. They believe in government, but they realize that too much government can be as bad as anarchy. They believe in capitalism, but they realize that cheaters must be punished. They believe in fairness for all, but they realize that identity politics and collectivism are divisive.
For example, there are at least three views concerning evolution. Both the fundamentalist right and the postmodernist left reject evolution or at least its implications, based on faith, not facts. The right rejects evolution because it contradicts a strict reading of the bible. The left rejects the implications of Darwinism because it contradicts the left's notion of social constructionism–that an individual is a blank slate whose character is totally malleable. In other words, it rejects evolution’s implications because those implications include the finding that behavior is partially genetic. (Postmodernists often reject science if it interferes with their beliefs, just like fundamentalists do.). The center believes in science, so it believes in evolution and its implications, although it wants to see rigorous scientific methods backing up the conclusions. These implications include the fact that human behavior is both genetic and cultural. Knowing that human behavior is both nature and nurture helps us solve societies’ problems better than if we have a view of human behavior based on faith or faulty beliefs.
I could give addition examples, but these most await an article. The key point is that we should stop looking at the culture wars from a simplistic point of view, as if everything were black and white.
I have often stated that the most innovative legal education scholarship comes from legal writing teachers. The following article helps prove this.
Norm-Referenced Grading in the Age of Carnegie: Why Criteria-Referenced Grading is More Consistent With Current Trends in Legal Education and How Legal Writing Can Lead the Way by Leslie Rose
Abstract: This article analyzes the use of mandatory grading curves (norm-referenced grading) in light of recent trends in legal education and argues that legal writing is a good place to introduce a better alternative - criteria-referenced grading, in which students are evaluated based on objective standards of competency, rather than in comparison to other students.
Two recent reports, Best Practices for Legal Education: A Vision and A Road Map, published by the Clinical Legal Education Association, and Educating Lawyers: Preparation for the Profession of Law, published by the Carnegie Foundation for the Advancement of Teaching, recommend that schools set explicit learning objectives for their students and that they do a better job of assessing whether those objectives have been met. Law schools are beginning to respond to these reports by revising their curricula and preparing for anticipated changes in the ABA standards for law school accreditation that will require a greater focus on assessment methods. Another significant trend, the humanizing legal education movement, has sounded an alarm about the anxiety and depression experienced by law students, which begins in the competitive pressure-cooker that is the first year of law school. The authors of Best Practices, Educating Lawyers, and the literature on assessment and humanizing law school are unanimous in their criticism of norm-referenced grading. They favor criteria-referenced grading because such systems more reliably communicate whether students are proficient in the skills required of competent lawyers and they foster a better learning environment.
This article reviews the current state of grading in law school, summarizes the recent trends in legal education, lays out the case against norm-referenced grading, and responds to anticipated arguments against a change in grading policies. It demonstrates that legal writing is a good course in which to begin a switch to criteria-referenced grading because of the small class size, the frequent feedback, the use of rubrics, and the mastery nature of the course. Legal writing can thus provide a useful model for other law school courses during this period of change in legal education.
The Lawerist has a great post today about the importance of learning “eLawyering”.
“Virtual law practice, cloud computing, online practice management: these are aspects of what’s known as “elawyering.” Elawyering is lawyering using web-based technology. While the use of technology in the practice of law is nothing new, the speed of recent advances in online communication, storage, and transactions of all kinds has created a potentially confusing environment for new lawyers. Law students should be first in line to learn how online technologies can effectively deliver legal services.”
The post also lists these resources for anyone interested in learning more about elawyering:
Monday, October 17, 2011
The name of the article is "Classroom Experiences: Disallowing Laptops during Lectures Improves Student Performance" by Leonidas Deligiannidis, Professor of Computer Sciences, Wentworth Institute of Technology. It showed up in my daily Google scholar feed and appears to be a-not-yet-published paper delivered at the July, 2011 World Congress in Computer Science Computer Engineering, Applied Science conference held in Las Vegas, NV.
From the abstract:
As most Universities and Colleges are trying to increase enrollment, we often forget the problem of retention, which is a totally different problem and should be addressed separately. We often encourage our students to use their laptops during lectures for constructive work such as taking notes, design, test programs, etc. In this study I present my classroom experiences that show why, sometimes, students should not be allowed to use their laptops during lectures. Instead of using their laptops to take notes or run programs presented in a classroom, students use their laptops to engage in social activities, work on other projects or papers, etc, and as a result they do not pay attention to the material covered in class.