November 5, 2011
How Grim is the Lawyer Employment Outlook?
According to attorney and blogger Matt Leichter, it’s pretty grim. Consider this chart:
To explain, the CPS and OOH statistics both come from the U.S. Department of Labor. CPS stands for “Current Population Survey.” OOH stands for Occupational Outlook Handbook. Yes, two departments of the Department of Labor have produced different statistics. Leichter observes:
"From 1996 to 2010, the economy created 146,000 lawyer jobs according to the CPS. In the same time period 614,089 people graduated from ABA law schools. For all graduates to be employed as lawyers, the lawyer attrition rate would need to be so massive that entry wouldn't be worthwhile in the long run. For the OOH, the attrition rate would be even higher due to only 103,200 jobs created."
I would think the attrition rate is quite massive. In addition to graduates who go into show business, dog training, etc., many simply switch to business positions, which their law degrees probably helped them obtain. Here is a link to the article.
More legal research scholarship: "Task mastery in legal research instruction"
By Professor Matthew C. Cordon, Director of Legal Research, Baylor Law School, and can be found at 103 Law Lib. J. 395 (2011). From the introduction:
I have taught an advanced legal research course twenty-five times over the past eleven years. During the first class period for each of those twenty-five classes, I have told students that during law school they can come closer to mastering the skill of legal research than any other legal skill. I still believe this statement. Nevertheless, much of the literature focused on legal research skills of summer associates and newer law graduates contradicts what I tell my students. For years, commentators have concluded that law students simply lack basic research skills necessary for law practice. Writers have long lamented the decline or simple absence of these research skills, which in part precipitated a change in teaching methods at many law schools. Most first-year legal research instruction now occurs in first-year legal research and writing courses, with the general satisfaction about the quality of instruction varying by the discipline of the critic.
Nobody doubts that legal research is a skill that permeates nearly all other legal skills. Not only does the 1992 MacCrate Report, issued by the American Bar Association Task Force on Law Schools and the Profession, include legal research as a fundamental lawyering skill, but legal research has also been said to be the only skill included therein that supports the nine other fundamental lawyering skills. The MacCrate Report was certainly not the first instance where legal research has been included as an important skill or competency. However, legal research has rarely been treated so distinctly in relation to other legal skills. The MacCrate Report was followed more than a decade later by the publication of a report from the Carnegie Foundation for the Advancement of Teaching, and Best Practices for Legal Education: A Vision and a Road Map, produced by the Clinical Legal Education Association. These three reports have been described as the trilogy that constitutes the “legal education reform canon.”
Since the MacCrate Report's issuance, a rather staggering number of authors have addressed techniques and methods for teaching legal research classes. Still, commentators such as Paul Callister have called for “new attitudes toward scholarship” regarding legal research pedagogy. Recent efforts by groups of leading legal research educators have led to widely distributed statements on legal research education and a signature pedagogy for legal research education. These efforts by scholars and professionals clearly indicate that effective legal research instruction in law schools is not a lost cause, yet the profession still needs to construct the bridge between the pedagogical theories in this area and the many and varied methods employed to teach the relevant subject matter.
Many researchers in the field of educational psychology have focused their attention on the motivational and performance consequences of different systems of instruction. Several of these studies have focused on the goal of task mastery as a learning structure. Task mastery is an individualistic motivational system in which “there is an independence of goals, that is, whether the goal (or reward) is attained by one student is not dependent upon another student's achieving the goal.” This research certainly has relevance to the topic of legal research instruction, but the concept of task mastery might also relate to mastering the individual tasks that make up the process of legal research--for instance, selection of sources appropriate to answer a legal question, the use of proper finding tools (either in computer-assisted legal research or through print sources), the development of search strategies, and cross-checking sources to ensure accuracy and thoroughness.
This article's overriding theme is that what I tell my students--that they can come closer to mastering the skill of legal research in law school than any other skill--is accurate. While a number of means might accomplish this goal, the method suggested here incorporates a goal orientation of task mastery.(jbl).
November 4, 2011
Legal research scholarship: "Does WestlawNext Really Change Everything: The Implications of WestlawNext on Legal Research"
This one is by Robert E. Wheeler, Jr., Director of Director of the Law Library, University of San Francisco School of Law and is available at 103 Law Lib. J. 359 (2011) or here on SSRN. From the abstract:
WestlawNext, Thomson Reuters’ newest electronic research service, has been around for over a year now. Ron Wheeler shares his thoughts on how this service may impact various aspects of legal research, and he suggests further study and research are necessary to fully evaluate and comprehend the system.
Donating to Charities Just by Conducting a Computer Search
www.goodsearch.com is a search engine similar to Google. Here’s the difference. Every time you conduct a search, you can be donating about a penny to your favorite charity. Goodsearch’s website has all sorts of information and answers to FAQs.
If you type “law school” into the box that pulls up the names of charities to which you can donate, you will discover that a few law schools have already signed on. I need to speak with my dean about this.
Social Media Policy & Legal Implications of Tweets
A couple of Tweets from Social Media Law (@SocialMediaLaw1) caught my attention this morning.
The first links to a study by UK law firm DLA Piper which shows that more than half of Twitter users do not consider legal implications of their posts.
The second links to this story in the Wall blog about the new social media guidelines released by the Associated Press.
The AP is advising that nobody retweet anything with an opinion.
The AP guidelines are online here.
“Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.”
It seems like this would be an interesting discussion for constitutional law class.
November 3, 2011
Why Is the Law So Perverse?
Professor Leo Katz at the University of Pennsylvania Law School offers his answer in his latest book, “Why the Law is So Perverse” From the press release:
Katz focuses on four fundamental features of our legal system, all of which seem to not make sense on some level and to demand explanation. First, legal decisions are essentially made in an either/or fashion—guilty or not guilty, liable or not liable, either it’s a contract or it’s not—but reality is rarely as clear-cut. Why aren’t there any in-between verdicts? Second, the law is full of loopholes. No one seems to like them, but somehow they cannot be made to disappear. Why? Third, legal systems are loath to punish certain kinds of highly immoral conduct while prosecuting other far less pernicious behaviors. What makes a villainy a felony? Finally, why does the law often prohibit what are sometimes called win-win transactions, such as organ sales or surrogacy contracts? Katz explains all these perversions and more, and his answers—counterintuitive and surprising—will make readers see the law in a whole new light.
He finds his answers in social choice theory and the use of multiple criteria in arriving at a legal decision. You can find out more in this interview on the UPenn Law blog.
Informal survey of law firm social media policies pertaining to their attorneys
What social media policies do law firms have in place to minimize attorney misuse and embarrassing gaffs? That's the question this column from the AmLaw Daily asks in the wake of the Jill Filipovic-TSA dust-up (Ms. Filipovic, if you didn't already know, is a NYC BigLaw attorney). Here's what AmLaw found:
Blogs, LinkedIn, Facebook, Twitter—for risk-averse lawyers at reputation-sensitive firms that are conscious of their ethical obligations, each social media interaction can present as many challenges as benefits. While most firms either have some kind of social media policy in place or are in the process of developing one, press representatives at a random sampling of Am Law 200 firms contacted by The Am Law Daily were hesitant to speak about specific policies, and none would talk on the record.For her part, Filipovic responded to an Am Law Daily interview request with an e-mail message that read, in part, "I appreciate your interest, but I really just want to move on and I'm not talking about this any further. I'm also particularly concerned about my employment at this point and am trying to leave my firm entirely out of any discussions."
That concern appears to be unwarranted.
Jody Maier, Kramer Levin's chief marketing officer, said in an e-mail that the firm neither encourages nor discourages its employees "from blogging or otherwise discussing their personal lives." The firm does have policies—some of which apply to social media—that prohibit discussions about firm business or clients. However, Maier said, "To our knowledge, those policies have not been violated." Asked if Kramer Levin might consider revisiting those policies as they relate to its lawyers' social media behavior when it doesn't involve discussions of firm business, Maier said the firm is "comfortable with our existing policies."
So far, there have only been a handful of public controversies involving attorneys' online behavior. In one instance, an American lawyer working as an Allen & Overy associate in Moscow lost her job in 2009 after publishing racy installments of a sex-themed novel on the Web using the pseudonym Deidre Dare (her actual name is Deidre Clark).
In a subsequent interview with The Telegraph, Clark said she was surprised the firm fired her, adding that her online postings hadn't involved firm business or clients in any way. Clark sued Allen & Overy in New York state court in June for wrongful termination; a review of court records shows that the suit is pending.
Earlier this year, Akin Gump Strauss Hauer & Feld partner Paul Mirengoff kept his job, but stopped writing for a conservative political blog he helped found, Power Line, amid a controversy over a post he wrote criticizing a Yaqui Indian tribal prayer delivered before a memorial service dedicated to victims of the Tucson mall shooting. Mirengoff's post drew the ire of Akin Gump American Indian law and policy partner James Meggesto, who, along with Akin Gump chairman Bruce McLean, expressed his distate for the commentary on the firm's website. Mirengoff later publicly apologized and announced he would no longer contribute to Power Line.
Other lawyers appear to have created a more successful balance between their social media and law firm lives. Sullivan & Cromwell corporate partner Frank Aquila, a New York lawyer whose name appears on many of the firm's largest mergers and acquisitions matters, including InBev SA's $52 billion purchase of Anheuser-Busch and British Airways' merger with Iberia, has tweeted more than 9,000 times since joining Twitter in 2008.
So far, Aquila says, none of those tweets—which cover everything from his love of the New York Jets to the latest development in Greece's perilous financial situation—have prompted complaints from the firm or its clients.
"The key from my perspective is that lawyers should not be tweeting or saying anything in social media or blogs that they wouldn't otherwise be saying or writing in any other environment," Aquila says, adding that he follows one fundamental rule: If he even has to pause and think about whether something he is about to tweet could affect a client, he doesn't tweet it.
John Quinn, the outspoken managing partner of Quinn Emanuel Urquhart & Sullivan, is another active Twitter user whose tweets run the gamut from the firm's latest trial win to Quinn's parental pride about his daughter's medical school accomplishments. One tweet did get Quinn in trouble with a judge, who questioned why the litigator was announcing via Twitter, "Winklevoss twins lose again: QE payday cometh" when details connected to the subject of the tweet—a fee dispute between the firm and its former clients, Facebook Inc. rivals Cameron and Tyler Winklevoss—was under seal.
Kevin O'Keefe, CEO and publisher of Seattle-based legal social media consultancy LexBlog, says many law firms are grappling with how much control they should exert over their lawyers' social media behavior.
"There's no question that exactly that question has come up with larger firms," O'Keefe says. In his view, the correct approach is not to create more policies, but to educate all sides on the implications that could come from social media use, whether attorneys are using the firm's name or not.
"Law firms would struggle to say nothing you do in your personal life affects your professional life," O'Keefe says. "It's not as easy as that."
Continue reading here.
Soliciting authors for "Best Practices in Legal Education'
The Clinical Legal Association, Best Practices Implementation Committee is planning a follow-up publication to Best Practices for Legal Education by Roy Stuckey and others. The vision of the book is to build on ideas for implementing best practices, and to develop new theories and ideas on Best Practices for Legal Education. If you would like to author a section in the book please let us know as soon as possible. Then by December 1, 2011 send either of us a 3-5 page abstract identifying the knowledge, skills and values as well as the learning objectives and methodology of your innovative teaching idea. The Editorial Board will meet at the AALS meeting in January to select pieces for inclusion in the book.
Making effective use of students evals
How to Read a Student Evaluation from the Chronicle of Higher Ed:
Read them. It seems self-evident to say that the first step in learning from a student evaluation is to read one. But what professor has not been tempted to disregard student comments? Or even insist on ignoring them? I passed through such a phase for a year during my tenure-track days. I didn't want to hear anything negative, so I avoided student ratings altogether.
But read them you must because you will find data that are helpful in improving your teaching and because the department chair will, and the senior faculty members may, read your evaluations. You may be asked, in yearly reviews or in your statements on teaching, to respond to any issues raised by students. Retorting "I pay no attention to evaluations" is unacceptable.
Scan for red flags. Stepping outside of yourself and thinking like a promotion-and-tenure committee as you inspect your own record prepares you for the actual judgment. In the world of student evaluations, certain items cry out for attention in the positive or the negative. Note the latter as ones that you need to deal with in future courses and perhaps in explanation to your department.
For example, students, especially groups of students, almost never invent procedural complaints against faculty members. So if, out of a class of 30, six or seven students assert, "He does not show up on time for class but expects us to" or "I have shown up for office hours three or four times and he wasn't there," then a reader would be likely to believe there is a real and serious problem about your fulfilling one of the sacred obligations of your employment: physical attendance for your contractual duties.
The high-attention items are also an early-warning radar that can help you head off longer-term troubles. If a third of the class writes, "She mumbles sometimes and is hard to hear," then conduct a "sound check" of yourself in the classroom before the start of the next semester. Or if you get a number of students noting, "He doesn't leave enough time to ask questions," maybe you should allot more time during class for that purpose.
Think ahead; evaluate yourself first. Here is a pop quiz: Name three questions commonly listed on student evaluations. You can't? Join the club. Think about what that means. The students will be evaluating you on certain criteria, but you don't know what those are.
Prepare for those questions by taking them into account when designing your courses. I do not mean skew your content, style, and delivery to butter up students. But the questions on evaluations often do serve as a good checklist for you and your teaching. For example, typically there is a question like, "Were the course objectives clearly explained in the syllabus?" Why not read over your course objectives, show them to trusted colleagues or mentors, or even test them out on students you already know?
The second part of preparing for evaluations is to show students how you have fulfilled the criteria on which you will be rated. In the case of course objectives, on the first day of class, lay them out carefully, noting that they are also spelled out in the syllabus. In a later class, perhaps the one previous to the session in which you will hand out the evaluations, reiterate your course objectives and explain how they have been achieved. That's not pandering to students; that's transparent teaching.
And last but not least:
Even if it's personal, don't take it personally. As teachers (especially those who are probationary faculty members), we put our egos and self-worth on the line every day before an audience. No profession save stand-up comedy is as prone to both spectator-driven elation and disheartenment. But even if you are insulted, upset, or demoralized by students failing to appreciate some aspect of the class or making inappropriate and nasty personal comments, don't take it personally.
First, on a practical basis, there are no re-dos. You can't teach the same students in the same class again. Every semester you get another chance to start fresh with lessons learned.
Second, recognize that, in the heterogeneous accumulations of humanity before you, there are all sorts of personality types with all sorts of pre-existing challenges.
Finally, 99 times out of 100, any invective that students may express through the anonymity of the evaluation is aimed at the role you play of instructor, not at you as a human being.
Read additional tips here about how to make positive use of students evals.
November 2, 2011
New study shows multitasking has negative effect on task performance where accuracy matters
The article is called Juggling on a High Wire: Multitasking Effects on Performance by Professor Raquel Benbunan-Fich and Rachel F. Adler. It's available at the International Journal of Computer-Human Studies (accepted for publication but not yet assigned to an issue). The abstract doesn't say what sort of tasks the study subjects were asked to perform other than the researchers used an "experimental environment."
From the abstract:
In this study, we develop a theoretical model that predicts an inverted-U relationship between multitasking and performance. The model is tested with a controlled experiment using a custom-developed application. Participants were randomly assigned to either a control condition, where they had to perform tasks in sequence, or an experimental condition, where they could discretionarily switch tasks by clicking on tabs. Our results show an inverted-U pattern for performance efficiency (productivity) and a decreasing line for performance effectiveness (accuracy). The results of this study indicate that the nature of the relation between multitasking and performance depends upon the metric used. If performance is measured with productivity, different multitasking levels are associated with an inverted-U curve where medium multitaskers perform significantly better than both high and low multitaskers. However, if performance is measured with accuracy of results, the relation is a downward slopping line, in which increased levels of multitasking lead to a significant loss in accuracy. Metaphorically speaking, juggling multiple tasks is much more difficult while balancing on a high wire, where performance mishaps can have serious consequences.
The Most Famous Kennedy Quote
Wednesday morning, I listened to an interview with Chris Matthews on MSNBC’s “Morning Joe.” He has just published a book on President John F. Kennedy. In his research, Mr. Matthews uncovered the source of that famous line in President Kennedy’s inaugural address: “Ask not what your country can do for you—ask what you can do for your country.”
When JFK was a student at Choate, a well-known boarding school, the headmaster spoke to an assembly of students and exhorted them not to ask what Choate could do for them, but what they could do for Choate.”
Maybe our words also will inspire our students in years to come.
Asana - New Web Productivity Tool – Should Launch Today
This post from TechCrunch has more information about Asana, a web-based productivity tool from Facebook Cofounder Dustin Moskovitz.
Asana is not a social networking tool, but a web application to keep your work (or your team project) in sync – “a single place for everyone to quickly capture, organize, track and communicate what they are working on.” It is free for groups of up to 30 people.
I tried to create an account this morning, but it was not yet open for users. Hopefully, later today I’ll receive an email and be able to start exploring this tool.
You can create an account (or sign up to receive an email when the service is open for users) here.
Sampling Size Problems
Many of us use statistical methods in our research. Daniel Kahneman in his recent book, Thinking Fast and Slow (Chapter 10), warns about using intuition in connection with statistics. As an example, he states that the incidence of kidney cancer in U. S. counties is lowest in rural, sparsely populated areas, located in traditionally Republican states in the Midwest, South, and West. Based on this information, we might conclude that this result might be due to the lack of pollution and cleaning living in rural areas. However, we would be wrong. The same study shows that the incidence of kidney cancer in U. S. counties is highest in rural, sparsely populated areas, located in traditionally Republican states in the Midwest, South, and West.
The discrepancy in results is due to sampling size. Larger counties have a larger sample so they are less likely to show extreme results. Smaller counties have a smaller population and thus a smaller sample size so they are more likely to produce extreme results. (For example, a rural county may have a population of 10,000, while an urban county has a population of 1,000,000. Thus, in this example, rural counties are at both extremes.)
The lesson to be learned from this example is that we should not rely on our intuitions concerning sample size (and intuitions concerning statistics in general), but use statistical methods to determine what the sample size should be. If you don’t do this, your results will be random (meaningless). (This means that, if you get bad teaching evaluations from your students in a small class, the result could be random, but that, if you get bad evaluations in a large class, you should worry.) Kahneman ends this chapter with a quote: "The sample of observations is too small to make any inferences. Let’s follow the law of small numbers." [and not make any inferences.]
November 1, 2011
One neuroscientist says the brain imaging defense has no place in a courtroom
In an interview with Dr. Michael Gazzaniga, a noted neuroscientist, professor of psychology and author of Who's In Charge?: Free Will and the Science of the Brain, the New York Times reports that the good doctor opposes the growing practice of using brain scans in criminal trials to mitigate the responsibility of defendants due to alleged neurological deficiencies in impulse control. The problem, he says, is that brain scans can't tell us where personal responsibility stops and abnormal brain function begins.
In recent years lawyers have begun to present brain images as evidence, usually to mitigate responsibility for a crime or to test veracity of testimony, as in a polygraph; increasingly, those images have been admitted. And more are coming: In imaging studies, for instance, neuroscientists have identified cortical areas that are highly active when people suppress impulses or other behaviors.
But there are clear shortcomings in the application of each of these methods in courtrooms. Brain images are snapshots, for one thing; they capture a brain state at only one moment in time and say nothing about its function before or after. For another, the images vary widely among people with healthy brains — that is, a “high” level of activity in one person may be normal in another. Can brain science tell exactly where automatic processes end and self-directed “responsible” ones end?
Not now and not likely ever, Dr. Gazzaniga argues in his book. Social constructs like good judgment and free will are even further removed, and trying to define them in terms of biological processes is, in the end, a fool’s game.
“My contention is that, ultimately, responsibility is a contract between two people rather than a property of the brain, and determinism has no meaning in this context,” he writes in “Who’s in Charge?”
Like generosity and pettiness, like love and suspiciousness, responsibility is what he calls a “strongly emergent” property — a property that, though derived from biological mechanisms, is fundamentally distinct and obeys different laws, as do ice and water.
Dr. Gazzaniga is not the first scientist making this case. It is far from a settled matter, in part because researchers do not yet have a complete picture of how automatic and deliberate systems interact biologically.
“I see Gazzaniga’s point, and it would indeed be easiest if we could ignore conclusions derived from brain science and psychology when it comes to legal issues,” said Ap Dijksterhuis, a psychologist at Radboud University Nijmegen, in the Netherlands, in an e-mail. “However, I do not think we can do this forever, and at some point, some key legal concepts such as accountability or responsibility will have to be redefined.”
Until then, Dr. Gazzaniga’s advice is to look for them where they’ve always been: in the hearts and moral intuitions of human beings, in their laws and customs.
The "Rakofsky effect" has found its way into the Urban Dictionary
You may have heard of the Streisand effect which refers to the phenomenon that trying to suppress online information only calls more attention to it. Now the Rakofksy effect, as in Rakofsky versus The Internet, has entered the modern lexicon. More specifically, the Urban Dictionary.
1. Rakosky EffectInfinite pleading amendments as the unintended consequence of suing to censor your critics.
This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.
Study finds BigLaw women associates are reviewed more harshly than men
From the Careerist column at the lawjobs.com:
In a fascinating study (PDF) in Social Psychological and Personality Science, authors Monica Biernat, M.J. Tocci, and Joan Williams looked at the performance reviews of 234 associates at an anonymous Wall Street law firm. Their finding: Men outscored women in numerical ratings, though women often got glowing comments on the narrative portion of the reviews.
In fact, words such as "excellent," "awesome," and "stellar" appeared more frequently on reviews about women, though that didn't usually result in higher numerical scores. But for men who got similar praise, there was a correlation between the narrative review and their scores.
Why should anyone care? Well, the numerical scores have a great impact on partnership. "The firm's reliance on numbers for partnership consideration made it three times more likely that men will be promoted to partner," says the report.
Here's a summary of some of the findings:
1. Male supervisors gave higher numerical ratings to male associates than female ones.
2. A higher percentage of men (14 percent) than women (4.76 percent) got evaluations in the top category (equal or greater than a 4.5 on a 5.0 scale).
2. Technical competence mattered more for men than women.
3. Interpersonal warmth mattered more for women than men.
So what does this all mean? "Women are expected to be well-socialized and be attuned to other people's needs," says Joan Williams, one of the authors and a law professor at the University of California at Hastings. "They are expected to do nice work, but they are not assumed to be rainmakers."
But "if a man has social social skills, he's regarded as a real find. . . . If the [evaluation] comment is that he's 'good with clients,' it results in an immediate 5," says Williams. "But if the comment is 'clients love her,' the lawyer only got a 4."
So a woman is damned if she's all business, and damned if she's warm and cuddly.
Setting the bar higher for women is not conscious, explains Williams. Nonetheless, the effect is that "women have to prove themselves over and over again. That means women literally have to work harder—which is why so many women drop out."
Does this strike a chord where you work? Do women have more to prove? And do you think the review process at your firm or company is this slanted?
A practical guide to returning client files
An excellent primer on issues relating to client files after the attorney and her client have parted ways. From the New York Law Journal:
It happens to every lawyer at one time or another. After months or years of loyal service, a client suddenly announces that she has found a new lawyer, and wants the case file transferred to that lawyer as soon as possible. This request raises a host of practical questions. What exactly is included in the "case file?" What must be given to the client, and what can be withheld? Who is responsible for the costs of sorting through and copying the file? What if the client has not fully paid for the lawyer's services?
Indeed, few areas of professional responsibility law prompt as many inquiries from lawyers and clients as the seemingly simple act of surrendering the client file. These inquiries become particularly fraught when legal malpractice claims or fee disputes loom, and lawyers become concerned that the contents of their files will somehow be used against them in upcoming litigation. In this article, we will answer some of the most common questions clients and practitioners ask.
Who Owns the File?
The answer to this is straightforward: Assuming the client has paid the bill, the client owns the file. (The last section of this article addresses the situation where the client has not paid.) Moreover, since the client owns the file, and is generally free to discharge the lawyer, the client is entitled to get back the entire file if he or she asks, with some minor exceptions.
This basic principle was established in New York in Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 666 N.Y.S.2d 985 (1997). There, Proskauer had represented Sage Realty Corp. in connection with a large real estate mortgage financing involving several properties. Id. at 32. The work involved was substantial, resulting in a 14-volume closing binder and legal fees totaling more than $1 million. Id. at 33. After approximately two years, Sage discharged Proskauer and retained Nixon Hargrave to represent it in various post-closing matters. Id. Sage asked Proskauer to turn over the files "in their entirety" and, Proskauer's bill having otherwise been paid, "tendered a check for Proskauer's bindery expenses" (i.e., the expenses of creating the transaction's closing binder). Id.
Proskauer, however, turned over only part of the file. It agreed to produce the closing binder, client-supplied papers, client correspondence, the index to the case files, and the final versions of such supporting documents as formal legal opinions, tax forms, and environmental and engineering reports. Id. It would not produce internal memoranda, attorney notes, drafts and mark-ups of contracts, correspondence with third parties and an internally prepared chart showing the ownership structure of the various properties involved in the refinancing. Id.
Even after Sage sued to retrieve the entire file, Proskauer remained adamant. The lower courts, relying on Zackiva Commc'ns Corp. v. Milberg, Weiss, Bershad, Specthrie & Lerach, 223 A.D.2d 417, 636 N.Y.S.2d 768 (1996), which articulated the New York rule at the time, agreed with Proskauer that only the closing binder and the client's own documents need be returned, and that the remainder of the file, reflecting the "opinions, reflections and thought processes" of counsel, was Proskauer's "private property," and did not need to be produced absent a showing of particularized need. See Sage, 235 A.D.2d at 355.
The Court of Appeals reversed, and created a new statewide rule regarding return of the client's file. Following the lead of "[a] majority of courts and State legal ethics advisory bodies," the Court held that "upon termination of the attorney-client relationship, where no claim for unpaid legal fees is outstanding," a lawyer must "presumptively accord [the client] full access to the entire attorney's file on a represented matter with narrow exceptions." Sage, 91 N.Y.2d at 34. The Court rejected the view that the attorney had a property right in the contents of the client's file.
Noting that New York case law provided that, in a pending matter, courts "have refused to recognize a property right of the attorney in the file superior to the right of the client," the Court saw "no principled basis" for holding that an attorney's property right in the file somehow "spring[s] into being" when the attorney-client relationship ends. Id. at 36. The Court's conclusion found further support in the attorney's fiduciary "obligation of forthrightness" to the client, and in the impracticality of placing the burden on the client to articulate a specific need for a particular document when the client has no access to the file. Id. at 36-37.
The Sage Court's conclusion makes sense for another and perhaps simpler reason: The client has paid the full fee, and thus owns the work the attorney has done, including the contents of the file. The Court suggests as much at one point in its decision. Id. at 37 ("petitioners should be entitled to inspect and copy work product materials, for the creation of which they paid during the course of the firm's representation") (emphasis added). As the Court recognized, the prior notion that somehow, vis-à-vis the client, the lawyer has a superior right to all "work product" in the file, stands both the economic and fiduciary relationship between lawyer and client on its head.
What Must Be Turned Over?
Under Sage, lawyers could no longer resist client demands for attorney "work product," even "opinion work product," "[b]arring a substantial showing by the [law] firm of good cause to refuse client access"—though what this particularized showing would be is never explained. Id. Thus, such items as internal legal memoranda, attorney notes of key meetings (especially meetings with third parties), correspondence with third parties, and investigative reports—indeed, any documents that might "be of significant usefulness to the client or to a successor attorney"—have to be turned over. Id. at 37-38.
Nevertheless, the Court created a few exceptions. In addition to a showing of "substantial need" to refuse disclosure in a particular case, these exceptions fall into two categories: (1) "documents which might violate a duty of nondisclosure owed to a third party [e.g., documents subject to an attorneys' eyes only confidentiality agreement], or otherwise imposed by law;" and (2) "firm documents intended for internal law office review and use." Id. at 37.
As examples of the latter, the Court cited documents "containing a firm attorney's…assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services entailed in that representation." Id. at 37-38. More broadly, the Court noted "the need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation." Id. at 37, citing Restatement [Third] of Law Governing Lawyers [Proposed Final Draft No. 1, 1996], §58, comm. C (hereafter, "Restatement Draft").
The Sage Court thus created a new and unformed zone of protection over certain documents that are immune from disclosure, even to the client. We know that this is not a new client privilege (the client cannot waive it and demand production) and not some form of attorney work product (the Sage Court said that work product had to be turned over). Id. at 37. Beyond that, the scope of the exception remains a mystery.
In trying to solve that mystery, courts must keep in mind that the Sage case involved a dispute between a lawyer and a client upon withdrawal. It was not intended to serve as a rule of discovery in civil cases. Yet New York courts, federal and state, have tried to apply Sage in that context, leading to different views as to the breadth of the exception. Some courts have articulated the exception rather narrowly, pinning it on the former client's need for the document, though their holdings go no further than saying, as Sage does, that opinion work product must be disclosed. See, e.g., Polin v. Wisehart & Koch, 00 Civ. 9624, 2002 WL 1033807 at *3 (SDNY 2002); Gamiel v. Sullivan & Liapakis, 289 A.D.2d 88, 88, 733 N.Y.S.2d 610 (1st Dept. 2001); Bolton v. Weil Gotshal & Manges, LLP, Index No. 602341/03, 2005 WL 5118189 at *4 (Sup. Ct. N.Y. Co. 2005) (also requiring disclosure of firm policies regarding billing and conflict checks).
Other courts and commentators articulate what we consider the better view: that draft documents intended as preliminary—an associate's draft memorandum not shown to the partner, a lawyer's draft letter to the adversary not shown to co-counsel, a draft e-mail to the client not sent to him—are within the Sage exception. See, e.g., In re Touch Am. Holdings, No. 03-11915 (KJC), 2009 WL 1393078 at *2 (Bankr. D. Del. 2009) (applying Sage to prohibit disclosure of, inter alia, "incomplete documents circulated only within the law firm that contain a lawyer's preliminary assessment of legal and factual issues"); Lippe v. Bairnco Corp., 96 Civ. 7600 (DC), 1998 WL 901741 (SDNY 1998) (Chin, J.) (withholding "attorney notes, research memoranda, and research outline[s]" because they constitute "tentative preliminary impressions"); P. Connors, "1997-98 Survey of New York Law: Professional Responsibility," 49 Syracuse L. Rev. 679, 693 (1999) (noting that Sage "carved out an important exception for documents intended for internal law office review"); see also In re Refco Sec. Litig., 07 MDL 1902 (JSR), 2011 WL 497441 (SDNY 2011) (barring discovery of internal e-mail discussions among law firm partners conveying preliminary impressions of case in securities class action, though court noted disclosure may be broader in legal malpractice case). As these authorities recognize, allowing the production of internal, preliminary documents which their authors considered incomplete or incorrect serves no useful purpose—even to the now adverse former client.
What are the attorney's obligations with respect to client files if the bill hasn't been paid? Continue reading here to find out.
Obsessing Over Citation Form
If you find dealing with citation form particularly distasteful, here is an article for you: “Citation Obsession? Get Over It!,” by Kurt Schick on the Chronicle of Higher Education online. His point:
What I advocate here is not to dispense with teaching students how to use sources but rather to abandon our fixation on the form rather than the function of source attribution. Here's why: We cannot control how much time and effort students invest in a particular writing assignment; we can only influence how they distribute their energies. Professors' overattention to flawless citation (or grammar) creates predictable results: Students expend a disproportionate amount of precious time and attention trying to avoid making mistakes. Soon, they also begin to associate "good" writing with mechanically following rules rather than developing good ideas.
October 31, 2011
What is the Best Book to Teach Legal Skills? (syllogisms)
My choice is Legal Argument: The Structure and Language of Effective Language by James A. Gardner. I think that at least one first-year class should teach this book and its methods in detail. You cannot teach Gardner's method in just one class. The teacher needs to teach it throughout a semester so that it will stick.
Gardner believes that legal reasoning relies too much on analogical reasoning. Rather, " all legal argument should be in the form of syllogisms."
A syllogism is deductive reasoning:
1. Major premise
2. Minor premise
1. All men are mortal
2. Socrates is a man
3. Therefore, Socrates is mortal.
Gardner goes into great detail on how to use syllogisms to develop legal arguments. He then shows how to use the method to write up the argument. I especially like his example in Chapter 8 on an Endangered Species Act Violation.
For a way to incorporate syllogisms (and other methods of legal reasoning) into a small-scale paradigm, see my article Legal Argument and Small-Scale Organization at http://ssrn.com/abstract=979656 .
How college students are increasingly using Facebook in their studies
From the Chronicle of Higher Ed:
College students are taking social media to a new level, using Web sites like Facebook to communicate with other students about their coursework, according to results of a new survey on student technology use.
Nine out of 10 college students say they use Facebook for social purposes, like writing status updates and posting pictures. And the majority, 58 percent, say they feel comfortable using it to connect with other students to discuss homework assignments and exams. One out of four students even went so far as to say they think Facebook is “valuable” or “extremely valuable” to their academic success.
The survey was conducted in June by the Educause Center for Applied Research, and was taken by 3,000 students from more than 1,000 colleges. The results show how technology is shaping students’ lives both inside and outside the classroom.
Kevin Roberts, chief information officer of Abilene Christian University, says technology is merging the academic and social aspects of students’ lives.
“Learning takes place beyond the 50 minutes you spend in class,” Mr. Roberts said. “So using Facebook, while you’re talking about the Rangers game, students just throw in, ‘Oh, by the way, did you understand what Dr. So-and-So was talking about today?’”
Some students say they still want to keep their social and academic lives separate, as noted in an earlier Chronicle story. In the survey, 30 percent of students say they prefer to draw a line between these two worlds.
Students are taking to other social networks, too. More than 30 percent of students say they use sites such as Twitter, MySpace, LinkedIn, and Google+. Nearly a quarter of students report using social studying sites, such as CourseHero and GradeGuru, and 11 percent say they wish instructors would incorporate these sites into the curriculum more often.
The idea of students wanting professors to integrate more technology use into the classroom was a common takeaway from the survey. After e-mail, learning-management systems and e-textbooks were the two technologies that students wanted instructors to use more frequently, according to the survey.
Learning-management systems are used by 73 percent of students, and e-books or e-textbooks by 57 percent.
Even though those technologies are commonplace on most campuses, some students say that their instructors don’t use them effectively or that they themselves don’t have the skills they need to use them effectively.
“Students are saying they want to see classes taught more like how they live their lives,” Mr. Roberts said. “I don’t think they just want technology for technology’s sake.”