Monday, November 7, 2011
Courtesy of one of our favorite legal practice blogs, the Lawyerist:
Here are some very helpful Apple legal practice resources from around the web:
From spending some time reading these great resources, it is quickly evident that there are a lot of advantages to choosing Apple in your legal practice. However, making the switch isn’t without disadvantages. If you’ve been a PC your whole life, you should understand that there will be some leaning involved. There are also price considerations. Macs and iPhones certainly aren’t the most affordable computing and cell phone options out there.
- MILOfest – a conference for attorneys interested in Macs, iPhones, iPads and anything else bearing an Apple logo #MILOfest.
- MILO Google group - the largest forum for Mac-using attorneys.
- The Mac Lawyer – A blog about using macs in the practice of law by Spartanburg, SC attorney Ben Stevens
- Esquire Mac - a blog by Adam Greivell, a 20+ year Mac veteran and Maryland litigation attorney.
- iPhone J.D. – a site for lawyers using iPhones and iPads published by Jeff Richardson, an attorney in New Orleans, Louisiana.
- TabletLegal – a blog discussing use of Apple’s iPad by lawyers and in the legal profession authored by Josh Barrett, a Portland, Oregon business attorney.
- Apple Briefs - Improving your law practice with Macintosh by attorney Jeffrey Kabbe.
- Web Resources for Mac-Using Lawyers – and those who want to be, a great list at the Inspired Solo.
- Macs In Law – Using Macs, iPhones, & iPads in the practice of law by Brett Burney.
- ABA Journal Mac vs. PC (2008) – Attorneys Ben Stevens and Rick Georges duke it out.
- SPU What’s New – Macs in the Law Office – interview with Victor Medina, who teaches Macs in the Law Office at SPU.
Students’ use of electronic books has grown little, if at all, over the past three years, according to international surveys of more than 6,500 college students conducted in 2008 and again this year. The finding, from ebrary’s Global Student E-book Survey, surprised audience members when the survey report was previewed this week at the Charleston Conference, a gathering of librarians, publishers, and e-book vendors. Even so, presenters said they felt confident that the number of e-book users would grow more rapidly over the next six months, and that libraries and colleges must be ready to handle the demand. Other results from the survey showed that while students feel there is a need for both print and e-books, they would opt for the e-book if available. Respondents also said the availability of more titles in their areas of study would help make e-books more suitable for the classroom. A full report on the survey will be available in January.
On Tuesday, Pennsylvania voters—as well as voters in some other states--will go to the polls to elect judges and decide whether to retain some sitting judges. The Philadelphia Inquirer is conducting a poll to determine how voters make their decisions. Here are the results as of last Friday:
Posted on Fri, Nov. 04, 2011
How will you pick among judicial candidates on Tuesday?
I just look at their political party
I look at bar association ratings
I pick the familiar-sounding name
No clue as to any of the candidates, so not voting
Total votes = 120
Judicial election is not a good system.
The National Law Journal has published an article criticizing Campos and his scam blog. I published similar criticisms here several weeks ago. Both my post and the NJL article are particularly critical of Campos's tone.
What Mr. Campos does not seem to understand is that there are a lot of good people in the legal academy. Some of these people, including myself, agree that reform is needed in many areas of the legal academy. Others disagree, but most of them do so in good faith. Why does Mr. Campos take such an insulting tone to those who act in good faith?
Two groups that are especially hard-working and who make sacrifices for their students are legal writing professors and clinicians. Most of them do not have the same job security as doctrinal professors, and they generally make much lower salaries. They deal with students individually on a daily basis, and they usually put in many more hours than doctrinal professors. I have meet these teachers at conferences, and they are very good people who care about their students and their colleagues.
Mr. Campos do you interact with the legal writing professors and clinical professors at your law school? Do you know their status and salaries? Do you know how many hours they put in? Have you ever asked one of your students if they like their legal writing professor?
Martin Luther King's Letter from a Birmingham jail begins:
My Dear Fellow Clergymen:
While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.
Mr. Campos do you think there might be a lesson in the above?
Sunday, November 6, 2011
That's according to a November 3, 2011 NALP study titled Law Firm Diversity Wobbles: Minority Numbers Bounce Back While Women Associates Extend Two-Year Decline. From the introduction:
The latest NALP findings on law firm demographics reveal that law firms have made up some but not all of the lost ground after diversity figures fell in 2010. While the representation of minorities increased, more than making up for the decrease from 2009 to 2010, the overall representation of women declined slightly further in 2011 compared with 2010.
In 2011, the percentage of both women and minority partners in law firms included in the NALP Directory of Legal Employers was up by a small amount compared with 2010. Among associates, however, representation of women declined slightly for the second year in a row and for only the second time since NALP started compiling this information in the 1990’s. The net effect was that, for lawyers as a whole, representation of women overall decreased by a tiny amount and the representation of minority women remained about flat. For minorities as a whole, representation was up slightly. Minorities now make up 12.70% of lawyers reported in the NALP Directory of Legal Employers, compared with 12.40% in 2010. Just under one-third of lawyers at these same firms are women— 32.61% in 2011 compared with 32.69% in 2010, both of these most recent years lower than the 32.97% mark reached in 2009. Minority women now account for just over 6% of lawyers at these firms — 6.23% in 2011, comparable to the 6.20% figure for 2010, and lower than the 6.33% figure for 2009.
During most of the 19 years that NALP has been compiling this information, law firms had made steady, if somewhat slow progress in increasing the presence of women and minorities in both the partner and associate ranks. In 2011, that slow upward trend continued for partners, with minorities accounting for 6.56% of partners in the nation’s major firms, and women accounting for 19.54% of the partners in these firms. In 2010, the figures were 6.16% and 19.43%, respectively. Nonetheless, the total change since 1993, the first year for which NALP has comparable aggregate information, has been only marginal. At that time minorities accounted for 2.55% of partners, and women accounted for 12.27% of partners. Among associates, the percentage of women had increased from 38.99% in 1993 to 45.66% in 2009, before falling back to 45.41% in 2010 and to 45.35% in 2011. Over the same period, minority percentages have increased from 8.36% to 19.90%, more than recovering from a slight decline to 19.53% in 2010.
Minority women continue to be the most dramatically underrepresented group at the partnership level, a pattern that holds across all firm sizes and most jurisdictions. Minority women make up just over 2% of the partners in the nation’s major law firms. At just 2.04% of partners in 2011, this group continues to be particularly underrepresented in the partnership ranks, despite a small increase from 1.95% in 2010. The representation of minority women partners is only a bit higher, 2.47%, at the largest firms of more than 700 lawyers. Minority men, meanwhile, account for just 4.52% of partners this year, up from 4.21% in 2010. At the associate level, minorities account for 19.90% of associates, up from 19.53% in 2010, and minority women account for 10.96% of associates, a tiny increase from 10.90 in 2010, and still below the 11.02% figure reached in 2009.
These are the most significant findings of NALP’s recent analyses of the 2011-2012 NALP Directory of Legal Employers (NDLE), the annual compendium of legal employer data published by NALP.
Hat tip to the National Law Journal.
Contract work doing e-discovery document review is one way some attorneys have made ends meet in a tough job market while looking for better, full time positions. We've read reports before that even these safety net jobs may one day be lost to software that can review documents more efficiently and far less expensively than armies of contract attorneys. But now a couple of researchers - a BigLaw attorney working with a professor of computer science - have subjected this kind of software to the Pepsi challenge and found that it is not only a quicker, less costly alternative to flesh-and-blood associates, but it also does a "superior" job in terms of screening material for relevance.
The study is titled: Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review and is available at XVII Rich. J.L. & Tech. 11 (2011). From the abstract:
E-discovery processes that use automated tools to prioritize and select documents for review are typically regarded as potential cost-savers – but inferior alternatives – to exhaustive manual review, in which a cadre of reviewers assesses every document for responsiveness to a production request, and for privilege. This Article offers evidence that such technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review, as measured by recall and precision, as well as, a summary measure combining both recall and precision. The evidence derives from an analysis of data collected from the TREC 2009 Legal Track Interactive Task, and shows that, at TREC 2009, technology-assisted review processes enabled two participating teams to achieve results superior to those that could have been achieved through a manual review of the entire document collection by the official TREC assessors.
Hat tip to attorney@work.
Drafting advice and tactics from two expert appellate lawyers courtesy of the New York Law Journal:
Although reply briefs are optional, it is generally advisable to file a reply brief lest the respondent's unanswered arguments take hold before oral argument is heard or the lack of a reply is viewed as a concession of the validity of those arguments. More to the point, few lawyers can resist the temptation of having the last word when the opportunity presents itself.
A reply brief's mission is different from an opening brief. A reply gives the appellant an opportunity to answer the questions the reviewing court may have after reading the respondent's brief. The court may need to know more about the key facts, the relevant case or statutory law, or the policy considerations that militate against the respondent's position. All too often, however, reply briefs fall into one of two categories: one that merely rehashes the appellant's main arguments without replying to the respondent's opposing arguments in any meaningful fashion, or one that goes tit-for-tat with every factual and legal argument in the respondent's brief. These types of reply briefs do little to advance the appellant's cause and should be avoided.
Rules of Practice
First, a few words about the formal requirements for reply briefs. CPLR 5528(c) provides that a reply brief "shall conform to the requirements" for an appellant's brief "without repetition." Theoretically, this would include a statement of the questions presented, a statement of the nature of the case and relevant facts, and the argument divided into points by distinctive headings (see CPLR 5528[a]). In practice, there is far greater flexibility in preparing the reply brief than the appellant's brief, and the courts rarely reject a reply brief that departs from the statutory format. Indeed, the customary format consists of reply points only, without redundant preliminary statements or the like.
Reply briefs should be as concise as possible, and the Appellate Divisions have express page limits for reply briefs.1 On cross-appeals, the respondent-cross appellant may file a reply brief limited to the issues raised on the cross-appeal after receipt of the appellant's reply brief.2
There is no provision for a sur-reply brief in the rules of the Appellate Divisions. The rules of the Court of Appeals specifically prohibit sur-replies.3 Nevertheless, the courts will occasionally grant a motion for leave to file a sur-reply brief for good cause shown.4
Post-argument and post-submission communications to the court, concerning motions and appeals, in the form of letters, memoranda or briefs, are also prohibited.5 Permission to file such documents should be sought by submitting a copy of the proposed communication to the court clerk, with a request that it be accepted and distributed to the court that heard the motion or appeal. Permission is rarely granted, except where the court specifically requested or authorized additional submissions, for example, to clarify an issue raised during argument.
Structuring the Reply Brief
Even though the time to file a reply brief is shorter than other briefs, it is a mistake to put pen to paper before thoroughly analyzing the respondent's brief, and asking two basic questions: What questions will the court have after reading the respondent's brief, and what are the greatest factual and legal vulnerabilities of both side's positions? The answer to these questions will determine the content of the reply brief. It is often useful to have a "stranger" to the appeal—for example, a work colleague with no prior involvement in the case—read the appellant's and respondent's briefs for a fresh perspective on these important questions.
After determining what you want to say in your reply brief, the next issue is the order in which you want to say it. If the respondent's counsel is a skillful appellate advocate, he or she will have organized the respondent's brief by presenting his or her strongest arguments first, regardless of the order of the points in the opening appellant's brief. For this reason, it is usually a mistake to adopt the organization of the respondent's brief by replying to each of the respondent's arguments in the order in which they appear. Rather, a reply brief generally should follow the same organizational structure of the opening appellant's brief as a means of refocusing the court on the principal issues.
Once the content and order of the reply points has been established, several basic considerations should be kept in mind in writing the reply brief. The following list is illustrative, not exhaustive.
First, a reply brief should not attempt to correct every point of disagreement or minor factual inaccuracy in the respondent's brief. Rather, it should address and correct material factual misstatements made by the respondent. There are creative ways of doing so. For example, if the respondent's brief misstates one or more critical facts, a chart or table in the format at right can be used to challenge such misstatements in a way that is visually attractive, easy to understand and effective in arguing the case on the basis of the record facts.
Second, a reply brief should not address every legal argument made by the respondent, no matter how peripheral. Rather, it should concentrate on the key legal issues in the case, not only rebutting the respondent's principal arguments, but also re-emphasizing the appellant's principal arguments. Again, the goals are to identify and answer the questions that the court will most likely have after reading the respondent's brief, to reply to arguments that ostensibly undercut the appellant's position, and to restore the court's focus to the appellant's main arguments in a concise and non-repetitive manner.
Third, a reply brief should not distinguish every case cited by the respondent (all of which should immediately be cite- and substance-checked upon receipt of the respondent's brief). Generally, only the respondent's "lead" authorities warrant detailed analysis. If the respondent's brief string cites multiple cases standing for the same proposition, then the reply brief should address them on a global rather than individual basis. A reply brief is a useful vehicle for bringing to the court's attention a controlling or persuasive case decided after the filing of the appellant's main brief. This underscores the importance of continuing to research the law up to the date of filing of the reply brief, and then, right up to the date of oral argument.
Finally, in the case of a cross-appeal, the appellant-respondent generally files a combined responsive brief, i.e., a reply on the main appeal and answer to the cross-appeal in one document. It is advisable to address the cross-appeal in the last section of any such combined brief because a disposition in the appellant's favor on the main appeal may well render the cross-appeal academic. In drafting an answer to the cross-appeal, the appellant-respondent should adopt a respondent's mind-set for purposes of the cross-appeal. For example, as a preliminary matter, the court's jurisdiction to entertain the cross-appeal should be considered: Is the cross-appellant truly "aggrieved" by the order or judgment from which the cross-appeal has been taken, or is the cross-appeal a pretext for the cross-appellant to gain the last word through a reply brief on the cross-appeal? If the latter, a motion to dismiss the cross-appeal is in order.
Scope of a Reply Brief
While it may seem obvious, it is worth stressing that the proper purpose of a reply brief is to reply, not to present new arguments or matters at a time when the other party can no longer respond to them. As the court stated in the oft-cited State Farm Fire and Casualty Co. v. LiMauro decision, "[i]t is beyond cavil that raising a new substantive issue of law for the first time in a reply brief is improper,"6 and this is one of the principal grounds for litigation concerning the proper scope of reply briefs.7 Even arguments of a constitutional dimension will be deemed waived when improperly raised for the first time in a reply brief.8
There is no hard and fast rule as to what constitutes a truly "new" substantive argument in a reply brief. After the submission of the main motion papers to the lower court in State Farm, the plaintiff State Farm contended for the first time in reply papers that Florida law, not New York law, governed the case. The trial court apparently ignored this new argument by applying New York law.
Neither State Farm's pre-argument statement nor its main appellate brief pressed the choice of law issue. In its reply brief, however, State Farm relied upon Florida law. The respondent moved to strike the references to Florida law in the reply brief, contending that State Farm Fire should not be allowed to raise the applicability of Florida law for the first time in reply when there was no opportunity to respond. The Appellate Division denied the motion to strike on the ground that State Farm had merely cited Florida law as persuasive, not controlling, authority:
We need not, however, consider whether raising in a reply brief an issue submitted in reply at [the trial court] constitutes raising a new issue for the first time, for a reading of the reply brief convinces us that State Farm Fire is resigned to the application of New York law, and merely cites Florida law as persuasive, not controlling, authority. As such, there was nothing improper about the references, and the motion to strike is denied.9
There are circumstances in which courts will permit new matters, such as matters of public record, to be asserted in a reply brief. For example, in High v. City of White Plains,10 the cross-respondent moved to strike certain exhibits annexed to the cross-appellant's reply brief on the ground that those exhibits contained matters outside the record. The motion was held in abeyance and referred to the justices hearing the appeal for determination upon the argument or submission of the appeal. The court in High ultimately denied the motion to strike "since the exhibits at issue, although not submitted to the court of first instance, are matters of public record that may be judicially noticed."
A motion to strike is the proper remedy for an improper reply brief.11 In some instances, the court may strike only the offending portion of an otherwise acceptable reply brief. In Brosnan v. Behette,12 for example, the court granted the respondent's motion "to strike Point VI of the appellants' reply brief on the ground that it raises an issue not raised in the appellants' main brief." Alternatively, the court may simply disregard the new arguments or matters raised for the first time in a reply brief, even without a motion to strike. This was the result in Turner v. Canale,13 where the court stated, "[w]e note in addition that the contentions raised for the first time in plaintiff's reply brief are not properly before this Court."
I am surprised how many law firms have no website. Today, not having a website places a lawyer at a distinct disadvantage. Having a website gives you the opportunity to reach potential clients and marks you as someone who is up-to-date.
In the October issue of the Michigan Bar Journal, attorney John Cushman offers a comprehensive guide to creating a law firm website—everything from registering your domain name to deciding on the site’s content. Here is a small snippet:
What Should Your Website Include?
Your website is like your résumé. Put in
the time to get it right. Here are some steps
to decide what your website should include:
• What do your competitors do? Make
a list of other sites advertising the same
services. What do their home pages include?
What images do they use? Do
they use the first or third person? What
information do they provide? How can
you contact them? Do you trust them after
visiting their sites?
• What do you want from your visitors?
Think about what you want visitors
to your site to do: Call you or e-mail
you? Sign up for your blog? Recommend
you to friends? Everything on your site
should be designed to serve a purpose
you have previously established.
• What do your visitors want from you?
Think about the possible backgrounds
of those visiting your site: “I’m thinking
of getting a divorce and I’m not sure
what happens next.” “Someone referred
me to you and I want to check you out
before I contact you.” “I’m starting a business
and I need to get incorporated without
spending a lot of money.”
You have only a matter of seconds before
visitors decide to give up and go elsewhere.
Does your website help visitors find what
they’re looking for as quickly as possible?
Also remember that your website must
comply with the ethical rules for each jurisdiction
where you practice.
There is an article in the New York Times concerning the high attrition rate among engineering and math majors in college. The article states, "Studies have found that roughly 40 percent of students planning engineering and science majors end up switching to other subjects or failing to get any degree. . . . That is twice the combined attrition rate of all other majors." The article attributes this to competition, difficulty of subject matter, dryness, and not being willing to work hard enough. Another factor might be high grades in other fields. "It is no surprise that grades are lower in math and science, where the answers are clear-cut and there are no bonus points for flair." In addition, "Professors also say they are strict because science and engineering courses build on one another, and a student who fails to absorb the key lessons in one class will flounder in the next." Possible solutions include more classroom interaction and more project-based learning.
We have all these "causes" (competition, difficulty, dryness, laziness, grade inflation) in law school, but they manifest themselves differently in law school. While law schools generally do not have high attrition rates, they do have problems with students net surfing in class, taking easier classes to raise their GPAs, not working hard enough, etc. The solutions are similar, especially the comment about project-based learning. Law schools need to have more micro-skills exercises in the first-year, such as exercises in analogies, synthesis, and rule-based reasoning, then more courses in the second and third years that are centered around practice-based problems.