Saturday, November 19, 2011
The New York Times has another article on legal eduction, this time criticizing law schools for not teaching practical skills. The author bases his article mainly on discussions with law firms. While the article has some significant gaps, I agree that its basic message is correct--that law schools do not produce practice-ready attorneys.
First, the gaps. While the article mentions clinics, it ignores legal writing, which all law schools require, as well as advanced writing courses. It also leaves out other skills courses that some law schools have recently added, such as contract drafting and other transactional courses. It fails to mention the Carnegie Report or CLEA's Best Practices, both of which advocate more practical training. It doesn't mention the Legal Writing Institute, the Association of Legal Writing Directors, and other groups that have advocated change in the legal profession and held conferences where new approaches to legal skills have been presented. Although the article criticizes legal scholarship, it fails to mention that many of us in the legal skills area produce practical scholarship, as one can see from SSRN or posts on this blog.
Despite the above, more still needs to be done. Changes need to be made in first-year doctrinal courses. These courses should include miniskills, such as exercises in case synthesis, rule-based reasoning, reasoning by analogy, distinguishing cases, and dealing with ambiguity. (Law is more than analysis of single cases!) As I mentioned earlier this week, some first year courses, especially contracts, could include drafting exercises. As Scott Burnham has observed, "I find that, in fact, drafting required the same higher-level reasoning processes as case analysis."
The second and third years of law school should build on the miniskills learned in the first year. The NYT article mentions that lawyers coming into large firms do not know how to do mergers. Most law schools have courses in mergers and acquisitions. Why can't these courses actually teach students to do mergers and acquisitions? You should learn how to write wills in wills class, an estate plan in an estate planning class, and corporate documents in a corporations class.
Despite the efforts of the Carnegie Report, Best Practices, LWI, ALWD, etc., there has been and will continue to be resistance to change, both by law professors and students. Since we need to make changes in all law school classes, all professors will have to change their teaching methods, but I think a lot of this can be accomplished by a new type of casebook--a casebook that includes cases, skills exercises, drafting exercises, and practical problems. (Carolina Academic Press is starting to put out some skills-oriented casebooks, but we need many more.) Of course, we have to also convince our students to take these courses. While such courses might require more work on the students' part, they should also be more interesting.
It is well know that there is a law school crisis. The posting below this one notes that LSAT test takers were down 16.9% last month. Those law schools that don't adapt to new conditions may not exist much longer.
(hat tip: Ruth Anne Robbins)
Number of LSAT test-takers down 16.9% in October; Professor Brian Tamanaha reiterates warning to law schools
From the blog Balkinization:
More Ominous Signs of the Coming Crunch for Law Schools
In June I wrote a post about the coming crunch for law schools, which asserted that law schools should anticipate a significant decline in the number of applicants in coming years. This will be especially problematic because law schools have substantially increased the size of their faculties in the past decade, making it hard to trim expenses to meet a decline in revenues. As the number of applicants falls, a significant proportion of law schools will experience a drop in the quality of students or a fall in revenue, and many will suffer both simultaneously.
Three recent signs indicate that this will happen more quickly and to a greater degree than I suggested in the post. The first indication is the disclosure that every student in the 2011 entering class of Illinois law school, including students admitted off the wait list, received tuition discounts. When everyone gets a scholarship, that constitutes a de facto tuition reduction, an indication that a law school is having trouble filling its seats at the list price. Given that Illinois is an excellent law school, it is likely that other schools are in the same position.
The second sign is more serious. The October 2011 LSAT, which is the highest volume test for people considering law school, had 16.9% fewer takers than the previous year. It was the lowest number of people to sit for the October exam in a decade. And it was the fifth straight LSAT administered to show a substantial decline from the same test the year before. The two most recent exams—June and October—had the largest year-to-year declines, 18.7% and 16.9%, for those respective months as far back as the LSAC chart goes (1988-89).
The third sign is perhaps the most alarming for law schools: the yield of applicants to test takers has been falling steadily in recent years. At least since 1995 (earlier statistics are not available), between 75% and 80% of the people who take the LSAT have gone on to apply to law school. It makes sense that a high proportion of people who take the test would apply because preparing for and taking the test involves a substantial commitment of time and money. Beginning in 2000-01, however, when 80% of the people who took the test applied to law school, the yield of applicants to test-takers has declined every year but one (2003-04). In 2010 and 2011, only around 63% of the people who took the test applied to law school.
This sustained decline in yield suggests that applicants to law school are rationally responding to the extraordinary emphasis law schools place on LSAT scores—which determine the range of law schools a prospective student will be admitted to as well as the price a student will pay. Apparently, more and more prospective students who don’t achieve their target LSAT score are passing on law school. This decline in yield is perhaps also an indication that the yearly increase in law school tuition has been suppressing demand, although it was not visible on the surface. What's telling about this decline is that it began long before the current legal recession and all the bad news about law schools.
Law schools are caught in the grip of two separate, reinforcing declines that portend a severe contraction in the immediate future: fewer people are taking the LSAT test, and fewer people who take the test go on to apply to law school. (It is possible that a sharp decline in the former will lead to a rise in the latter, but that has not happened so far.) A painful dose of economic discipline for law schools is just around the corner.
Hat tip to Tax Prof Blog.
According to jury consultant Melissa Gomez, it depends. She has found that home towners have an advantage in Pittsburgh, but much less of an advantage, if any, in New York City. More important is how the out-of-towners interact with the venue:
In my practice, I have found that being the attorney from the outside means you have to do your homework to understand the people in the venue as opposed to being like them. It is not that you need to change who you are or who your client is. In fact, trying too hard to fit in may backfire. Most jurors from Texas will notice that those cowboy boots that attorney from Philadelphia is wearing are fresh from the box. Instead, understanding a venue is more about showing respect for it by learning and following the court procedures, and understanding the folks well enough to know what kind of argumentative tactics will fly and what will not (i.e., you may get away with a more directly confrontational cross examination in New York City than, say, Savannah, Ga.).
Here’s the posting from the Legal Intelligencer blog.
Friday, November 18, 2011
This advice comes to us by way of the great blog An Associate's Mind:
Lawyers very often need to express complex ideas and concepts in motions, briefs, letters, etc. And often times the best way to communicate legal concepts is through the use of “Inside baseball” language. Given the correct audience (other lawyers/judges) using a phrase such as res judicata is likely the best way to communicate a complex concept quickly and clearly because the writer and the audience are members of the same in-group.
Using such language to a client not familiar with the law only makes the lawyer seem intimidating or unfriendly. Instead of fostering communication with your client, it’s actually obfuscating the matter. Know your audience. Use language effectively to communicate your ideas to your specific audience with your goal (education, persuasion, etc) in mind.
[Consider also the advice found in George Orwell's] 1946 essay Politics and the English Language:
- Never use a metaphor, simile or other figure of speech which you are used to seeing in print.
- Never use a long word where a short one will do.
- If it is possible to cut a word out, always cut it out.
- Never use the passive where you can use the active.
- Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
- Break any of these rules sooner than say anything barbarous.
Hat tip to ATL.
Diversity in Law Firms: The Numbers for Minorities Rise Slightly. The Numbers for Women Decline Slightly
From 2009 to 2010, the overall representation of women and minorities in law firms decreased. According to the latest findings of NALP, the National Association for Legal Career Profession, the representation of minorities has increased this past year while the representation of women has declined slightly. Still these changes are far from dramatic.
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.
DailyFinance.com posted this article “Internet Insecurity: The 25 Worst Passwords of 2011”.
“You've got locks on your doors and maybe even an alarm system guarding your home. But all that stands between criminals and your bank account information is the word "password." Sound familiar? "Password," "123456" and, weirdly, "monkey" are among the 25 worst passwords of the year, according to SplashData, a private company that sells security services and password software. “
Here is the list:
Thursday, November 17, 2011
Volume 2 of the Pace Envtl. L. Rev. Online Companion (2011) is devoted to "Best Practices for Skill Building in Teaching Land Use, Environmental, and Sustainable Law" and includes several articles that may be of interested to readers of this blog.
For instance, Professor Michael Burger (Roger Williams) has an article called Teaching Intrapersonal Intelligence as a Lawyering Skill: Introducing Values Systems into the Environmental Law Syllabus. From the introduction:
The ranges and types of problems with traditional law school curricula, pedagogies, and learning cultures are well-rehearsed, and have been framed, narrated, and analyzed in a number of prominent venues, along with suggested improvements and proposals for systemic reform. This Essay addresses one aspect of the ongoing and pervasive critique: the need to develop in law students the diverse intellectual competencies that the practice of law requires. Working within the framework of Professor Howard Gardner’s theory of multiple intelligences, I argue that intrapersonal intelligence and the self-reflexive analytic process it invokes are important tools in the practicing lawyer’s toolbox, and describe an in-class/take-home/online exercise specifically designed to challenge and teach to students’ intrapersonal intelligence (the “Values Systems Exercise”). The Values Systems Exercise pairs nicely with intrapersonal intelligence—a capacity for self-reflection often overlooked in law school—offering the opportunity to get students thinking about how their own predispositions influence their legal interpretations and policy prescriptions. The exercise is conducted during and lasses of the semester in a survey course in Environmental Law.
Part II of this Essay begins by defining intrapersonal intelligence and identifying its salience to legal education and practice. It then introduces the andragogical problems the Values Systems Exercise attempts to answer. These include problems particular to environmental law as a subject—establishing a conceptual framework and common vocabulary for the perspectives offered by economics, ecology, and ethics (the values systems in the Values Systems Exercise)—as well as problems common to legal education as a whole, such as accounting for a diversity of student goals and learning styles, and creating a classroom dynamic conducive to productive discussion. Part III describes the Exercise in detail, addressing issues of design and offering examples of its outcomes. Part IV concludes with some suggestions of ways to improve the exercise in future iterations.
Another article of interest is Now We're Cooking!: Adding Practical Application to the Recipe for Teaching Sustainability by Professor Jonathan Rosenbloom (Drake). From the abstract:
This essay explores the benefits and challenges presented by incorporating experiential learning into the Drake University Law School course, Sustainability & Its Application. The course combined academic inquiry with actual, practical experience to facilitate student professional development, enhance practice skills, and explore a new and rapidly developing area of law concerning sustainability. This essay provides the core details of the course, and hopefully serves as a guideline for similar courses.
Hat tip to Best Practices for Legal Education Blog.
From an article co-authored by a Cravath partner and U.S.D.C. (S.D.N.Y.) Judge Richard Sullivan published in the New York Law Journal entitled Opening to Win: Seven Tips for Delivering an Effective Opening Statement. From the introduction:
While the opening statement occupies a small portion of most trials, it is difficult to overstate its importance in a jury trial. Done well, a lawyer's opening statement can shape the way jurors receive the evidence and create a lasting positive impression. Done poorly, an opening statement can put counsel at an early disadvantage from which it may be difficult to recover. Although there is no single formula for every case, this article outlines seven tips for delivering a winning opening statement.
Recognize Its Importance
Crafting a convincing opening statement begins with appreciating its importance. Because the opening statement occupies a small portion of most trials and what counsel says is not evidence, the opening statement can be given short shrift. Some lawyers relegate preparing their opening statement to the nights immediately before trial, in between prepping witnesses and finalizing cross-examination outlines, as exemplified by Vincent Gambini's opening in the movie My Cousin Vinny: "Uh…everything that guy just said is bullsh*t. Thank you."
But at least in a close case, a trial can be won or lost in the opening. Jurors are never as attentive as during opening statements. And research and experience show that jurors dislike remaining neutral.1 They want to find the "good guy" and the "bad guy" rapidly, in the same way they decide almost immediately which movie character or sports team to root for. Once jurors reach a preliminary conclusion about which side they support, it can be difficult for them to change their preference, even in the face of contradictory evidence. A good opening statement can serve as the lens through which jurors see the evidence as it comes in over the course of the trial. As such, it is critical to communicate to the jury your story of the case and the most persuasive evidence that supports it as quickly as possible.
Hat tip to the ABA Journal blog.
Via the Legal Scholarship Blog:
The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy will present Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination April 23, 2012 at New York Law School. The “symposium that will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases and explore potential strategies to reverse this growing trend.”
I recently read through a book with advice on how to shorten legal documents. Although some suggestions are worthwhile, others give me pause. For example: “Punctuate and hyphenate conservatively” (i.e. eliminate spaces in abbreviations, hyphens in compound adjectives, and spaces on either sides of dashes)“Revise an itemized list into an unitemized list.” “Eliminate forecast statements in introductions.”
Quite often these changes reduce the word and character counts only minimally. I think the better way is to take a deep breath, cut out whole paragraphs. If the paragraphs include vital information, rewrite them more concisely. This method is more painful and sometimes more time consuming. However, it will produce a better product.
Wednesday, November 16, 2011
Like CUNY and UMKC before it, Pace will launch next September a solo practitioner incubator project to help new law grads learn how to run their own firms. In this instance, however, participants in the project will provide legal representation to low income clients. Given the large number of new law grads looking for work, it makes perfect sense to match them up with people who need legal help but otherwise can't afford it (although obtaining quality legal representation is also beyond the means of many middle class families too). Not incidentally, the school may also get a boost to its NALP employment stats. Sounds like a win-win all around.
Here's the skinny courtesy of the National Law Journal:
The Pace Community Law Practice is set to open in September 2012, the school announced, and will employ between five and seven recent Pace graduates. Those participants will offer low-cost legal assistance in areas including immigration, family and housing law while attending seminars on obtaining and billing clients, malpractice insurance and setting up a law office.
"What's important to us is that they have good supervision," said Jennifer Friedman, director of the Public Law Center at Pace, who has been spearheading the incubator project. "These are recent law graduates representing clients themselves for the first time."
Pace announced the initiative on Nov. 11. At least three other law schools have launched solo incubators during the past five years, including the City University of New York School of Law, The University of Missouri-Kansas City School of Law and the University of Maryland School of Law. A handful of additional schools are considering adding similar programs.
The programs pair graduates with mentors and other institutional support and offer free or low-cost office space.
The financial arrangements vary, but participants tend to be paid, at least in part, with money channeled through the law school. At Pace, they will be classified as fellows and paid by the law school, although compensation levels have not yet been determined, Friedman said. Their work likely will be a combination of "low-bono" matters, in which clients pay on a sliding scale based on their income, and grant-funded legal assistance projects, she said.
The program will be housed in space on the law school campus in White Plains, N.Y., and participants will be able to work there for one or two years.
"Creating this public-interest law practice to serve our community during a time of need, and at the same time utilizing the skills of our extremely capable and socially committed recent graduates, perfectly captures what Pace Law School is all about," said Dean Michelle Simon.
Pace has already raised $100,000 from David Anthony Pope, president and chief executive officer of the Generoso Pope Foundation, to help launch the incubator. The school is continuing to raise money for the project.
According to an article posted on SSRN entitled 2011 Law Firm Legal Research Requirements for New Attorneys by Patrick Meyer, a law librarian and adjunct professor at Thomas Jefferson School of Law, employers want law schools to continue to integrate book and electronic legal research instruction.
From the introduction:
This article summarizes results from the author's recent law firm legal research survey, which determined what research functions, and in what formats, law firms require new hires to be proficient. Such information effectively answers the question of what sources and types of research should be taught in an integrated fashion.
Recent conclusions by governing bodies and scholars that law schools should focus on preparing students for law practice match perfectly with what law firm survey results indicate regarding legal research. Firms need schools to integrate the teaching of online and print-based research resources and to emphasize cost-effective research. Survey results show that the following federal and state specific print-based resources should be taught in an integrated manner: legislative codes, secondary source materials, reporters, administrative codes and digests. This is a challenge for legal writing and advanced legal research professors, where class time is already divided between a myriad of tasks. But such is a noble endeavor. As one author puts it, “[i]t may not be possible to prepare students fully for the practice of law in three years, but law schools can come much closer than they are doing.” Best practices for law schools should include changing from a test-centered outcome base to more of a hands-on input based means of instruction.
Hat tip to Legal Research Plus.
In October 2010, wordsmith William Zinsser returned to his prep school, Deerfield Academy, and gave the students his recipe for leading an interesting life: Do interesting things. When your career stops being interesting, change careers. Here is an excerpt:
In 1993 I described those successive uprootings in a commencement talk at Wesleyan University. My message to the graduating seniors was: change is tonic. Afterward, three professors in cap and gown came up to me, and one of them said, “That does it! I’m getting out of this dead-ass job.” Wesleyan later sent my talk to all its alumni, and I still hear from some of them. They want to tell me about career changes they made that reinvigorated their lives in ways they never dared to consider. Think about your life as a process and the product will take care of itself.
Zinsser’s speech is entertaining and well worth reading. As for me, my job continues to be endlessly interesting and rewarding. I plan on sticking with it.
As we approach the end of the semester, when students are working on papers, briefs, and course outlines, it is good to be reminded to back up your documents.
This post at Lawyerist.com explains why this is a good habit to take with you into your life as a practitioner. After experiencing a system failure, the author offers this advice:
"I could have avoided all of my headaches by doing a true and complete backup by creating a complete image of my hard drive. Acronis True Image Home 2012 will back up everything on a single machine as if nothing ever happened. It creates an image of your hard drive so if something goes wrong you can reinstall everything – programs, applications, data, documents, and settings – the works! There are also versions for larger businesses. Another similar option is Norton Ghost.
Although I might not rely on this as my sole backup and disaster planning solution, given my experience this week, it is certainly one thing I won’t do without in the future."
Law students should at the very least be backing up their documents on a university server and perhaps a flash drive too. Better safe than sorry!
Interesting Article Addressing Effective Legal Thinking and Exam Taking (Just in Time for Exam Season)
As all of you know, law school exam season is just around the corner. To that end, Professor Donald J. Kochan from Champan University School of Law has written an interesting article that will be published in an upcoming addition of the Nevada Law Journal. The article is entitled, “Thinking” in a Deweyan Perspective: The Law School Exam as a Case Study for Thinking in Lawyering.
In the article Professor Kochan posits the following,
"As creatures of thought, we are thinking all the time, but that does not necessarily mean that we are thinking well. Answering the law school exam, like solving any problem, requires that the student exercise thinking in an effective and productive manner. This Article provides some guidance in that pursuit. Using John Dewey’s suspended conclusion concept for effective thinking as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam—to think through the exam approach. The second, more subtle, purpose is to demonstrate that the law school exam can serve as a case study in the effectiveness of certain thinking tools that have much broader application. For that reason, this Article is not your typical “how-to” guide, but instead provides guidance critically and generally applicable to the thinking enterprise itself."
For the full article see, http://ssrn.com/abstract=1954291
Today marks the 16th anniversary of my heart transplant. Hard to believe. At the time, I wondered how long the transplant would keep me alive, but I am expected to live a normal life span.
The big issue in organ donation is the lack of organs for those who need them. Please sign up as a potential donor.
Tuesday, November 15, 2011
In his book, Thinking, Slow and Fast, Daniel Kahneman observes that the acquisition of expertise in complex tasks (chess, basketball, firefighting) does not involve a single skill, but rather a combination of many miniskills. A chess master needs at least 10,000 hours of practice to attain the highest level of performance. In music, novice performers spend hours studying scales and other types of patterns. It is not until a performer has mastered the basic skills that he or she can go on to what is really important in music--interpretation.
The same is true in law. (I have previously called these fundamental legal skills.) Our students need to master the miniskills, such as case analysis, case synthesis, rule-based reasoning, analogical reasoning, statutory interpretation, etc. in the first-year. Yet, the socratic method does not teach most of these basic skills particularly well. As I have stated before, we need to drill our students in these skills and our students need to work on them outside of class. Remember our students only have three years in law school compared to what a chess master or musician puts in.
There’s a growing body of articles about Twitter for Attorneys and others in the legal professions. For your consideration:
- Twitter for Lawyers by Gina F. Rubel, The Legal Intelligencer. Mar 2009
- Lawyers Hop on the Twitter Bandwagon by Sindya Bhanoo, The Industry Standard. Feb 2009
- Aren’t You on Twitter Yet? by Lance Godard. Feb 2009
- To Twitter or Not to Twitter? by Carolyn Elefant. Feb 2009
- The Revolution will not be Televised, it will be Tweeted. by Rodney Dowell. Feb 2009
- Twitter lures lawyers, helps them drum up business by Alison Grant. Jan 2009
- Twitter for Lawyers: Valuable Marketing Tool or Waste of Time? by Bryan McKae. Jan 2009
- Twitter 101 for Lawyers by Niki Black. Nov. 2008
- How to use Twitter as a Lawyer by Grant Griffiths. Sep 2008
- Lawyer Marketing with Twitter has arrived by Kevin O’Keefe. May 2008.
Resources & Tools:
- Legal Tweets blog: tracks Twitter conversations on legal topics
- Securities Docket “BigLaw Lawyers on Twitter”
- 145 lawyers and legal professionals to follow on Twitter by Adrian Lurssen. Sep 2008 (List has since grown to 600+).
That's the message from this post at the Lawyerist blog.
Networking during law school is easy to avoid, but doing so is a huge mistake. Most students will take time away from their academic obligations in order to travel to a long-shot interview. Those same students should be focusing on taking time at home (even when law school is a temporary home) to meet practicing lawyers and judges. Look to your professors, especially adjuncts, for additional community ties. Talk to the students who are from your school’s city and ask them to introduce you to lawyers they know locally. Even if you don’t plan to practice where you attend school, the practitioners in your school’s town will likely be the easiest to access. Take advantage of their expertise.
On adjusting expectations:
My law school experience was that career services and my classmates alike over-emphasized the importance of trying to get a big-firm job. I was quite surprised when my school’s administration later shared the statistic that the majority of our students ended up in firms with between 5 and 15 attorneys. While that may not yet be the reality at your school, it’s worth thinking early about alternatives to big-firm practice: small firms, and public service.
Both small firm life and public service may allow a lifestyle that’s less concerned with billable hours. Government employees may work fewer hours than their private-sector counterparts, while good benefits packages help equalize any relatively lower pay. Small firm practice will allow you to interact directly with your clients, which can be quite rewarding. Public service will enable you to work on issues closer to your heart.
Finally, there’s always the opportunity of solo practice, should you be brave enough to strike out on your own.
You can continue reading here.
According to the Lynn Gaertner-Johnson's Business Writing blog, this is the most common writing error she sees.
When people sign up for my writing courses, I ask them, among other things, what kinds of business messages they write. Their responses reveal the error:
I write email, reports, memo's, and presentations.
I write memo's requesting funds for capital purchases.
The plural of memo is memos--not memo's. We should all write memos.
The word memo's can be a correct possessive form. Examples:
I could not understand the memo's intent.
The memo's format was unconventional.
Grammar purists might frown at the possessive form used with an inanimate object, which my two examples directly above use. They would prefer these constructions:
I could not understand the intent of the memo. [OR] I could not understand the writer's intent.
The format of the memo was unconventional.
Despite the preferences of purists, possessive forms with inanimate objects are fine unless the resulting expression is awkward. For example, "the bottom of the barrel" and "the foot of the bed" are common phrases. "The barrel's bottom" and "the bed's foot" would be awkward replacements.
If you are someone who mistakenly uses memo's, set your software to automatically correct it to memos. If everyone does that, I will be able to report a new most common error in 2012.