Saturday, December 3, 2011
By Professor Herwig J. Schlunk (Vanderbilt) and available here on SSRN. An excerpt:
In this essay, I revisit the analysis I undertook in 2009 when I first asked whether a law degree is a good investment, albeit making use of 2011 data and perceptions. As I noted then, this is not a question that has an easy answer, nor indeed a single answer. For any given undergraduate, the answer will depend upon a host of factors including her skill set, her opportunity set, the out-of-pocket costs she would incur in attending law school, and so on. These factors can vary widely. A different answer might well obtain for an English major from the University of Alabama who will be required to pay full freight at Notre Dame and a mathematics major from Harvard University who is offered a full scholarship to Yale.
Since no single answer exists, I again will not offer one. Rather, by exposing the factors that come into play I hope to spur the current generation of potential law school attendees to think about the question in an economically rational way, as one of making an investment. If your law school education were a stock or a bond, offered in the marketplace, would you buy it? Should you buy it? Why or why not?
My methodology is as follows. First, I identify the costs of attending law school. These are two: the opportunity cost of not entering the workforce immediately after graduation from college, and the out-of-pocket costs, primarily tuition, fees and books, inherent in attending law school. Based on these costs, I calculate the annuity-like return that must be achieved to recover the costs. This process is more complicated that it might seem, as it importantly requires isolation of the true benefits in terms of compensation offered by a law degree and the identification of an appropriate discount rate for converting such incremental compensation to net present value.
. . . .
The current state of the employment market continues to be one of turmoil. Under the assumption that this may be the new normal, I have reflected such turmoil in updating the analysis I first undertook in my 2009 Mamas essay.
My assessment continues to be much the same: law school is a very risky (and expensive) investment; it should not be entered into lightly. However, as I have already mentioned, and worth repeating again, each potential student’s calculus will be based on a host of factors unique to him or her. For some, like an English major (relatively low opportunity costs) who gets some scholarship assistance (somewhat lower out-of-pocket costs) to attend Harvard Law School (relatively high pay-off), the investment in a legal education is almost surely a no-brainer. Moreover, even for individuals facing a more challenging calculus, it may be the case that a legal education confers benefits beyond the incremental compensation that I have used to analyze the pure investment decision. For example, a law degree opens up many more avenues of potential employment, including importantly self-employment, than does a typical undergraduate degree; lawyers are found in all parts of the workforce performing all manner of jobs. Does this imply, perhaps, that some option value should be added to a law degree’s payoffs? If so, how would one measure such option value? And lastly, of course, a law degree is a professional degree; it confers considerable prestige. But alas, as I first pointed out two years ago, you cannot eat prestige.
Hat tip to the TaxProf Blog.
Just what is an ambiguous series modifier? Here is an example:
For over three years, the Michigan courts
have been trying to clear up ambiguity
caused by a trailing modifier. Michigan law
imposes a duty on a city to keep its highways
in reasonable repair. If the city breaches its
duty, a plaintiff may recover for injuries suffered
“on the highway.” The courts have been
considering the reach of “on the highway”:
“Highway”. . . includes bridges, sidewalks,
trailways, crosswalks, and culverts on the
highway.8 Does on the highway modify culverts only,
or the entire series? The courts have gone
back and forth on the answer.
In the November 2011 issue of the Michigan Bar Journal, Thomas Myers has published an excellent article illustrating the problems that arise when it is unclear whether a word could modify one item in a series or all the items. Examples abound.
Friday, December 2, 2011
Below is a brief interview with Richard Susskind, author of The End of Lawyers?, in which he says that corporate boards are putting intense pressure on in-house counsel to reduce the amount they spend on legal work. He's not talking about 10% cost savings; it's more like 30-40%. According to Susskind, the only way to reduce expenditures by such a large amount is for in-house departments to fundamentally change the way they source legal work. That means moving beyond the so-called "alternative fee arrangements" offered by traditional law firms and instead looking for alternatives to those firms like offshore legal services providers, attorney leasing arrangements and other temp legal service providers.
Hat tip to the ABA Journal column "The New Normal."
In a show of uniformity, three New York megafirms will be giving apparently identical year-end bonuses to their associates—Milbank Tweed, Cravath, and Skadden Arps. According to the Am Law Daily:
The Cravath scale for 2011—which runs from $7,500 for the class of 2010 to $37,500 for the class of 2004—is nearly identical to what it was in 2009 and 2010, though seventh-year associates are getting $2,500 more in extra pay this year than they did in the last two.
The bonus are not stupendous by big firm standards, but at least they are decent bonuses and larger than any law prof could expect. The $7,500 bonuses for the newbies are better than what Clark Griswold (Chevy Chase) initially received in National Lampoon’s Christmas Vacation—a year’s membership in the Jelly of the Month Club.
Last weekend, the New York Times published an editorial that advocated more practical training for law students. The editorial stated, ""Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers." The piece concluded, "In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide."
As one might expect, the editorial was vigorously attacked in the legal blogesphere. Brian Leiter believes that the structural problems in legal education cannot be solved by how law is taught. He wrote, "Can the NY Times editorial board really believe that a change in law school instructional methods will affect the availability of new jobs for lawyers, whether in the private or public sector?; That jobs will emerge from thin air to reward the newly-minted, deserving, and suitably re-educated young lawyers? Apparently so!" Paul Campos similarly wrote, "The problem, in short, is that at present ABA law schools are pumping out two graduates for every available legal job, and that the cost of acquiring what jobs there are has gotten far too high. No amount of pedagogical reform by itself is going to change that."
While I agree with the commentators that changing how we teach will not solve the structural problems in legal education, they are missing an important point: how we teach still needs to be reformed. In recent years, law schools have modified their curriculum some, but these changes have not gone far enough, as evidenced by the Carnegie Report and Best Practices. I am not advocating that the socratic method and case method should be eliminated, but that we should add additional methods to our teaching arsenal. Law teachers should include exercises on synthesize, rule-based reasoning, analogical reasoning, problem solving, etc. in their classes.
I know this can be done because I've seen it done at conferences. Last June, I saw numerous presentations at the ILTL conference in New York that integrated skills exercises into doctrinal courses. I have also seen many presentations at LWI and ALWD conferences that showed how to explicitly teach synthesis, deductive reasoning, analogies, and problem solving.
In particular, I saw a presentation at ILTL by Tonya Krause-Phelan entitled "Engaging and Assessing Our Students," which showed how to use skills exercises from the first day of criminal law. She started by using the socratic method to begin the process--to present the substantive law. She discussed the bases of criminal punishment, and we then looked at a sentencing statute. Next, we did an exercise based on a law school dress code that applied the bases of punishment. One person was the defendant, and the rest of the class was divided into prosecution or defense teams. Each of the teams discussed possible punishments, then they made their arguments before the class. She then critiqued the arguments. We did further follow-up exercises, including one that used an MBE-like question. My conclusion was that students who have teachers like Professor Krause-Phelan are more engaged, remember more, and understand better than those who have teachers who use the old methods.
There is no reason that similar methods cannot be used in all classes. The structure is simple. Teach the substantive law, then apply that substantive law by using skills and problem solving exercises. If we do this, then our students will understand legal reasoning and its application to problems much better, and they will be more pratice ready when they graduate from law school.
How do you get to Carnegie Hall? Practice, practice, practice. How do you get to be a skilled lawyer? Also, practice, practice, practice.
As the semester winds down, hopefully folks have some time for leisure reading. This post by Random House links to several “best” lists of 2011.
Here are just a few of the lists that may be of interest:
2011 Pulitzer Prize Winners
About.com’s Best Books of 2011
About.com’s Best Book-to-Film Adaptations of 2011
Amazon’s Best Books of 2011
Amazon’s Best Nonfiction Books of 2011
Amazon’s Best Fiction and Lit of 2011
Amazon’s Best Crafts Books of 2011
Amazon’s Best Cooking, Food & Wine Books of 2011
Boston Book Festival’s Favorite Books of 2011
Fiction Award Winners Best Books of 2011
Guardian’s Books of the Year 2011
Kirkus Reviews Best Fiction of 2011
Kirkus Reviews Best Mysteries of 2011
Kirkus Reviews Best Historical Fiction of 2011
Library Journal’s Best Books of 2011
Mystery People’s Top Ten Books of 2011
NPR’s Best Cookbooks of 2011
NY Times 100 Notable Books of 2011
Publishers Weekly Best Mysteries & Thrillers of 2011
Publishers Weekly Best Poetry Books of 2011
Publishers Weekly Top 10 Books of 2011
Telegraph’s Books of the Year 2011: Fiction
Wall St Journal’s Best Wine Books of 2011
Wall St Journal’s Best History Books of 2011
Thursday, December 1, 2011
I believe this is open to legal academics only. Tomorrow, Friday, December 2nd, at 1 P.M. EST, Professor Susan Daicoff, currently visiting at the University of Florida, will lead a teleconference discussion on The Soft Skills of Lawyering. A description of the topic is below. If you want more information as well as the call-in code, contact Professor Marjorie Silver at email@example.com.
Lawyers can no longer rely simply on excellent legal analysis and advocacy, written and oral communication skills, trial skills and traditional prelitigation negotiation and settlement. The legal profession is rife with commentary exploring how to be more marketable in the law profession of the future, given the rapid changes fostered by technological advances, disruptive concepts and strategies, the need for sustainability, and outsourcing. Law schools are under fire for providing students with unsatisfactory returns on investment, when students compare their employment prospects with the cost of legal education. A reevaluation of the competencies needed to be a 21st century lawyer, thus, seems appropriate. Some even assert that it is time to decisively redefine both the role of the lawyer and the content of legal education.
. . . .
Despite resistance to training in the “soft skills” of law practice, such as human relations skills, there is empirical evidence that the soft skills of law practice are precisely those skills that differentiate the most successful lawyers from the rest of the pack. For example, studies show that top-performing lawyers outstrip other lawyers in competencies such as stress management, independence, self-knowledge, general mood, problem solving, and interpersonal competencies. Practicing lawyers consistently list soft skills such as instilling others’ confidence in you, negotiation, counseling, obtaining and keeping clients, honesty, integrity, reliability, judgment, maturity, dealing effectively with others, motivation, continued professional development, tolerance and patience, understanding human behavior, self-confidence, listening, working cooperatively with others as part of a team, problem solving, networking within the profession, mediation, and strategic planning as essential for law practice, alongside more traditional skills such as legal analysis, legal writing, and oral advocacy.
. . . .
This program will first synthesize six empirical studies on the most important soft skills for lawyers. It will then propose unification of the twelve disciplines currently infusing these soft skills into the law, in the hope that unification will strengthen and hasten the integration of these skills in both the profession and the academy. Finally, proposals will be solicited for the most effective and efficient way to create a required law school course on the soft skills of lawyering.
Article forthcoming in Santa Clara Law Review, as part of the Santa Clara University Leadership Education Roundtable III: Leadership as a Fundamental Lawyering Skill, held at Santa Clara University Law School in March, 2011.
In case you didn't know, Finland is kicking our ass when it comes to educating secondary school students. Finnish students rank #1 in the world in both science and math. How do U.S. students measure up? They rank fourteenth and twenty-fourth, respectively.
So how does Finland - a country roughly the size of the metro Atlanta area with a population of 5 million - do it while spending significantly less on education than our country? A couple of reasons according to the report below from NBC news. Finland has created a culture that highly values an educated populace, parents take an active role in their children's education and, significantly, their best and brightest college grads choose to become teachers. The NBC report says that Finnish secondary school teachers are selected from the top 10% of all college grads while 47% of U.S. teachers come from the bottom third. Check it out:
Hat tip to Professor Braccialarghe
Now you can get hourly alerts about new case filings in all federal courts delivered to your computer, tablet or smartphone. Yowzers! It's called CourtLink and here's the press release from Lexis:
LexisNexis® Legal & Professional (www.lexisnexis.com), a leading provider of content and technology solutions, today announced that its CourtLink® service now offers hourly alerts on newly filed federal cases - making it the only court docket service to offer hourly alerts in all US District courts, along with the complaint document with highlighted user keywords.
"Since the economic downturn, law firms have been facing increasingly tougher competition to connect with prospects and clients quickly when important court actions occur so they can be assigned to the case," said Eliana Ferreira, director of product planning for dockets, briefs, pleadings and motions at LexisNexis Legal & Professional. "CourtLink hourly alerts considerably increase lawyers' chances of earning business and keeping clients by giving them the fastest access to new case filings so they can act before their competitors."
LexisNexis® CourtLink® connects lawyers and other legal professionals to the industry's largest, most comprehensive collection of U.S. federal and state court dockets, including content from all federal district courts ranging from 1989 to the present.
According to results of the ABA 2011 Legal Technology Survey report, more than two-thirds of lawyers in the largest U.S. law firms check their case alert services at least every day. The new, customizable CourtLink hourly alerts exceed this demand by delivering alerts for all U.S. District court civil cases every hour. Further, users can enhance their alerts with keywords found in the case complaints to highlight cases of interest. This unique feature is designed to help eliminate the need to retrieve and pay for unnecessary case filings.
"Adding to speed of delivery, CourtLink hourly alerts further help lawyers respond effectively to potential business because there are no limitations on the number of 'Natures of Suit' or courts that can be included. Additionally, there are no restrictions on the ability to share alerts regardless of whether colleagues have access to CourtLink," said Ferreira.
All CourtLink alerts are offered via the CourtLink service, as well as the CourtLink mobile applications for iPhone®, iPad® and Android? devices. There are no additional charges for using mobile versions.
Hat tip to Legal Research Plus.
Wednesday, November 30, 2011
If you don't already know, Fastcase is one of several start-ups offering an alternative to commercial legal research giants Lexis and Westlaw. What makes Fastcase unique is that more than 25 state bar associations offer the service free to members. Consequently, it's something law students should know about, especially those who plan to open their own shop since it's a good way to help lower overhead.
Here are a couple of tutorials you may enjoy yourself or pass along in class.
New skills-related scholarship: “Alternative Justifications for Academic Support II: How ‘Academic Support Across the Curriculum’ Helps Meet the Goals of the Carnegie Report and Best Practices”
This one is by Professor Louis N. Schultz (New England) and can be found via SSRN here. From the abstract:
In the wake of two momentous critiques of legal education, popularly known as the “Carnegie Report” and “Best Practices,” law schools are reconsidering certain basic assumptions about how we educate future lawyers. Even the most forward-thinking reformers, however, struggle with the details of how to implement many of the recommendations of those reports. Providing more formative assessment, for instance, is a laudable objective but one that has serious ramifications in terms of resource expenditures. This article seeks to provide a remedy for many of these struggles: “Academic Support Across the Curriculum.” This piece argues that the reconceptualization of an under-leveraged asset in many law schools, Academic Support Programs (ASPs), can help provide crucial improvements in legal education. By examining the reforms urged by the Carnegie Report and Best Practices, and by detailing the methods of certain exemplary ASPs throughout the country, this piece analyzes how ASPs just might be the answer to many tough questions.
According to one reliable survey by a consulting firm,”more law departments have boosted their overall budgets this year, and more are increasing their expenditures on outside counsel."
The survey said 56 percent of CLOs surveyed in October indicated that they had increased their law department budgets from 2010 to 2011, compared to 51 percent who did so the prior year. The median amount of the increase also rose, going from 6 percent in 2010 to 7 percent in 2011. Forty-six percent of law departments increased their outside expenditures, compared to 43 percent last year.
Maybe a glimmer of hope.
Student can click on the link to their casebook and review several CALI lessons based on the page numbers in their casebook. This would be a useful link for any course site!
I know that I’ll be publicizing it at our school.
Tuesday, November 29, 2011
I have posted a paper on SSRN called Responding to Opposing Arguments and Distinguishing Cases in Persuasive Writing at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966227 .
Abstract: Legal writing involves learning a number of "miniskills." To become an expert in legal writing, a student must learn case analysis, case synthesis, analogical reasoning, rule-based reasoning, small-scale organization, etc. Among these miniskills is the ability to respond to the opposition’s arguments, including the miniskill of distinguishing cases. These miniskills are vital to an expert brief.
In this paper, I will discuss how to respond to the otherside’s arguments and how to distinguish cases. Part II of the paper will examine when and where to respond to opposing arguments. It will explain where in the litigation to put counterargument and where in the brief. Part III will present ways to counter opposing arguments and unfavorable cases. This part will cover general ways to respond to opposing arguments, how to distinguish cases, and how to use rule-based reasoning. The final part will discuss persuasiveness in counterarguments.
As we're previously reported (here and here), Bloomberg Law has been "lawyering up" for more than a year, becoming one of largest employers of attorneys in NYC, in an effort to compete with Wexis for the lucrative commercial legal research business. According to this report from the Daily Beast, its recent acquisition of BNA is further evidence of its intent to eventually become the leading purveyor of legal information services.
As most of the news industry withers, Bloomberg is booming. Terminal money, which accounts for 80 percent of revenue, has helped the company hire more reporters and editors than anyone else on the planet—more than 2,700 of them—over the last 20 years, from Abuja, Nigeria, to Zagreb, Croatia. More recently it has launched powerful new tools for lobbyists, lawmakers, and other power brokers. Long averse to acquisitions, Bloomberg has also started buying up things it covets, like Businessweek magazine and, just this August, the legal-political research behemoth BNA. There is talk that the Financial Times might be its next meal.
. . . .When Bloomberg bought BNA for $990 million in August, most Americans had never heard of the Bureau of National Affairs or its 350 newsletters on topics like tax, health care, and labor. It doesn’t produce popular scoops—instead it churns out nuts-and-bolts information on things like an appeals-court judge’s ruling on a patent dispute; when the House Appropriations Committee will mark up an EPA funding bill; and how telecom giants will benefit from a moratorium on wireless taxes. Which means every lawyer, lobbyist, and law-maker in the capital depends on BNA’s proprietary data to do his or her job and gain an edge over competitors. From that angle, BNA is just the kind of company that Bloomberg— already a powerhouse among business insiders—could use to extend its power into new markets, in this case the “influencing community” inside the Beltway.
“It’s utterly logical,” says Steven Brill, the founder of Court TV and American Lawyer. “I lusted after BNA when I owned all my legal publications, because it’s very high-margin, high-priced, and specialized information.”
Hat tip to LegalResearchPlus.
Themselves according to this new study from Rutgers called Is it Really About Me? Message Content in Social Awareness Streams available in pdf here. According to the study, 80% of Twitter users are "Meformers" who focus on self-indulgent posts about themselves while the remaining 20% are "informers" who share information with their followers. Not surprisingly, the "informers" form the more interactive social media relationships which certainly has implications for those using Twitter as a marketing tool. Look outward, not inward. An excerpt:
Our findings suggest that the users in the “information sharing” group tend to be more conversational, posting mentions and replies to other users, and are more embedded in social interaction on Twitter, having more social contacts. We note that the direction of the causal relationship between information sharing behavior and extended social activity is not clear. One hypothesis is that informers prove more “interesting” and therefore attract followers; an alternative explanation is that informers seek readers and attention for their content and therefore make more use of Twitter’s social functions; or that an increased amount of followers encourages user to post additional (informative) content. A longitudinal study may help us address these alternatives.
Hat tip to The Business Insider.
Here's an excerpt of an interview with Marie Buckley, author of The Lawyers's Essential Guide to Writing from the December ABA newsletter. When asked to describe the best tips for improving one's legal writing, Ms. Buckley said that lawyers should "lead from the top."
Leading from the top is the key to strong, confident writing . . . . In a nutshell, it means that we should always lead with our conclusion.
Leading from the top tells our readers what to look for in the rest of the paper, much like the literary technique of foreshadowing. If we begin by telling our readers what is important, they will hunt for that information as they read and that information will click readily when we present it later. And because our readers know where the paper is going, we can spend less time on transitions later in the paper.
Leading from the top means different things in different mediums, but it works for all forms of writing. In email, for example, the subject line should lead for the whole message and the opening sentence is essential. In PowerPoint, earlier slides lead for later slides. In social media, the first encounter with the reader must lead for the rest of the written material.
Aside from the time-honored advice about avoiding legalese and jargon, what else can lawyers do to improve the quality of their writing? Ms. Buckley concurs with advice we've heard from other experts; write with confidence, express yourself concisely and always put the reader first.
Strong writing conveys who the writer is as a lawyer and a person. The writer’s voice and intellect sing through and the writing conveys confidence and fosters trust.
Strong writing always considers the readers’ needs. It makes reading as easy as possible because it speaks in a language our readers already know and love—plain English. It avoids jargon and legalese and it uses brave, short sentences.
Good writing focuses our readers’ attention for them because it leads from the top by stating the conclusion at the beginning. Each paragraph begins with a strong lead sentence. Our readers should be able to understand the paper by reading only the first sentence of every paragraph.
Strong writing is concise, but thorough. It always gives our readers choices. Headings and topic sentences allow readers to choose not to read a section or paragraph or to flag a passage for later reading. Strong writing also keeps our readers’ eyes moving. It establishes a measured pace and maintains that pace. The logic flows smoothly and the paper flows.
Finally, good writing looks clean, attractive and professional. Headings, white space and careful alignment all make our papers easier to read. Proximity is also an essential design principle and it simply requires that similar information be placed close together.
You can read the rest of Ms. Buckley's advice here.
Hat tip to Carli Pierson.
Monday, November 28, 2011
Part of an ongoing blog series called "You're the Boss: The Art of Running a Small Business."
To some, the phrase entrepreneurial lawyer may sound like an oxymoron, but we’ve just published an article by Eileen Zimmerman, reporting that more and more lawyers are choosing entrepreneurship over the partner track.
Margie R. Grossberg, a partner at the legal recruiting firm Major, Lindsey & Africa, said she saw an increasing number of associates choosing to start their own firms. “In the past, associates found if they worked really hard and did the right things, they made partner,” she said. “That’s not necessarily the case anymore — the odds are a lot slimmer and it’s also not as coveted as it once was.” These lawyers want more control over their futures, Ms. Grossberg said, and do not want to wait until they become partner to have meaningful relationships with clients.
The economy is another factor. “There have been thousands of associates laid off because of the recession,” said Eric A. Seeger, a principal at Altman Weil, a legal consultant. “We’re seeing more lawyers out there now taking risks, and that includes going out on their own.”
The paper then asks "what advice would you give a lawyer starting a firm?" Although readers have responded with the advice you might expect - create a "brand," keep overhead as low as possible, outsource all non-essential tasks, and hire a great paralegal - it's still worth scrolling through the suggestions here.
Although in this instance the use of photographs is humorous (in a sarcastic kind of way), no doubt as we'll see an increasing use of visuals in briefs and judicial opinions to communicate ideas more effectively than words alone as society at large relies more heavily on visuals to communicate.
From the ABA Journal blog:
A federal appeals court is criticizing lawyers who ignore or downplay precedent in an opinion that includes two photos to illustrate.
One picture is of an ostrich and the other is of a man dressed in a suit with his head buried in the sand.
The opinion by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals takes aim at the appeals filed in two separate cases for ignoring precedent, or for discussing the relevant case only a little.
The two appeals sought to overturn a judge’s rulings sending one case to courts in Mexico and the other to courts in Israeli under the doctrine of forum non conveniens. One involved a suit alleging an accident in Mexico was caused by defective tires. The other involved a suit claiming Israeli citizens were infected in Israel with contaminated blood products made for hemophiliacs.
In the tire case, the plaintiffs’ lawyer never cited relevant 7th Circuit precedent in the opening or reply brief, though the defendants cited the prior case and said the circumstances were nearly identical, the 7th Circuit opinion says. In the blood contamination case, the plaintiffs' lawyer discussed one precedent “a little,” and another precedent “not at all,” the opinion adds.
"Maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents," Posner wrote. "Whatever the reason, such advocacy is unacceptable."
And here's a link to the 7th Circuit opinion.
Update: link fixed