February 5, 2011
An interesting article about student authored notes
In recent decades, an inconclusive (even by the standards of academia!) debate has intermittently flared up within the legal academy, as professors, judges, and practitioners have gone back and forth as to what legal scholarship ought to be. This article makes no contribution whatsoever to that debate. Instead, it looks at student legal scholarship, which has gone unnoticed while the larger debate about legal scholarship simpliciter simmered on. The article does two things, neither of which appears to have been attempted by anyone hitherto. First, it offers an extensive critique of the leading guidebooks for aspiring student authors (e.g. Eugene Volokh’s Academic Legal Writing), which are taken to task for their narrow conceptions of student scholarship. Second, it provides an empirical analysis of recent student notes, enabling the reader to get an overview of the forms that student scholarship has actually taken over the past few years.
Scholarship of interest: "Redesigning the American Law School"
This article, by Professor David Barnhiser of Cleveland State, forecasts a "shakeout" in the legal education "industry" as the result of a significant decline in the demand for new lawyers. It also predicts a shift in emphasis within the legal academy away from traditional scholarship toward educational outcomes. The article will be published in the Michigan State Law Review but is available now at SSRN here.
From the abstract:
American law schools are an integral part of a vertically integrated system of production in which the end product is lawyers. Law schools are having rapidly increasing problems “selling” their “products” to potential employers/purchasers. Even if the law schools do not voluntarily cut back on the numbers of admitted students some states will decide there should be no public subsidy for educating students for employment areas such as law where there is no demand. Even though many private law schools will be affected negatively, publicly-funded law schools will also be dramatically affected due to declining state budgets and competition for scarce resources from areas of public expenditure with far more powerful lobbying support and, in fairness, greater and more demonstrable and immediate needs. For publicly funded law schools there is significant danger in the fact that there is no shortage of lawyers in America after decades of rapid expansion.
Several potential shifts in ABA accreditation standards and policy will have significant implications, including approval of credit for distance learning, rapid movement toward assessment of law schools based on what are called “output” measurements, and even a decision that scholarly productivity measures are an inappropriate factor for the American Bar Association (contrasted with the AALS) to rely on in assessing the accredited status of a law school. These three accreditation prongs will have enormous effects that include significant faculty reductions, higher faculty workloads, changes in tenure standards, and large-scale eliminations of the traditional law school research library. For the (many) law schools that choose to remain oblivious to the altered operational context, their adaptations will be ones developed in a crisis context as their applicant pools shrink, angry graduates are increasingly unable to find employment even while faced with educational debt equivalent to a home mortgage, and less expensive competitive institutions emerge that offer alternative approaches to legal education.
Hat tip to the TaxProf Blog.
Three Simple Ways to Improve Your Briefs
In the February 2011 Florida Bar Journal, Raoul G. Cantero, formerly a justice on the Florida Supreme Court, suggests “Three Simple Ways to Improve Your Briefs.” To summarize, they are: (1) Shorten your Briefs. (2) Include an Introduction. (3) Organize Your Brief into Subsections. The article offers advice on how to achieve these goals.
February 4, 2011
The professional ethic pitfalls of social media
Social media gives lawyers great opportunities to market themselves as well as lots of chances to run afoul of professional ethics rules. For instance, if you blog about a recent court victory, several ethics opinions suggests you might be violating the prohibition against lawyer advertising. This article from the February issue of the ABA Journal explains:
Distinguishing between personal communications and advertisements in social media can be tough. 'If I get a substantial verdict in a case and I put all the details of the case on my Facebook page, is that advertising or am I just communicating to my 149 friends on Facebook? I don't know,' [one law firm partner asks].
Some experts, however, think the answer is fairly clear. 'A long series of ethics opinions [including ABA Formal Opinion 10-457 (2010) and Arizona Ethics Opinion 97-04 (1997)] indicate that if online activities promote a law practice, it is attorney advertising,' says Michael P. Downey, a partner at Hinshaw & Culbertson in St. Louis and a member of the working group. 'If I announce a court victory on Twitter, it is an ad. [But] if you blog and never mention you're a lawyer and never mention your law firm, it is probably not an ad.' He adds that there's an easy way for attorneys to determine whether their social media posts should be considered advertisements: 'If I'm doing this to help get myself hired, it is an ad.'
What if a client posts a positive comment on your Facebook page? Does that raise an ethical problem too? Click here to find out how the attorney should respond.
Paying Back Law School Loans
Law school is expensive. In “The Bar Examiner, “ the magazine of the National Conference of Bar Examiners, Christopher Chapman examines “The Impact of the Recent Economic Crisis on Law School Borrowers.” Here is one of the many sobering charts that he provides.
Table 3: Estimated Total Debt and Monthly Payments for the Class of 2009
Public Law Schools
Private Law Schools
Average amount borrowed
Estimated accrued interest (during law school and post-graduation grace period)
Average debt at repayment
Standard Repayment Plan (10-year term)
Extended Repayment Plan (25-year term)
February 3, 2011
Five rules for succeeding at your first law job
From the blog Attorney@Work (as inspired by the reality TV show "The Apprentice"):
- Follow the rules. One “Apprentice” contestant was fired for seeking outside help with an assignment. He said he thought he was just “bending the rules.”
- Be honest. That contestant might have survived the cut had he told the truth about the incident. Instead he chose to lie. An entire career of integrity, excellent work product and reliability can be flushed away by one deceitful statement or act. Always tell the truth—you will be found out eventually. And while you may be excused for making a bad decision, it is unlikely you will be excused for lying.
- Own up to your mistakes. “It’s my fault, and I take full responsibility. It won’t happen again.” You would be amazed at how much power these simple words can carry. Everyone makes mistakes, and sometimes the mistakes are serious, but you still need to own up to them. Your employer will lose all respect for you if you blame someone else or attempt a cover-up.
- Demonstrate leadership tendencies. Nearly all law firms and in-house legal departments want their lawyers to have leadership potential, even if they are not being hired to lead. So, it is critical to demonstrate it. Firms can find plenty of candidates with the required skills, but it is a lot more difficult to find someone who knows how to delegate and inspire others.
- Be nice. No one wants an employee who causes tension. Even if you have top-notch skills, it’s unlikely that you’ll be hired if the employer suspects you may bring heightened drama and conflict to the group. Do not be rude or abrasive or try to intimidate people. (This includes your fellow attorneys, support staff, vendors and the people who deliver things to the office.) Lawyers are not professional athletes, movie stars or titans of industry, where bad behavior is tolerated. If an employer senses that a potential new hire could bring trouble, she will likely be scratched from the candidate pool.
- View every meeting as an opportunity. No matter how accomplished you are at interviewing, you will not get every job you want. You may not have the exact substantive skills or the personality fit just isn’t there. What is under your control, however, is the quality of the interaction. Interviews are meetings, and every meeting is an opportunity. Treat everyone you meet with respect and do your best to ensure they form favorable impressions of you and your skills.
Read more here.
More evidence the Susskind prophecy is coming true
We previously blogged about Richard Susskind's book The End of Lawyers in which he predicts that routine legal work will become commoditized and sold to clients much more cheaply than it is presently billed. Essentially Susskind believes that the same free market forces that drive down the cost of most fungible goods and services are about to hit the legal market big time. That's good news for clients and those lawyers who are able to adapt; bad news for most lawyers who stay wedded to the billable hour.
For instance, Susskind predicts that innovative firms will gain market share by developing software that allows them to dispense legal advice at the push of a button (after inputting some client background information much the same way that the big accounting firms dispense computerized tax advice). According to this column from the ABA Journal blog, at least one New York law firm is already on board:
[During a presentation by] Michael Weber, a partner at Littler Mendelson . . . to a group of New York law students participating in an innovative class on knowledge management . . . [he] described how Littler has organized its internal legal research and document information so it could provide answers to legal questions “at the touch of a finger,” thus providing fast and reliable advice to clients, but doing so in less time and therefore at lower fees. Not content with just creating an internal environment, Littler has also streamlined and automated the high-volume administrative dispute work for one very large client through technology and developed a pool of former associates who could manage basic procedures virtually. In this scenario, Littler was doing work that other firms might dismiss as “commodity,” but at profitability levels comparable to normal billable-hour work.. . . Weber explained that Littler had to take “an R&D approach,” led by Littler's innovative Chief Knowledge Officer Scott Rechtschaffen, making a short-term investment (and therefore necessarily impacting near-term shareholder distributions) to be able to create the capacity to deliver better value at lower costs, thus also impacting short-term revenues to some extent, but creating a better platform for long-term revenues.
The future is now, baby! And you can read more about it by clicking here.
Why can't undergrads write?
According to this column from the Chronicle of Higher Ed, it's because the demands of tenure require their profs to devote more time to writing articles rather than grading student papers. In addition, students enter college with such weak research and writing skills that the prospect of writing more than 20 pages in a semester is so daunting that students avoid those courses like the plague.
One of the distressing findings of Academically Adrift [here too] is that fully one-half of the seniors in the study stated that the number of courses they had taken that assigned 20 or more pages of writing [that's 20 pages total for the semester, not a 20 page paper] was but five or fewer. The Chronicle found an even lower rate of 20-plus pages in its survey of education and business majors at institutions in the state of Texas (as reported here).
The column goes on to note that the poor writing skills of undergrads is one of the chief complaints of employers. Where have we heard that before? Ah, yes, that also happens to be one of the big complaints expressed by law firms about law grads (and by judges about lawyers).
Because the root of this problem - the lack of class time spent teaching students the skill of writing - can be traced back to high school, it's a tough problem for law school teachers to fix by themselves, though we try.
You can read the rest of the CHE column here. The reader comments are worth a gander too.
Laptops versus tablets
Over at Jim Calloway's Law Practice Tips blog, he asks whether tablet computers are laptop killers. Law firms love to give them away to associates and now one law school has given them to all faculty and students. They're great devices when you're on the go but laptops still rule when it comes to preparing documents. As Mr. Calloway says:
My guess is that reports of the death of the laptop are premature. For me, the laptop is still the superior device for writing a term paper or a legal brief. What will probably save the laptop for a good number of years is that it is (somewhat ironically given the name) still the superior device for working at a desk or a table.
But the tablet is superior in a number of other ways: best for using on an airplane, best for reading an e-book, best for using while reclining on a sofa or in bed, to name a few. My initial impression is that those individuals and families who can afford it will have various computer devices for various uses, including a smart phone for immediate access. As they upgrade their devices, the old ones won't go away, but will be used by those who couldn't afford or didn't choose to invest in the higher-priced new versions.
You can read about laptops versus tablets here.
Job alert: Criminal law clinical fellowship at Washington U. School of Law
If you're an attorney interested in getting into the teaching thing, this fellowship could be for you.
THE WASHINGTON UNIVERSITY SCHOOL OF LAW invites applicants for its Clinic Faculty Fellows program. The fellowship is designed to train talented lawyers to obtain a full-time academic teaching post at a law school, ideally including clinical teaching, and to help provide teaching coverage in the law school’s Clinical Affairs program during the two years that the fellow is at Washington University School of Law. The fellowship will provide feedback and mentoring to help the fellow develop clinical pedagogical skills and produce academic legal scholarship. The fellow’s teaching assignment will be in the direct-supervision Criminal Justice Clinic and may include a course outside the clinic. Candidates should be eligible to practice law in Missouri (i.e., the applicant should currently be a member of the Missouri bar or be eligible for admission without examination pursuant to Missouri Supreme Court Rule13.06). Candidates should also have experience practicing criminal law, demonstrate promise as a legal scholar and teacher, and have a commitment to pursuing a career in legal academia. The Washington University School of Law is committed to diversity in the legal profession and in the legal academy and is interested in applications from persons of color, women, disabled persons and other under-represented groups, and regardless of sexual orientation. The presumption is that the fellow will be appointed for two consecutive academic years, to begin July 1, 2011. The expectation is that the fellow will participate in the national entry-level teaching market beginning in the fall of 2012. The fellow will have the opportunity to participate fully in the intellectual life of the law school, including faculty workshops, colloquia, and conferences. The fellow will have no teaching or case coverage responsibilities over the summer. It is expected that the fellow will complete one scholarly article by August 2012. The fellow will be expected to present his or her writing to the faculty at a faculty workshop or seminar in order to refine the work and prepare for the scholarly give-and-take that occurs during the entry-level job talk. The fellow will receive a competitive annual salary along with employee benefits and support for research and teaching. Interested applicants should submit a résumé, official law school transcript, a list of references, copies of recent written work (including any prior scholarly publications), and a brief description of the candidate’s scholarly agenda or interest in entering academia. Please submit an application and materials to: Professor Annette Appell, Associate Dean for Clinical Affairs, Washington University in St. Louis School of Law, One Brookings Drive, Campus Box 1120, Anheuser-Busch Hall, Saint Louis, MO 63130-4438. Applications will be considered on a rolling basis as they are received, and interviews will begin after March 1, 2011.
Top Ten Disciplinary Cases in Pennsylvania
The Disciplinary Board of the Supreme Court of Pennsylvania has selected its ten top disciplinary cases for 2010. None of the cases is comical or fodder for the cinema. However, they can serve to show students how lawyers get themselves in trouble. Here’s the link to the Board’s website. The remainder of the material on the website makes for interesting reading.
Justice Sotomayor reflectsAdam Liptak of The New York Times reports on U.S. Supreme Court Justice Sonia Sotomayor’s comments during a recent appearance at the University of Chicago Law School. Among other things, Justice Sotomayor remarked on the utility of oral argument and on the law-clerk hiring practices of an unnamed federal appellate judge who’s probably named Richard A. Posner.
The law schoool’s website offers additional news about Justice Sotomayor’s visit and comments here and here.
February 2, 2011
Reset of the legal job market has resulted in fewer lawyers earning greater revenue
That's the upshot of this post from Belly of the Beast regarding the "new normal" within BigLaw. Associates have fewer prospects for advancement, the billable hour is still king, the distribution of pay within the partner ranks has become more diffuse with fewer lawyers producing more work at higher compensation levels.
The pressure to bill hours is increasing. Unfortunately, it remains an important, albeit misnamed, productivity metric. Indeed, rewarding time alone is the antithesis of measuring true productivity, which should focus on the efficiency of completing tasks -- not the total number of hours used to get them done.
As one law firm management consultant told the NLJ, "We're finally seeing the bottom of the legal recession...There's been a reset. There are fewer lawyers producing more work and more revenue."
When the Am Law 100 profit results come out in May, Citi's prediction will come true: As the economy continues to sputter and young law school graduates worry about their prospects, overall average profits per equity partner will follow their steady upward trajectory.
Law firm management consultants might say all of this results from increased productivity that the "reset" of big law has produced. That's one way to put it. But the the growing spread between highest and lowest within equity partnerships -- coupled with the plight of everyone else -- may reveal something more sinister: The worst economic downturn of modern times has provided protective cover to greed atop the pyramids.
You can read the rest here.
Plan to open three new law schools in New York may be scuttled
Since New York already has 15 law schools and the most lawyers of any state (more than 150,000), it should be no surprise that plans for three new law schools have been put on hold for the time being. From the online ABA Journal blog:
Plans for two of the schools have been “shelved indefinitely,” the New York Law Journal reports, in an article reprinted by the New York Lawyer. They would have been built by the State University of New York at Stony Brook and by the private St. John Fisher College.
A proposal for a third law school—by SUNY at a Binghamton location—faces "serious challenges," its provost told the publication. At the earliest, the school would open in 2017.
The New York Law Journal says the stalled plans are attributable to “an ailing economy, state government budget woes and doubts about whether there are enough legal jobs to support the new schools in addition to the 15 existing ones.”
Hat tip to the TaxProf Blog.
Not only will students learn by smart-phone, they'll pay their tuition that way too
Last week we told you about some foreign schools that are starting to deliver educational lessons, and teacher feedback, via mobile devices like the iPhone. This story from CNN predicts that within the next couple of years, credit cards will become as obsolete as vinyl records since everyone will be paying their bills via smart-phones.
You can already use your iPhone, Droid or BlackBerry to buy a hotdog at the ballgame, buy your Starbucks latté, or give a friend a few bucks by Bumping phones. But by the end of the year you may not even think twice about reaching for your phone to pay at the register instead of fumbling for your credit card.
"Your plastic card hasn't changed since the age of the vinyl records," said Michael Abbott, CEO of Isis, a new mobile payment network. "This is the chance to bring payments forward from the plastic age and the vinyl records age to the digital age."
While companies have been experimenting with contactless mobile payments for years, 2011 is expected to be the year the technology really takes off. That's because millions of phones capable of making contactless payments are expected to be shipped out in 2011.
As a result, this pay-by-phone market is forecast to make up $22 billion in transactions by 2015, up from "practically none" last year, according to research firm Aite Group.
You can read the rest here.
New "apps" will make web-reading easier for viewers
We've blogged before about how the web and devices like Kindle are changing the way we read (devices that track eye movement show that readers tend to skim e-text whereas we read p-text in a more conventional, thorough manner). Of course this has implications for how we teach students to be critical readers and whether and how lawyers should alter their writing style for judges who may do more online reading.
This New York Times article discusses a couple of apps that make web reading a little easier by stripping away the extraneous stuff like advertising and pop-ups.
The DVR rocked the world of television by letting viewers skip commercials and build their own home viewing schedules. Now a handful of Web services and applications are starting to do much the same thing to online publishers.
These tools make it easier for people to read Web articles how, when and where they want, often dispensing with publishers’ carefully arranged layouts and advertisements.
One popular tool, Readability, strips articles to the bare minimum of text and photographs with a single click.
. . . .
Readability is one of many services experimenting with the future of reading. A wave of applications, including Pulse, Flipboard and My Taptu, are responding to changes in how people prefer to read on the Web, putting articles and blog posts into cleaner or more attractive visual displays.
Nate Weiner, founder of Read It Later, a Web and mobile service that saves articles to be read offline, said there was a larger shift under way, one that mirrors the move to digital from print. Instead of thumbing through the newspaper over breakfast, he said, people like to read articles from many sources on their commutes or in the evening, often using mobile devices.
“People don’t really want to have to be confined to a specific place, time, site or device to read content,” Mr. Weiner said.
You can read the rest here.
Happy Groundhog Day
We can view Groundhog Day in at least two ways.
(1) We can recall the movie "Groundhog Day" and recall Yogi Berra's famous words, "It's deja vu all over again." The same thing over and over again. We can pull out our yellowing class notes and deliver the same class. We can relive the same faculty meeting debating the same issues.
(2) Or, we can recall that the day marks the half way point between the winter solstice and the spring equinox. We might know that in ancient times, the holiday was the time when the Roman farmers carried torches to the top of the hill to encourage the newness of spring to come. We might know that in some traditional Christian circles, the day is known as Candlemas day, recalling the tradition of those Roman farmers. For us it can be a day of anticipation and renewal. A time to move from the past to a hopeful future.
Happy Groundhog Day! P.S. My daughter Laura was born on Groundhog Day. Today she is in Punxsutawney, PA with the famous groundhog Punxsutawney Phil celebrating the occasion.
February 1, 2011
Legal research engine Fastcase is now available for free to members of D.C. bar
A free alternative to Wexis just became available to members of the D.C. bar and its name is Fastcase. 3 Geeks and a Blog is reporting the story. Fastcase already provides free service to members of the bar in a boatload of other jurisdictions.
From the Fastcase press release courtesy of 3 Geeks and a Blog:
Beginning February 1, 2011, more than 70,000 attorneys will receive free and unlimited access to one of the nation’s largest law libraries through the D.C. Bar website, www.dcbar.org. The service is unrestricted by time or number of transactions, and unlimited printing, reference assistance, and customer service are included for free.
The D.C. Bar is one of the nation’s largest bar associations, representing almost 10 percent of all attorneys in the United States. Its partnership with Fastcase reflects the Bar’s commitment to providing its members with outstanding services that enhance their practice.
“The D.C. Bar is excited to announce this new benefit and free resource for our members,” said Katherine Mazzaferri, Chief Executive Officer of the D.C. Bar. “Our members range from local solo and small firm attorneys to global law firm leaders, so offering free access to Fastcase is a valuable benefit that our entire membership can appreciate.”
Members will get free access to Fastcase’s D.C. law libraries, as well as the ability to subscribe individually to the Fastcase nationwide Premium subscription for $195 per member per year (the service normally costs $1,140 per year). Law firms can get even larger discounts by subscribing to Fastcase’s Enterprise Edition.
This brings Fastcase's subscriber base up to one half million users.
Read more here.
A dean's advice to those thinking about going to law school
The most recent issue of National Jurist Magazine includes an article by Wayne State Dean Robert Ackerman in which he explains to readers how to decide whether law school is worth attending. Dean Ackerman recommends that anyone thinking about law school consider the following points:
- Do not apply to law school if money is your primary motivation. There are easier ways to make money. The law is a profession requiring hard work, intellectual ability and the desire to serve others. Apply to law school if you are intellectually curious about the law, if you have a passion for justice, and if you want to help people.
- Apply to a range of law schools. One benign consequence of the rankings scramble is that lower-ranked law schools offer substantial scholarships to candidates who will improve the schools’ LSAT and GPA medians. So a good student who is not in thrall to the rankings is likely to find a law school that will allow her to obtain a good legal education without incurring crippling debt.
- When in law school, maintain control over your expenditures. A student who tries to live the lifestyle of a lawyer while in law school may find herself living the lifestyle of a student after graduation. Avoid extravagant travel; maintain a healthy but inexpensive diet; stay in shape by running instead of skiing. Enjoy the simple pleasures, and save the big-ticket items for later.
- While a Big Law firm paying six-figure starting salaries may be your cup of tea, don’t obligate yourself to obtain this type of employment if you were motivated to study law for other reasons. Many lawyers find fulfillment working in smaller law firms, in government or for public interest organizations. Some find their degrees useful in business or education. The advantage of a professional degree is that it makes you the master of your own fate, and expands your career options. The idea is to make a living, not a killing, and to make a contribution along the way.
You can read the rest of Dean Ackerman's column here.
Washington & Lee School of Law takes lead in furnishing accurate employment data
A chief and legitimate gripe of the "law school scam" bloggers is the lack of accurate employment data being disseminated by schools. When third tier schools represent to USNWR that more of their students are "employed" nine months after graduation than those of Yale, you know books have been cooked. In response to efforts by groups like the Law School Transparency project, Washington & Lee School of Law is doing its best to provide prospective law students with a true picture of how its grads fair once they enter the job market. Bravo to them.
You can read all about it, along some pretty charts and graphs prepared by the W & L showing employment data for its grads, by clicking here for Above the Law.