Tuesday, February 1, 2011
Recently, Alfred Kahn passed away at age 93. He was a professor of economics, the deregulating Chair of the old Civil Aeronautics Board, and a champion of plain English before the cause was fashionable. As Chair of the CAB, he began his reign with a celebrated memo to his staff offering this observation: “If you can’t explain what you’re doing in plain English, you’re probably doing something wrong.” He further advised:
Every time you’re tempted to use ‘herein’ or ‘hereinabout’ or, similarly, ‘therein,’ ‘thereinabove,’ or ‘thereinunder,’ and the corresponding variants, try ‘here’ or ‘there’ or ‘above’ or ‘below’ and see if it doesn’t make just as much sense.”
Here is Robert Frank’s tribute to Fred Kahn in the New York Times.
Monday, January 31, 2011
As reported by AmLaw Daily, the legal consulting firm Hildebrandt released data on Friday showing that the demand for legal services, particularly transactional work, rose slightly in the fourth quarter. During the past year the demand for bankruptcy services receded just a bit which also tends to support the view that the economy is getting better and we'll see improved growth and hiring by law firms in 2011. From AmLaw Daily:
On Friday, Hildebrandt issued its latest Peer Monitor Index Report and the picture it paints is a bit rosier. Examining data from last year's fourth quarter, the report reveals that demand actually rose for the first time since the recession began. Though the increase was small--just 1 percent compared to the same period last year--it was nonetheless an encouraging sign.
'It's a little too early to declare any major tonality shift, though I think the fourth quarter was a much more optimistic casting type of a quarter,' says Mark Medice, Hildebrandt's program director for Peer Monitor.
Though demand remains much lower than it was in prerecession times, Medice says that one reason for optimism is that core practice areas, specifically litigation, saw a bump in demand during the fourth quarter after being stagnant for most of the year.
I don't see this being used in law school or for CLE's where lessons and feedback are presumably more detailed and nuanced but who knows? From the Chronicle of Higher Ed:
McGraw-Hill is building a mobile-phone platform to teach English and college test preparation to people in India, which the publisher hopes will help it tap into rapidly expanding cellphone use in emerging markets.
The platform, mConnect, comes as textbook publishers are jockeying to supply learning materials on digital devices. If the software is successful in India, McGraw-Hill plans to offer it in other developing countries in Asia and Africa.
The service will initially teach subscribers through text messaging and automated voice response, said Bruce D. Marcus, McGraw-Hill’s executive vice president. For instance, automated software will give Indians feedback on their English-speaking abilities, and a text-message service will offer test-preparation questions and grade the responses.
You can read the rest here.
This article is authored by Pace Professor Gary A. Munneke and can be found at 30 Pace L. Rev. 1207 (2010). From the introduction:
In 2007, the Carnegie Foundation released a report, "Educating Lawyers: Preparation for the Profession of Law," which confirmed the basic tenets of the MacCrate Report about the importance of teaching professional skills in law school, but incorporated insights gained through public debate about the goals and objectives of legal education since 1991, including revisions to the Standards for Approval of Law Schools dealing with professional skills, the enunciation of best practices in legal education in a report from the Clinical Legal Education Association (CLEA), and changes in the educational world general in the application of technology as a teaching and learning tool.
This article will focus on the value of teaching law students the specific skills of organization and management, as they relate to the larger set of fundamental lawyering skills described in the Carnegie and MacCrate Reports, as well as other studies. First, this article will review the development of skills education in law schools, including the teaching of practice management skills. Second, the article will discuss the emerging law of law practice management. Finally, this article will describe the pedagogy of teaching both skill and doctrine involving law practice management as an integral part of the process of legal education, utilizing live classroom, on-line and distance learning models.
This article, by United States Magistrate Malachy E. Mannion, can be found at 30 Pace L. Rev. 1195 (2010). From the introduction:
The thesis of this article is that every lawyer should be required to complete a trial advocacy course, prior to graduation from law school, so that he or she is capable of understanding and performing the basic advocacy skills that allow for the achievement of justice in the ultimate dispute resolution setting, the courtroom. This recommendation that the trial advocacy course be mandatory is not meant to disparage those who are already trial lawyers, but to ensure that all future lawyers, prior to graduation from law school, possess basic trial advocacy skills. In addition, as the number of trials has decreased in recent years, it is essential that law students learn basic advocacy skills, so that we ensure the quality of our system of justice, anchored in the trial advocacy system, will remain intact.
The first part of this article will describe how the formal teaching of trial advocacy began, the predominant methodology that is used to teach advocacy skills, how teaching advocacy skills in law school came about, and the current emphasis, or lack thereof, that law school curricula place on the trial advocacy course. The second part of this article will discuss why the completion of a trial advocacy course should be a mandatory requirement prior to graduation from law school.
Over on Mauled Again (Jan. 31), Jim Maule once again tuned into Judge Judy. This time, he does not discern any misinformation on her part, but does recount an interesting case of what appears to be tax fraud. Here con artists and their victim all conspire to defraud the IRS, but the victim still ends up being a victim, at least until the IRS finds out (assuming an intrigued agent watches the show and investigates). Jim speculates:
I wonder what sort of impact on the viewers this episode has made. Has it taught people that it doesn’t pay to commit tax fraud, that the improper filing might be identified even if it is not the IRS that discovers it, that con artists specializing in tax fraud are popping up all over the place, and that one should check out the credentials and experience of a prospective tax return preparer? Or is it putting ideas into the heads of people who figure that with a little more care they can avoid being detected?
Workers at the Dechert firm were allegedly forced or permitted to waive their meal breaks so that they could continue working. California law entitles hourly workers to a 30 minute meal break every 6 hours or two breaks in every 12 hours. To end a class action, the firm has settled the case for $429,000. The class had sought to recover premium wages for every meal period missed since November 22, 2002. The lesson is: Treat your employees well. Here is a link to the story in Am Law Daily. The story, in turn, includes a link to the class action complaint.
On Slate’s culture blog, Stanley Fish offers five of his favorite sentences. Of these, here’s my favorite:
Gertrude Stein (from Lectures in America, 1935): "When I first began writing I felt that writing should go on I still do feel that it should go on but when I first began writing I was completely possessed by the necessity that writing should go on and if writing should go on what had commas and semi-colons to do with it what had commas to do with it what had periods to do with it what had small letters and capitals to do with writing going on which was at the time the most profound need I had in connection with writing."
The blog entry celebrates Professor Fish’s new book, “How to Write a Sentence,” which is enjoying a grand reception.
Sunday, January 30, 2011
Apropos to our blog post below is this article from the Law News Technology blog called "How to Prevent the End of Lawyers" in which a remedy to Richard Susskind's dire prediction (for lawyers that is, not clients) is offered:
Susskind argues that while most lawyers view themselves as offering customized services (termed "bespoke" in the UK), and while many law firms have begun to "standardize" and "systematize" their internal processes, clients are pressing for "packaged" and even "commoditized" services. What he describes, in fact, is a trend typical of many industries. The true epiphany here may be that the legal industry is not immune to such forces and that significant restructuring in the way legal services are delivered may be required.
. . . .
The question is, given the encroachment of market forces on the legal industry, and the need for constant innovation: what roles can information technology and IT professionals play in helping firms deliver the legal services clients need and demand profitably, now and in the future? I believe there are three core benefits information technology offers law firms in this regard:
• It can accelerate both the delivery and rate of innovation of legal services
• It can extend the reach of a firm's legal services to more clients
• It can combine and focus the expertise of the firm to produce a whole that is greater than the sum of its parts.
If you want to read more about how IT can save the legal profession from the further commoditization of services, click here.
A hat tip to Jim Calloway's Law Practice Tips blog - a must read if you aren't already subscribed.
I just started reading Richard Susskind's book "The End of Lawyers: Rethinking the Nature of Legal Services" in which he argues that because much of today's legal work involves routine tasks, in the future we'll see a lot of it outsourced to lawyer-drones (and possibly non-lawyers too) who can handle it more cheaply and efficiently than today's big firm model. Susskind predicts that the future of legal practice will find a cadre of highly paid lawyers at the top of the pyramid (or at the center of the donut to use his metaphor) offering "bespoke services" in complex matters while the remaining work is farmed out to cheap labor.
It so happens that Above the Law reported on Friday that WilmerHale is creating a "discovery-track" attorney position that involves recruiting attorneys to do the kind of routine legal work Susskind describes. The WilmerHale hires will be doing the same type of work that contract lawyers have been doing for the last several years except that these jobs represent a career option, complete with benefits, rather than a temporary weigh station until something better comes along. Elie Mystal suggests this could be the beginning of a bifurcated legal job market:
[T]here’s nothing inherently wrong with hiring law school graduates to do grunt work. Hell, for years that’s what Biglaw did — only they’d pay these young associates a huge amount of money, and charge clients an arm and a leg for work that can really be done by an intelligent and conscientious high school student. It makes a lot of sense to find a way to do this work more cheaply. And clients are demanding that this work be done more cheaply.
The main reason that all this is bad news for law students and recent graduates is that law schools are light years away from admitting this reality to themselves and charging appropriately. If we’re going to have two different “tracks” for attorneys, then shouldn’t we have two different tracks for legal education? Why require three years and charge six figures to train people for jobs that they have nearly no hope of getting?
I think that the best preparation is a course of study that requires a lot of writing and teaches critical thinking and close analysis. The course of study should also broaden the student’s knowledge as well as the student’s appreciation of differing points of view.
From this perspective, many college majors fit the bill. Lately, the liberal arts has been criticized as impractical and unrelated to the working world. This criticism is unfortunate and unfounded. In his book review of “Why Choose the Liberal Arts?, by Mark William Roche, Gregory Jusdanis quotes from the book explaining the value of the liberal arts:
1. They have intrinsic value in their own right. We learn something about history or philosophy. We can acquire foreign languages and read literary works in translation or in the original. We gain, in other words, a more engaged and meaningful understanding of the world.
2. The liberal arts cultivate those skills, such as critical thinking and writing, which are important for success after graduation. Students thus gain competence in thinking systematically and analytically, enhancing their facility to communicate with other people.
3. The third purpose represents a synthesis of the two. By engaging students with other cultures and other traditions, the liberal arts help instill in them a higher purpose and a sense of connection with the world around them. Becoming aware of their links to other people, societies, and institutions, students also recognize their responsibilities to this world.
I agree. You can read the entire review here, from the Teachers College Record online.