Saturday, December 24, 2011
From Law is Cool.” Here are the opening lines:
Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.
A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.
Friday, December 23, 2011
Advocacy to Zealousness: Learning Lawyering Skills from Classic Films includes 26 skills, listed in alphabetical order and appearing in separate chapters, which should ideally be in every lawyer’s toolbox. Each is an example of professionalism, and all are possible for every current or future lawyer to attain or sharpen. They also speak to our needs in the legal profession in the new millennium. Interspersed throughout the text are subtle references to diversity, both in the practice of law, as well as in various film references and storylines.
Each chapter includes a discussion of the skill and its use for lawyers, a synopsis of the film associated with the skill, film discussion questions, and brief exercises for improvement. The format encourages readers to either methodically review each chapter in alphabetical order, or skip around as needs and interests dictate. The book concludes with a comprehensive index.
Images, be they positive or negative, are powerful and long lasting. Those found in popular films are often our only points of reference until we meet the real thing — or assume the role ourselves. Many professors already use film clips in their classes, but, until Advocacy to Zealousness, there was no singular point of reference for films selected solely for the purpose of fostering and sharpening lawyering skills. Legal skills training needn’t be dry or cumbersome. With creativity and planning, it can instead be educational, memorable, and enjoyable — while also remaining comprehensive and relevant — thereby enhancing the practice of law and the legal profession as a whole.
Why is this? Family law crises are easy to explain. Holidays provide a critical time for custody battles. One ex spouse won’t surrender the kids to the other ex for ChristmasEve or Christmas or Hanukah. But what about commercial litigation? Blogger Lee Akazaki explains. Family law is intimate partnership law. And business law is occupational family law.
It’s not just in the movies that people are fired or break up over Christmas dinner or at birthday parties (of which Christmas is one, after all), or that spoilers of merrymaking appear. This is a time when people take stock of their personal lives, and it is also a time when businesses perform year-end reviews. If the relationship was still in the red after Black Friday, chances are it won’t last into 2012. The Grinch is not mean to the Whoville residents any other time of the year. His venom rises on Christmas Eve. Notice how many internet fraudsters are out, filling up your junk mail folder, hoping you’ll be duped into cheque-kiting your trust account. They know you’re more vulnerable right now than at any other time. Even in financial transactions, an institutional lender might seek judicial remedies at this time, if only because it wants the order before the end of the year.
A Happy Christmas Eve to all!
A couple of days ago, we reported that the ABA had denied Duncan Law School provisional accreditation. Yesterday, Duncan sued the ABA. According to a New York Times article, "the council found that Duncan, which is part of Lincoln Memorial University, fell short of a standard that prohibited the school from enrolling students who did not appear 'capable of satisfactorily completing its educational program and being admitted to the bar.' The standard, say legal scholars, is to protect students from schools that are trying to cover their costs by admitting people who are unlikely to succeed."
While I know nothing about the situation at Duncan (ABA proceedings are confidential), we do need to find ways to provide lower cost law schools so that students don't graduate with a mountain of debt and so that legal services can be provided to everyone at a reasonable cost.
Correction: Knoxville law school (ooops)
Thursday, December 22, 2011
This report from the Center for American Progress, a liberal think tank, argues that the well publicized problems with law students' return on investment in connection with obtaining a J.D. are emblematic of a problem throughout higher ed; the high cost of a university degree will financially hobble students decades after they graduate. Educational loan debt has gotten so out of control it may prevent many students from ever achieving the kind of middle class existence their parents took for granted. From the report's summary:
Lawyers play a relatively small role in the American workforce, but they seem to play a big role in the American imagination. Television shows such as The Good Wife and Suits portray a luxurious and exciting lifestyle at “Big Law” and boutique law firms, while Law and Order depicts district attorneys working relentlessly in the pursuit of justice. And mainstream media follows the developments in legal education with a level of interest that seems out of proportion with its relevance to their readership.
As they continue to read articles about the legal education crisis in The New York Times or The Wall Street Journal, many people may wonder: Why do we care so much about law school? For higher education policymakers, though, it may be more worthwhile to consider: Why should we care about legal education?
As a matter of scale, it seems silly to spend much time thinking about law school. Last year only about 155,000 students were enrolled at law schools accredited by the American Bar Association, or ABA, whereas almost 6 million students were enrolled in degree programs at community colleges that same year. But the small scale of the legal education sector is exactly why it may be worth some attention.
. . . .
The reason to focus on law school is not, as The New York Times claims, that it is a peculiar form of education. It’s that legal education suffers from many of the same doubts and problems that plague all of higher education. But with only 198 fully ABA-approved law schools in operation, legal education is the bite-sized version of the phenomena that are forcing change in all of our colleges. And, like for-profit colleges, law schools primarily prepare students for a well-defined career area, making it easier to assess how well they serve their students.
. . . .
This report explores the field of legal education with the hope that putting a magnifying glass to this small part of higher education will help us better understand the problems that face all colleges. It details the steady rise in law school enrollment, despite high tuition rates and a heavy reliance on student loan debt. And it describes the unpleasant surprise that awaits law students upon graduation: Though a few lucky grads will make more than $130,000 per year, most new lawyers can expect annual salaries of around $63,000. With monthly loan payments near $1,000, graduates are finding that membership in the legal profession is not the golden ticket they thought it would be.
. . . .
The crisis in higher education these days is not that college is no longer “worth it.” It’s that the value proposition for a college degree—in this case, a law degree—is changing, but schools, students, and policymakers have not changed with it. As the value of a college degree fluctuates, students must adjust their plans regarding attendance and financing accordingly. And colleges must strive for innovations in educational delivery that both improve education and contain costs. Finally, policymakers must make sure that accreditors not only ensure quality but also encourage their members to provide a high-value education to students.
To facilitate more flexibility on the part of students, schools, and policymakers, the following policy changes should be implemented:
- The Bureau of Labor Statistics should collect and publish average employment and salary data for recent entrants into an occupation.
- Accreditors in all sectors of higher education should create standard definitions for employment and salary statistics, and require member schools to make such information readily available to students. Accreditors should audit member schools’ adherence with these standards from time to time.
- The National Advisory Committee on Institutional Quality and Integrity should conduct a review and submit a report to Congress and the Department of Education on accrediting standards that stifle innovation or drive up tuition costs in higher education.
- Congress should provide funds to colleges through the Fund for Innovation in Postsecondary Education for projects that use technology or other innovative solutions to drive down tuition costs while maintaining or improving educational quality.
You can continue reading here.
More Tips for New Lawyers
Recently, Attorney at Work 25 Tips for the New Lawyer. Even 25 tips. As a follow-up, it invited readers to offer more advice. Here’s that advice:
Coddle Your Connections
Value Other Skills
Invest in Meaningful Relationships
Share Your Accomplishments
Guard Your Time and Manage It Well
Use Technology as a Tool
The blog provides an explanation of each tip.
One of the most perceptive comments to Stanley Fish's article "Teaching Law" comes from Dr. Harriet A. Fields:
"Prof. Stanley Fish refers to the November 20 article in the NYT, "What They Don't Teach Law Students". My dissertation from Teachers College, Columbia University is A Study of Professional Behavior in Education and Practice. At the time of Watergate, a column by Art Buchwald motivated my topic by asking of those involved in the scandal, “What subjects did they take in law schools which made them believe that they were not doing anything wrong?”
Not much has changed since then, the dysfunction on Wall Street, in the U.S. Congress, the lobbying advised by lawyers, are all part of the pathology and malaise that is crumbling the ethical infrastructure of this country. It is time to frame education in all the professions in an outward focus of what society needs to learn, grow, and flourish as partners in our global community, one individual, and community at a time."
Greater emphasis on professionalism is, of course, one of the Carnegie Report's goals. However, law schools are not doing a very good job at teaching legal professionalism, usually segregating it to one class. Even the legal reform movement has sometimes neglected professionalism at the expense of adding other practice skills. As Dean Martin J. Katz has declared: "the debate between theory and practice often overlooks a third critical component of a balanced legal education: professional identity – that is, what it means to be a lawyer and a professional."
Professionalism is something we need to teach in all classes. For example, Scott J. Burnham in a recent article declared, "many opportunities to discuss ethical issues arise in the Contracts class; most of these involve planning, negotiating and drafting rather than litigation." Similarly, Michael Hunter Schwartz and Denise Riebe included a Professional Development section in each chapter in their innovative casebook Contracts: A Context and Practice Casebook (Carolina Academic Press 2009). Of course, one of the best ways to teach professionalism is to be good professional examples to our students.
Wednesday, December 21, 2011
From the National Law Journal:
It appears that modest annual billing rate increases are here to stay. For the third year in a row, law firms showed restraint with hourly rate increases, inching up at a rate only slightly higher than inflation in many cases. The average firmwide billing rate, which combines partner and associate rates, increased by 4.4 percent during 2011, according to The National Law Journal's annual Billing survey. That followed on the heels of a 2.7 percent increase in 2010 and a 2.5 percent increase in 2009 — all of which paled in comparison to the go-go, prerecession days when firms could charge between 6 and 8 percent more each year.
It's a buyer's market
"Before the recession, I think we had a seller's market," said Altman Weil consultant Ward Bower. "There was so much demand that law firms were in the driver's seat and could get what they wanted. Clients are in the driver's seat now, and they aren't going to pay those increases. They're exerting much more control over pricing, strategy and staffing decisions."
Click here (subscription required) for a nationwide sampling of law firm billing rates.
Click here (ditto) for a report on the percentages of law firm revenue derived from "variations on the billable hour and true alternatives."
Click here (same) a sampling of hourly rates charged by law firms based on associate class.
Just a couple of days after David Segal's latest New York Times article arguing that excessive ABA accreditation requirements are partially to blame for the high cost of a legal education, the start-up Tennessee law school that Segal made the centerpiece of his article has been denied provisional accreditation by the ABA. While the ABA didn't provide an explanation per its usual policy of confidentiality, administrators at the school speculated that the decision was due in large part to the low median LSAT scores of its student body - 147 to be exact.
From the National Law Journal:
The American Bar Association has denied provisional accreditation to the Lincoln Memorial University, Duncan School of Law.
The ABA's Council of Legal Education and Admissions to the Bar voted not to approve the Knoxville, Tenn.-school's accreditation application during its Dec. 2-3 meeting and informed the school on Dec. 20, according to a council memorandum.
Just two days earlier, Duncan was featured in a New York Times article about how the ABA's lengthy and detailed accreditation standards contribute to the high cost of legal education. The article highlighted Duncan because the school is attempting to cut costs by measures including maintaining many library resources online rather than in hard copy.
The ABA did not detail why it denied the school's application, and a spokeswoman said that confidentiality rules forbade officials from discussing the matter.
However, Duncan dean Sydney Beckman said the council had identified problems with the academic credentials of the school's incoming students and the school's ability to provide academic support to those students. School administrators disagreed with those findings, said Beckman, who noted that the council's findings differed from those of the ABA site team that visited the campus.
"We demonstrated in that meeting that we clearly are in compliance with the standards," he said. "It doesn't appear that this decision was based on our compliance."
Beckman said the school's median score on the Law School Admission Test for three classes of incoming students was 147. He said those credentials met or exceeded those at some law schools that are accredited. According to ABA data, at least five accredited law schools have median LSAT scores of 147 or lower.
You can continue reading here.
These are directed at laterals but they apply equally well to law students looking for jobs during the spring interview season. From Above the Law:
1. Be prepared: Preparation is key. Do not try and “swing it” and go to an interview unprepared. Understand what is at stake when you go into an interview — getting hired. Back in the good ole days, your résumé alone was sufficient to get you a job. The interview process was merely a formality and a way for firms to screen out people who were completely socially inept. Today, the résumé is only one component of your candidacy….
2. Be informed: Before you set foot in the interviewer’s office, make sure you have conducted extensive research of the firm, the practice area, and the position you are interviewing for. There are numerous sources you can look to and specific items that you should review prior to your interview. Carefully review the firm’s website, NALPdirectory.com, and Lateral Link’s Career Center. Check the local business news media in addition to the traditional national news sources. The goal is to be able to demonstrate both your genuine interest in and deep knowledge of the firm.
. . . .
3. Be an active, inquisitive interviewee: Make sure you have a list of questions for your interviewers. Every interviewer will ask you if you have any questions, and it is important to have thoughtful and relevant questions prepared as it shows interest. Interviewers want to know what kind of questions are circling in your head about their firm. While you will have several questions that will be inappropriate to ask during an interview, evaluate general issues you have questions about. Ask about aspects of the firm that are relevant to you: mentoring programs, diversity or affinity groups, and recent press releases.
. . . .
Read about how to implement each of these strategies here.
According to a dissatisfied client, two lawyers are liable for breach of fiduciary duty and breach of contract. The client claims that one of the lawyers optimistically promised a $156K win in a dispute over a car sale. The client received only a $26K judgment and then, she alleges, the lawyer and the lawyer’s partner pressured her into accepting a $6K settlement to be paid in installments.
Of course, we don’t have all the facts yet, so it is too early to decide whom to believe. Still there’s an important lesson for our students about making unqualified promises. The lawyer should make a “no promises” statement to the client and include wording in the letter of engagement that the lawyer will do his or her best, but cannot promise a victory.
Here is the story from the Texas Lawyer.
“The summaries are added daily to all opinions from state supreme courts, the U.S. Supreme Court, and federal circuit courts of appeal, and made available for no additional charge to all Fastcase users."
If you are not yet a Fastcase user, check with your local bar association for access or download the free iPhone app.
Hat tip AALL (@aallnet)
A Tweet from the American Association of Law Libraries led me to this post from the Dallas Association of Law Librarians.
“FedCtRecords is a mobile app for users to access their PACER accounts and locate federal court records and search the following information:
-Deadlines and Hearings
A review of the app can be found at the iPhone J.D. blog.
The app usually sells for $19.99 but is free for a limited time – so if you want to try it, download it soon. I haven’t tried it yet, but hope to test it out soon.
A couple of days ago, I argued that legal education reform is not about mechanical skills, such as knowing how long an attorney has to file a response or where to file a brief, but rather about better integrating theory with practice.
Dean Martin J. Katz of the University of Denver Sturm College of Law has written similarly on The Educating Tomorrow's Lawyers Blog:
"The leaders in education reform understand that the goal is to create multi-faceted and balanced graduates – those who not only understand the law at a deep level, but also know how to use the law to solve their clients’ problems. Yes, it is probably important for a future litigator to understand how to take a deposition. But if we teach that skill, it is not instead of teaching the doctrine that will support the theory of the case (and the ability to research and understand that doctrine), or even the theory behind the doctrine, which would allow the graduate to understand the doctrine more deeply, apply it appropriately and argue it more persuasively.
That is what we mean at Educating Tomorrow’s Lawyers when we talk about trying to change legal education so that we produce more practice-ready lawyers. It is not just about adding more skills training. Rather, it is about integrating that training into learning experiences that permit our students to learn both theory and practice in context – and, where possible, experientially."
For example, an attorney can't take a deposition without knowing the law that is relevant to a case. Therefore, a student can learn a chunk of law in taking a deposition, and the student will probably remember and understand that law better by applying it.
Dean Katz also talks about life-long learning:
"But life-long learning is hardly at odds with practice-readiness. . . . Practice-readiness embraces effective problem solving, which means being able to collect information, learn and adapt. And perhaps more importantly, practice-readiness requires a sense of professional identity, which includes the value of professional development."
As the old saying goes, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime."
Tuesday, December 20, 2011
These are the Top 10 Google searches for the year just passed listed in descending order per the search engine itself in a post called Zeitgeist 2011.
10. iPad 2.
9. Steve Jobs.
6. iPhone 5.
5. Battlefield 3 (the videogame).
4. Casey Anthony.
3. Ryan Dunn.
1. Rebecca Black (who?).
Hat tip to The Business Insider.
The American Dialect Society is soliciting nominations. Last year, it selected “apps.” According to linguist Ben Zimmer, chair of the New Words Committee and Boston Globe columnist, the front runner for 2011 is “occupy.” Other words he likes are “Arab spring” and “bunga bunga.” Some phrases made popular by Charlies Sheen have faded. Remember “tiger blood” and “Adonis DNA?”
What’s the relevance of all this? If my students are writing or speaking as advocates, I would encourage them to find a way to incorporate trendy words into their advocacy. The words will get the attention of the audience, which will already have some conceptual context for the flavor and meaning of the words, even if the student uses the words in a slightly humorous way.
Here is a link to a conversation with Ben Zimmer on NPR.
Law students struggling with defining and narrowing a paper topic should consider looking at an issue where there is a circuit split. Here are a couple of tips and resources for finding those topics:
Topic/Key # searching on Westlaw for jurisdictional splits:
- Topic #106 (Courts) – key numbers 90-98
Other Helpful Search Queries – finding jurisdictional splits:
- Court Circuit /5 split & date restriction to pull recent cases
- ALLFEDS – sy,di(split conflict /s circuit authority) & date restriction to pull recent cases
- SCT-PETITION: “employment discrimination” (or other topic) & split /s circuit authority
- For state law – MN-CS: co(low) & “first impression”
- Add terms to narrow it down to an area of law (i.e. A.D.A.) or use a topical database
Petitions for Certiorari:
- Petitions that are denied may be better source
- U.S. Law Week – search circuit /5 split
- Can also set up alerts on Westlaw & LexisNexis:
e.g. Topic 170B (Federal Courts) & Key #452 (Certiorari) & HE(conflict)
Law Review Databases – Westlaw, LexisNexis, HeinOnline
- Search on the introductory signal “Compare” in law review database
- Seton Hall Circuit Review – “Current Circuit Splits” column
- Split Circuits
- Circuit Splits (new Nov. 2011)
I strongly urge law students not to leave their upper level writing requirement for their last semester of law school. This can be a great summer project after 2L. It’s never too early to start researching and refining a topic!
Legal education reform is not about radical changes in legal scholarship. While legal education reform obviously needs scholarship on new approaches to teaching, it does not require that all legal scholars or even most legal scholars change their scholarship focus.
As Brian Leiter has noted: "In every academic field--including the hard sciences and medicine--most of the "scholarship" produced is ultimately worthless. But we have no way to sort the wheat from the chaff ex ante anywhere. We let a thousand flowers bloom, and hope that one or two will survive for a generation or more. " He continued: "The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it "helps." Of course, we know from history that genuine knowledge often helps with a host of practical and concrete problems, but it is the central premise of a research institution that the measure of its achievement is the quality of the scholarship, i.e., its contribution to knowledge--whether of law or biology or literature--not its practical pay-off in the short-term." He concludes: "That we need more diversification of missions among American law schools shouldn't obscure these facts central to the mission of universities."
A law professor doesn't have to undertake legal education scholarship to teach law school courses. An evolutionary biologist can teach a basic course in biology. A musicologist studying Beethoven's sketches can teach a basic course on music of the classical period. A law professor who studies how evolutionary biology applies to law can teach a course on legal writing or civil procedure.
I hope that many legal scholars will undertake legal education scholarship, and many already have. However, the fact that we need legal education reform does not mean that all legal scholars have to work on legal education. Anyone who tries to raise such an argument is raising a red herring.