March 31, 2012
24 April Fools Pranks by Companies
Compliments of Boston.com. Here’s one:
YouTube joined in the April Fools' fun in 2011, changing its logo and promoting a video that claims to show the site's most popular videos from 100 years ago. A post on the company's official blog includes a "reprint" of the text that accompanied site's 1911 launch, which consisted of a guest blog by then-President William Howard Taft.
Also to go along with the antique feel, YouTube added a video extension that allowed users to see any video on the site in a silent film format.
This link will take you to the video for this one.
Put the “Brief” in “Briefing”
The Third Cicuit is cracking down on long briefs. It wants lawyers to confine themselves to page/word limitations in briefs set forth in Fed. R. App. P. 32(a)(7). Noting that “motions to exceed the page/word limitations for briefs are filed in approximately twenty-five percent of cases on appeal, and that seventy-one percent of those motions seek to exceed the page/word limitations by more than twenty percent,” the Court adopted a standing order appointing a three-judge panel to rule on motions to exceed word limits, adding that such motions are “strongly disfavored and will be granted only upon demonstration of extraordinary circumstances.”
(Thanks to the Disciplinary Board of the Pennsylvania Supreme Court)
ABA Techshow offers advice for small firms and solos
From the kickoff program called "The Future of Practice" comes this advice: 1. provide "old school" personalized customer service to clients (like shopkeepers did back in our grandparents' day); 2. you must develop a "robust" web presence; and 3. you must find ways to offer services that can't be obtained from the automated document prep companies like LegalZoom.
New technology will drive the future of law back to the customer service era of your grandfather. However, clients are being aided by Facebook, Twitter, weblogs and reviews posted on Yelp and other social media communities as they seek to establish more personal relationships with their attorneys and increase communication—and even collaboration—on matters.
This return to a time when customers formed personal relationships with shopkeepers and service providers was a dominant theme at last night’s ABA Techshow kickoff event, LexThink.1: The Future of Law Practice.
. . . .
“The more important you are to the circle of commerce, the more you are going to get sucked into the information web,” said Mark Britton, founder, CEO and president of Avvo, an online directory that rates lawyers and doctors. “People want to know about you, your practice, your partners and the services you offer. Consumers want lawyers to interact with them and have a conversation.”
In fact, 97 percent of consumers expect companies to have a robust Web presence, and many look to videos posted on YouTube and Vimeo as ways to get to know lawyers and make hiring decisions, said presenter Roe Frazer, managing director of Digomé, a company that designs Internet marketing campaigns across social media platforms.
Those lawyers that fear or fail to embrace social networks and blogs will see their business leave them for Web-based legal services companies or their practicing peers that do embrace the Net, Frazer said.
The dominance of LegalZoom—the country's largest online legal document service company—in the solo and small-firm marketplace was the elephant in the room addressed by speaker and ABA Journal Legal Rebel Richard Granat.
“In the last 18 months, I’ve seen dozens of [document automation startups] coming out of the woodwork, and the technology is getting better,” Granat said, adding that 57 percent of solo lawyers don’t have a website. Granat is founder of DirectLaw, which he describes as "a virtual law firm in a box."
“[Lawyers] have to lead, be distinct, be competitive and incorporate all strategies to define what is unique to [their] credibility and trustworthiness,” Granat said. “Our profession is endangered in terms of solos and small firms. LegalZoom is going to eat their market share for lunch.”
You can continue reading here.
March 30, 2012
Solicitor General's oral argument in Obamacare case called a "train wreck"
Across the land it's 1L moot court season. That means as a legal skills professor you may be looking for examples for your students of how to, and how not to, argue your case. Some commentators are calling Solicitor General David Verrilli's argument before the U.S. Supreme Court on Tuesday in the Obamacare case one of the worst ever. CNN's Jeff Tobin called it an "awful performance" - a "train wreck." Mother Jones called it one of the most spectacular "flame-outs" in Supreme Court history. Given the importance of the case to the Obama administration, they may be right - though on its surface Verrelli's argument isn't obviously less competent than the typical, reasonably prepared practitioner and it certainly comes nowhere close to this infamously bad 7th Circuit oral argument.
But if you think the audio of Verrilli's argument might provide a learning experience for students, or at the very least serve as a timely example of what an appellate argument sounds like, you can click here to get it along with a written transcript courtesy of NPR.
Princeton Review Is Selling Its Test Prep Business
Many college students take commercial prep courses to get ready for the LSATs. Princeton Review has been a prominent choice. However, Princeton Review has announced that it is getting out of the test-prep business and selling it to another company:
Princeton Review Inc. has agreed to sell its test -preparation business and the "Princeton Review" brand to private-equity firm Charlesbank Capital Partners for $33 million, shedding its biggest unit and shifting its focus to its online education operation.
The company, best known for its tutoring services and college guides, entered the online education market in December 2009 with the $170 million purchase of Penn Foster Education Group Inc., which at the time ran three distance-learning schools for more than 223,000 students. The schools offer high-school diplomas as well as vocational training and college degrees in business, health care and other areas.
The Penn Foster venture effort got off to a slow start, and growth has remained elusive. In November, the company reported that third-quarter revenue at the Penn Foster segment declined 10% to $21 million, which it attributed to lower enrollment. The Higher Education Readiness—or test prep—unit saw revenue rise 9% to $33.4 million during that period, the latest available, as publishing-related royalties offset declining enrollment in classroom tutoring.
Here’s the story from the Wall Street Journal.
March 29, 2012
California's LaVerne School of Law gets provisional ABA accreditation (again)
There are now 19 - yes 19! - ABA accredited or provisionally accredited law schools in California. From The Faculty Lounge:
Last spring we watched the unfolding saga of the University of LaVerne School of Law. The then ABA provisionally accredited law school lost its bid for full accreditation and instead got stripped of provisional accreditation. The school waived its right to submit written comments and the ABA waived the ten month waiting period for reapplication. In January, the dean resigned. Now the school has again received provisional accreditation from the ABA. The letter is here.
If you include all the state-only accredited and unaccredited schools, California has a total 62 law schools according to this list on Wikipedia. Incredible!
Lexis drops free case law portal
From the blog Internet for Lawyers:
Free, current case law research has disappeared form LexisNexis Communities.
LexisONE, originally launched in July 2000 as a free legal portal by Lexis, was re-launched in December 2008 as LexisONE Community, and relaunched again in September 2011 as LexisNexis (LN) Communities. According to Lexis, “LexisNexis Communities have replaced the lexisONE Community to provide you with access to more innovative, up-to-date content and resources across multiple practice and professional areas. Even though lexisONE Community will no longer be available, you will still be able to access the same Forms and Free Case Law [emphasis added] which were offered through lexisONE, but now through a broader extension of our Communities.”
On February 24, 2012, as we were revising the 12th edition of The Cybersleuth's Guide to the Internet, we noted a dramatic change -- the removal of any links to what we considered the highlight of the portal’s free resources: its full-text searchable case law database. Although there has been no announcement from Lexis, the home page now says, “Even though lexisONE Community will no longer be available, you will still be able to access the same Forms which were offered through lexisONE, but now through a broader extension of our Communities.” Notice the reference to “Free Case Law” no longer exists. Although the database is still online, it will take a cybersleuth to find it (or just use this URL:http://linkon.in/sRr0mt). If you click the Browse through State Courts for free or Browse through Federal Courts for free (at the bottom of the page), you will see that no cases have been added to the database since December 2011. It is unclear if the database will be kept online. We suspect not since the links to it have been removed and it is no longer an up-to-date database.
Sponsor of Florida’s “Stand Your Ground” Law Says It Doesn’t Apply to George Zimmerman
Recently, National Public Radio interviewed Florida State Representative Dennis Baxley, co-sponsor of the statute on which George Zimmerman relies to justify his killing of Trayvon Martin. Rep. Baxley stated that the statute does not justify what Zimmerman did:
From my review, I certainly - it certainly wasn't the intent of any of us to protect anyone who was pursuing and confronting other people. It was when an individual law-abiding citizen was the subject and the victim of a violent attack. And an investigation always has to be done to determine that. I think in this case the important thing is we have a template moving forward.
Still, he continues to endorse the statute. Here is the interview with Neil Conan of NPR’s Talk of the Nation.
The Obamacare Arguments and the Importance of a Judge's Body Language
Last night, I watched coverage of the Obamacare arguments on several networks. One of the networks interviewed Senator Mike Lee. He concluded that Justice Kennedy would probably vote to strike down the individual mandate based on Kennedy's questions and Lee's observations of Kennedy's body language and facial expressions.
I don't know if Lee's conclusion is correct. However, it illustrates the importance of observing body language in the courtroom. Observing the judge's body language (or the jurors') gives insights into what the judge is thinking. Most attorneys seem oblivious to what the judge is doing during a hearing or trial; they concentrate instead on their own presentation or what their opponent is doing. Wouldn't it be helpful to have some understanding of what the judge is thinking?
You don't have to be an expert in body language to read a judge. One time, I was second chair for the defendant in a bench trial. There were only two witnesses; the plaintiff and the defendant. There were two issues in the case, both of which we had to win to prevail. As my co-counsel was cross-examining the plaintiff, I observed the judge. During my co-counsel's questions on the first issue, the judge perceptively nodded his head up and down, as if he were agreeing with my co-counsel's questions, but, during the questioning on the second issue, the judge sat still. When he was wrapping up the cross-examination, my co-counsel asked me whether he had left anything out. I told him that we had won on issue one but that he needed to ask more questions on issue two. He asked a few more questions on issue two, but nothing that really clarified the issue. After he finished his cross, my co-counsel moved for a directed verdict. The judge stated that he was satisfied that we had won on issue one but that he wanted to hear our client on issue two. In other words, I had discerned what the judge was thinking from his body language. (We eventually won on issue two.)
Watching the judge doesn't always work, but I have several other illustrations of how I discerned the judge's thoughts from the judge's body language. Observing a judge's body language is important; a lawyer should use all available tools.
March 28, 2012
Florida may get another law school
The Daytona Beach News-Journal is reporting that a group of investors is considering opening a for-profit, stand alone law school in Daytona Beach. The school would be located in a former police department building and could be open for business as early as the fall of 2013. One of the principals believes that the Daytona Beach area is under-served in terms of lawyers and that a law school is just the ticket for creating good-paying, professional jobs in an area that needs an economic boost. If successful, this would bring the number of law schools in Florida to 14 including Cooley's plan to open a law school in Tampa.
A trio of partners from Jacksonville is looking into opening an independent law school in the building at the corner of Nova Road and Orange Avenue that was the city's police department for five decades.
The men interested in starting the school were in Daytona Beach on Tuesday to meet with city leaders and tour the building.
"You can see it as a law school immediately," attorney Steven Nemerson, who would be the school's dean, said after walking through the empty complex that has been added to and renovated a few times over the years. "There's no major structural issues. The tour was very encouraging."
City officials are interested in hearing more about the idea.
"I think your idea has a ton of merit," Deputy City Manager Paul McKitrick said during the meeting at City Hall.
. . . .
"When I talked to people looking for a law school, I said why not Daytona Beach?" Taylor recalled. "I believe the building could easily be converted to classrooms, and it's certainly in a great location."
Taylor said he believes all the building's renovations can be done for less than $1 million.
"It would make a wonderful addition to our city," Taylor said.
Smith, who served on the Jacksonville City Council and in the state Legislature, is a friend of Taylor's and the two have worked together on the idea.
"It's very exciting to us," said Smith, who like Nemerson has been a law school professor. "It's something we thought about for a long time."
The developers' vision is to create a law school that wouldn't be affiliated with any college. They would build their school from the ground up, crafting it into a small institution that would offer plenty of mentoring, lower tuition and quicker journeys to a law degree than traditional law schools.
They foresee starting with about 80 students and 12 staff members, and expanding by their third year.
Smith said they chose Daytona Beach because they had "a hunch it's under-served. This area is ripe for a law school."
He said the group is working on lining up investors in New York, and if all goes well with the city they would pursue an educational institution license from the state and accreditation from the American Bar Association.
You can read more here.
Dealing with the Dangerously Disruptive Student
A situation we all dread. From Inside Higher Ed:
The YouTube video of a Florida Atlantic University student losing control last week in a classroom and threatening her classmates has gone viral, disturbing many who teach in college classrooms. Campus safety experts say that the clip reveals challenges faced by faculty members who are usually the first point of contact when it comes to disruption in the classroom -- and who sometimes may not be trained on how to respond.
The incident at Florida Atlantic ended when campus police used a Taser on the student and took her to a mental health center, but not before she had uttered a stream of racially charged profanities, screamed death threats and smacked at least one classmate.
The link contains the video, which is very graphic and violent. It also offers advice: immediately cancel the class and call security, before the matter begins to escalate.
Watching the video, I see a young instructor who is probably a teaching assistant and dressed very casually, like a student, and who just stands there passively, presumably because he has no idea what to do. I would instruct a TA to dress authoritatively for the job and give him or her some training on how to handle difficult students.
Transcripts of Day 3 of Obamacare Arguments
Tips for Creating the Exceptional Client Experience
This post from Jeff Rutledge at Solo Practice University gives some advice on how to treat clients so that they have a great experience.
“For those who struggle – not because of intent but because of lack of experience – with client service, the following advice is a very short list of the things you must do to thrive in a client-service-driven world. If you follow this list, you cannot go wrong.”
Mr. Rutledge gives the following 5 tips:
- Welcome clients to your office or meeting with a warm, friendly and genuine greeting.
- Use the client’s name whenever possible.
- Give clients your undivided attention.
- Maintain a positive attitude with every client.
- Walk clients out at the end of a meeting; thank them and give a warm, friendly goodbye.
Good advice for our multi-tasking law students!
March 27, 2012
Stanford Law School's Comprehensive Curriculum Reform
Stanford Law School has posted a description of its curriculum reforms on the Educating Tomorrow's Lawyers Website.
"Stanford Law School recently completed the first phase of the comprehensive curriculum reforms it began in 2006. Here are some examples of what we have done.
We have utilized the whole university to create a multi-dimensional legal education that combines the study of law with other disciplines so that our students gain domain knowledge in their area or practice.
We have developed interdisciplinary team-oriented, problem-solving courses (such as how to bring an invention to market—evaluating the technology, drafting a business plan, protecting intellectual property, and managing the regulatory process).
We have greatly expanded clinical training and have organized clinical courses under the umbrella of a single law firm (The Mills Legal Clinic). We introduced clinical rotation—based on the medical school model—with no competing courses or exams.
We have expanded the international dimension of our curriculum to emphasize international business, trade, and tax, as well as national security, integrating this new emphasis with our traditional public international law curriculum.
We have developed a wide variety of new programs to give law students direct experience of studying and working in a global setting (study abroad and student exchange programs, enlarged opportunities for externships and summer jobs abroad, an international clinic, and rule of law and development programs that have students doing work in countries around the globe including Afghanistan, Bhutan, Timor Leste, and Iraq).
We have enlarged and modified student and faculty research opportunities through the launch of a dozen new research centers and programs, in areas as diverse as constitutional and criminal law, energy, corporate governance, the legal profession, and more."
If a top law school like Stanford can implement educational reforms like these, any law school can. I especially like their interdisciplinary team-oriented, problem-solving courses. This hands-on experience of complicated commercial transactions is what today's law students need. Their clinical programs also appear to be innovative, particularly their use of clinical rotations.
The number of non-equity partners grew in 2011 while total equity partners declined
The path to the 1%'ers just got a little narrower according to a recent survey by the National Law Journal of the 250 largest law firms. The ranks of non-equity partners grew by 8% last year while the number of equity partners at these firms actually declined. From the NLJ:
The number of nonequity partners at NLJ 250 firms — The National Law Journal's list of the largest 250 firms in the United States by attorney headcount — climbed by 7.8 percent, up to 20,687. At the same time, the number of equity partners fell by 1.6 percent, to 32,698. The survey, published on March 26, measured full-time equivalency positions during 2011.
Those numbers aren't likely to shock anyone who has been following the legal industry during the past four years, as firms used de-equitization to prop up profits per partner and sought flexibility regarding underperforming partners.
"The recession and the loss of business has led many firms to assess the status of their equity partners," said Joel Rose, a consultant based in Cherry Hill, N.J. "The partners you see being de-equitized are the ones not bringing a sufficient volume of revenue, or not meeting the firm benchmarks. Just being a superior legal mind isn't enough to make partner or stay an equity partner these days."
. . . .
Still, "the drawbridge across the moat from employed lawyer to equity partner is being pulled up," he said. "The increase in the number of income partners indicates that it continues to get harder to make equity partner. As the squeeze continues on law firm profitability, equity partners are reluctant to increase their numbers."
You can continue reading here.
How stenographic live streaming services are changing deposition practice
Not having taken a deposition (nor, thankfully, been the subject of one) since entering teaching more than 15 years ago, I've admittedly lost touch with the way technology is changing deposition practice. Thanks to the blog Rethinc.k for making me aware of stenographic live streaming services that allow attorneys to "attend" depositions remotely via a laptop and receive not only a video and audio feed, but also an electronic transcript in real time. That means attorneys back at the office, or your expert, can monitor the depo remotely and suggest questions or strategize with the attorney who's in the room taking or defending the depo. The video below demonstrates how such a service works (we're not affiliated with this company - I just picked it at random. There are several other companies offering similar services).
Jason at Rethinc.k raises the question whether attorneys, or others, "attending" a deposition remotely must disclose this and whether this sort of thing might violate local procedural rules about deposition practice (when I practiced in Massachusetts, I believe depos were considered to be open proceedings that any party or witness could attend subject to the permission of the host to be on the premises). Interesting questions and game-changing technology to be sure.
Justice Alito: Briefs are More Important Than Oral Argument
Justice Alito has confirmed what we already know. From last May in the News Tribune:
“Oral argument is a relatively small and, truth be told, a relatively unimportant part of what we do,” Alito said.
The justices often read 500 pages or more of briefs before hearing a case — 2,000 words in one recent case, Alito said. Oral arguments typically last just an hour.
With all of that preparation, “when we do take the bench, we are really primed for the argument,” Alito said. As evidence, he noted that last year, 40 percent of the words spoken in arguments before the Supreme Court were uttered by the justices, who averaged 120 questions per case — roughly two each minute.
I’m sure Justice is correct when dealing with cases as the appellate level. I am unsure whether his statement would hold true with pre-trial motions.
Transcript of Day 2 of Obamacare Oral Argument
March 26, 2012
Another Innovative Skills Program: Vermont Law School's General Practice Program
Vermont Law School's General Practice Program incorporates the principles of the Carnegie Report in all of its 12 courses, which are simulation-based and taught by a team of regular and adjunct faculty.
"The General Practice Program (GPP) complements the traditional JD curriculum, preparing students to be general practitioners who must provide a range of legal services. The program also provides an alternative for those students who learn best in a hands-on manner. The program meshes substantive law with professional skills; classes are structured to simulate a law firm with professors acting as senior partners, overseeing the student 'associates' as they perform a broad range of legal activities—leading role-playing clients through divorce proceedings, conducting title searches, providing legal counsel for school districts, handling employment grievance cases, producing wills, preparing for civil and criminal court appearances—in and outside of classes. Students are exposed to the legal professional culture through their interactions with GPP faculty, student colleagues, and their mentors in the Mentorship Project."
"The GPP is a two-year, four-semester program, for second- and third-year students. Each semester has from one to four components totaling four credit hours. The components, taught by a mix of regular faculty and experienced practitioners, may include: GPP I: Domestic Relations GPP II: Real Estate Transactions/Environmental Problem-Solving/Commercial Transactions/Employment Law GPP III: Criminal Law/Representing Entrepreneurial Business/International Intellectual Property GPP IV: Estate Planning/Personal Injury Law/Municipal Law/Landlord-Tenant/Bankruptcy."
"Throughout the four semesters students learn and practice a variety of skills: drafting, counseling, interviewing, mediation, negotiation, oral argument, and pre-trial preparation. Students also confront and resolve ethical issues in their roles as attorneys." "Students have the option of participating in an experiential or clinical program, such as the South Royalton Legal Clinic or Semester In Practice, during the third or fourth semester in lieu of GPP III or GPP IV components."
"A General Practice Program Certificate is awarded to students who have successfully completed all four semesters of the program, in addition to their JD Diploma."
I have spent so much space on this program because I think it can serve as a model for other law schools who want to do something different. It prepares graduates for general practice, which is what many of our graduates actually do. (What an innovative idea!) It is not Vermont's only program. Vermont also prepares lawyers in a more traditional way, and it is known for its environmental program. Let's give our students options, like Vermont has.
P.S. A hands-on manner is usually the best way to learn. This is how students learn how to paint, play the violin, become a doctor, become a scientist, etc.
Student Loan Defaulters Being Victimized by Debt Collectors Working for the Government
According to story on Bloomberg, those who have defaulted on student loans are also being victimized by debt collectors. The author relates, "The debt collector on the other end of the phone gave Oswaldo Campos an ultimatum: Pay $219 a month toward his more than $20,000 in defaulted student loans, or Pioneer Credit Recovery, a contractor with the U.S. Education Department, would confiscate his pay. Campos, disabled from liver disease, makes about $20,000 a year. 'We’re not playing here,' Campos recalled the collector telling him in December. 'You’re dealing with the federal government. You have no other options.'"
The author notes, "With $67 billion of student loans in default, the Education Department is turning to an army of private debt-collection companies to put the squeeze on borrowers. Working on commissions that totaled about $1 billion last year, these government contractors face growing complaints that they are violating federal laws by insisting on stiff payments, even when borrowers’ incomes make them eligible for leniency." "Education Department contracts -- featuring commissions of as much as 20 percent of recoveries -- encourage collectors to insist on high payments. Former debt collectors said they worked in a “boiler-room” environment, where they could earn bonuses of thousands of dollars a month, restaurant gift cards and even trips to foreign resorts if they collected enough from borrowers."
"Debt collectors are the subject of more complaints to the Federal Trade Commission than any other industry -- almost 181,000 last year. Within the past 17 months, three companies working for the Education Department -- including one that is majority owned by JPMorgan Chase & Co. (JPM)’s private-equity arm -- settled federal or state allegations of abusive debt collections. The companies didn’t acknowledge wrongdoing, and Chase declined to comment. The Education Department said the government investigations didn’t involve the companies’ work for the agency."
"'Student-loan debt collectors have power that would make a mobster envious,' Harvard Law Professor Elizabeth Warren, who helped establish the Consumer Financial Protection Bureau and is now running for a U.S. Senate seat from Massachusetts, said in 2005."
This article contains even more shameful practices here. According to the article, "the Education Department this week will hold meetings with industry, government and consumer representatives to consider requiring that debt collectors automatically offer payments based on income to defaulted borrowers who qualify. If approved, the rules could take effect in July 2013."
The situation reported by the article is terrible. Those who are already in trouble are being victimized by unscrupulous debt collectors working for the government. Hopefully, the Department of Education will do something about these awful practices.