April 21, 2012
The shakeout in the legal profession is long overdue
Although there's nothing new in this story from Bloomberg Business Week called "Law Firms Paying the Price," it does a nice job summarizing how the economic conditions of the past 40 years have led to a huge increase in the number of lawyers per capita in this country. We're now in the midst of the inevitable market correction that occurs when supply far exceeds demand except this time it's lawyers, not widgets, that no one wants.
In the 1960s and 1970s, increased regulatory complexity and corporate consolidation spurred growth in the size of corporate law firms and the fees they charged. By the early 1980s, law school had become a choice destination for top college graduates. American Lawyer began gathering and publishing revenue and profit statistics for top-grossing firms, ratifying the J.D. as a ticket to the upper class.
The high-tech revolution, globalization and Wall Street’s dubious expansion have generated still more demand for sophisticated legal services. In 1985 the 50 top-grossing firms had a combined revenue of $3.4 billion. If their collective top line had increased at the rate of inflation, it would have been the equivalent of $6.9 billion in 2010, [notes Michael Trotter, a corporate lawyer and author of a forthcoming book called Declining Prospects]. Instead, the figure rose to $48.4 billion.
“Hourly rates just went up and up,” Trotter says. Fancy lawyers charged whatever the market would bear.
. . . .[There is a] fundamental challenge facing the legal profession: At all levels, the industry suffers from excess labor.
The number of people with law licenses grew from 212,600 in 1950 to 1,225,000 in 2011 -- a sharp change from a ratio of one attorney for every 709 Americans to one for every 257. Forty- five thousand newly minted attorneys become available every year in a field with only 25,000 job openings. Law firms of all sizes laid off attorneys during the lean years of 2008 and 2009, and hiring has not fully rebounded.
. . . .
During the past year, unemployed young attorneys across the U.S. have banded together to sue their alma maters -- generally schools of modest repute -- for fraudulently exaggerating graduates’ job prospects. One such suit filed against New York Law School was dismissed in March by a judge who said aspiring attorneys should know the concept of caveat emptor.
Despite the disgruntlement of recent law school graduates, the decline of some white-shoe law firms has an upside. The number of people taking the Law School Admission Test has fallen by almost 25 percent in the past two years.
We have a lot of decrepit bridges in this country, factories that could use modernization, and clean-energy technologies that need inventing. It’s a moment for more engineers and entrepreneurs, not more lawyers.
You can read the article in its entirety here.
Hat tip to the ABA Journal blog.
Sometimes, a telephone call or face-to-face discussion works better
In today's edition, The New York Times offers advice about how to avoid annoying others (and possibly screwing up your career) with your e-mail. Most of the advice should be obvious and widely known by now, but apparently some people need reminders, like this guy who now says, “I seriously regret my lapse in judgment.”
Alina Tugend, “What to Think About Before You Hit ‘Send,’” N.Y. Times, April 21, 2012, p. B5 (national edition).
Reducing the Cost of Education
Educational consultant Jane Wellman recently gave a Q and A interview to the New York Times. Here is her major Q & A:
Q. What are the big things that need to be done to stop college costs from going up so fast?
We’ve got to change how we think about a lot of things that have been on autopilot, starting with things that people think of as fixed costs. Health care costs are growing faster than any other item. Right now, the math on this is that every dime in new tuition revenue that’s coming in is going out the door to pay for health care benefits, and frequently that’s health care benefits for people students will never see in the classroom. We should be cutting employee benefits, restructuring administrative and support costs, and changing the way we provide academic services. And there’s no reason we should have as many payroll, procurement or I.T. offices as we do.
The rest of the interview is here
April 20, 2012
A great new guide to iPad apps for lawyers
At last count, there were more than 80,000 apps available for the iPad. Finding the best apps often can be an overwhelming, confusing, and frustrating process. ,iPad Apps in One Hour for Lawyers provides the "best of the best" apps that are essential for any law practice. In just one hour, you will learn about the apps most worthy of your time and attention. This book will describe how to buy, install, and update iPad apps, and help you:
- Find apps to get organized and improve your productivity
- Create, manage, and store documents on your iPad
- Choose the best apps for your law office, including litigation and billing apps
- Find the best news, reading, and reference apps
- Take your iPad on the road with apps for travelers
- Maximize your social networking power
- Have some fun with game and entertainment apps during your relaxation time
Framing Issues: The Buffett Rule Example
The proposed Buffett Rule would increase the tax rate for those making over $1 million per year. Proponents and opponents frame the issue differently. Opponents argue that the increased federal revenue would not significantly decrease the national debt and really is designed to promote class warfare. Proponents argue that the issue is fairness: the very wealthy shouldn’t be able to exploit the tax code to pay lower rates than average people.
As an exercise in persuasion, you might ask your students to be objective and decide which framing of the issue is more persuasive to Americans. You also might encourage them to come up with other ways to frame the issue persuasively.
Law Students Declare: Students Have a Right to be Heard
Another excellent post from Law Schooled here. Some excerpts:
"We students have the right to be heard, and we should be active in shaping our own law school experiences and the direction of legal education reform. . . . We are consumers of a good. That good is our law school education. . . . the fact is that you consumed a good (often costing hundreds of thousands of dollars), and you have the right to inspect that good, critique the good, and as individual stakeholders in the good, influence the development of the good. In other words, you bought it or are in the process of investing more payments into it, and if you think your legal education can be improved, you have a right to be heard when it comes to your thoughts on how to improve it."
Those of us in the legal education reform movement (for example, here) welcome the entry of law students--the consumers--to the legal education debate. I would like to compliment the editors of Law Schooled for the seriousness and civility of their posts.
For Our Law Student Audience: Brushing Up on Your Summer Research Skills
Nancy P. Johnson has written an article entitled, Best Practices: What First-Year Law Students Should Learn in a Legal Research Class, that I think would serve as a helpful source for law students to use to brush up on their legal research skills for their summer jobs. Just download a copy at SSRN and take it with you to work.
Note: SSRN is a webbase that contains scholarly articles for downloading. It is simple to use, and most of the downloads are free. You can use SSRN to look up what your professors are writing and what they are working on. You can also do a search to help find legal skills articles that you can download.
P.S. The author seems to have intended the article for legal research teachers. However, it also serves as an excellent review of legal research skills for students.
Free Legal Research Resource – The Public Library of Law
The Public Library of Law, sponsored by Fastcase, provides:
- Cases from the U.S. Supreme Court and Courts of Appeals
- Cases from all 50 states back to 1997
- Statutes (federal and all 50 states)
- Court Rules
- Legal Forms
Users can subscribe to case RSS feeds to help with any current awareness needs.
This is another good, free, starting point for researchers looking to be cost-effective!
Is this the "hollowing out" of the legal job market?
Here's a snapshot of the articles that have shown up in my inbox the past couple of days.
With regard to legal education:
LSAT volume is down, so fees are going up - from the National Law Journal.
Stetson Law School Wants You - from Inside the Law School Scam
10 Faces Behind The Incredible Law School Underemployment Crisis - from the Business Insider.
Law School Debt By the Numbers - From Bloomberg Law.
With regard to the legal job market:
The Biggest Law Firms Are Growing More Quickly Than the Rest, Survey Data Shows
- from the ABA Journal Blog.
NALP 2012: Good News, We’ve Probably Hit the Bottom
(the bad news is that it's here to stay) - From Above the Law.
The picture these headlines paint - the bloom being off the law school rose, recent law grads saddled with crushing debt who are unable to find jobs, BigLaw partners who offer "bespoke" legal services getting richer while solos may struggle to compete with LegalZoom and the like - suggest that the prophecy of Nobel Prize winning economist Paul Krugman about the "hollowing out" of the job market is coming true. It's hard to get one's head around the notion that we are truly witnessing the end of an era when an advanced degree would pretty much guarantee a decent middle class living. And if that's so, what's the alternative? What are people supposed to do who wish for a decent, middle class existence or is "middle class" the new "upper class" - an aspiration that many hope for but few will achieve?
April 19, 2012
Answering Disrespect with Respect
Good advice from the Minnesota Bar’s Bench and Bar. Here’s the opening paragraph:
During World War II, Josef Stalin and Winston Churchill had a difficult relationship, at best. The more abuse that Mr. Stalin heaped upon Mr. Churchill, the more correct, if not cordial, the Prime Minister was towards him. When asked why he did not respond to Mr. Stalin’s abuse in kind, Mr. Churchill is said to have replied that if he descended into the gutter with Mr. Stalin nothing that needed to get done would get done. Observers at the time noted that when Mr. Churchill refused to rise to Mr. Stalin’s bait, the Russian leader would settle down and get to the business at hand.
Learning to Communicate with Clients – Managing Expectations
This post from Solo Practice University has some good advice for learning what clients want to help manage client expectations.
Here are some questions that you may want to ask your clients:
1. “What outcomes are you trying to achieve?
2. Which of those outcomes are “Must Haves” and which are “Nice to Haves”?
3. What are your biggest concerns?
4. How do you prefer that we communicate with you?
5. How often would you want to hear from us?
6. What questions or concerns do you have about how this process will work?
7. What are your assumptions about how we will work together?
8. Is there anything you want from me that we haven’t discussed?”
The post also discusses a few things that all clients want and offers advice on how to meet their expectations.
- To be heard.
- To be understood.
- A solution to their problem or help in achieving their goal.
- To trust you.
- To feel respected and appreciated.
Hat tip Susan Cartier Liebel (@SoloPracticeU)
April 18, 2012
An interview with legal writing guru Ross Guberman on how to write a great brief
Ross is author of the fabulously well received book Point Made: How to Write Like the Nation's Top Advocates which we previously mentioned here. He is also the man behind Legal Writing Pro which offers legal writing training and consulting services to practitioners across the nation. What follows is an excerpt of Part 1 of a three part interview with Ross courtesy of our good buddy Nick Wagoner at CircuitSplits.com. Ross talks today about learning to improve your writing by picking great role models and brief writing lessons we can learn from the Obamacare case.
How can attorneys improve their writing?
Not by just “reading great writing.” If reading alone made you a better writer, then going to a Michelin-starred restaurant would make you a better cook.
Instead, ambitious attorneys should find some writing models or heroes. (My own book identifies 50 of the most influential advocates alive, for example.) Think quality, not quantity. So I’d rather see people dissect a single paragraph of a John Roberts or Elena Kagan brief than skim hundreds of pages of their opinions.
I also suggest studying choice excerpts from non-legal sources. Some of my favorites are the Economist, The New Republic, The New Yorker, and the Wall Street Journal.
You recently published a 140-comment critique of the Solicitor General’s brief to the U.S. Supreme Court in the Affordable Care Act cases. What are the key ingredients to writing an exceptional appellate brief?
From a writing perspective, an even better brief was the one that Paul Clement filed in the same individual-mandate litigation.
Continue reading Ross's style and structure tips for writing a great brief by clicking here. We'll let you know about more updates to the Q & A with Ross Guberman as they're posted on CircuitSplits.com.
A Lawyer’s Letter to His 4th Tier Law School
Good advice from Andy Mergendahl at the Careerist.com: Here is a significant excerpt:
Law school rankings are all about how much money you have. You don’t have enough money, so you are low-ranked. It’s just that simple.
You complain about how the rankings are a mess, and don’t measure how cool your professors and students are, but you keep trying to raise your ranking. The more you try to raise your ranking, the more harm you do to your students because you waste money on stuff US News cares about when you could be spending that money helping your students.
If you just announced to the whole world that you refuse to chase your tail this way any more, and you are going to dedicate all the energy and time and money you used to spend chasing a higher ranking to making your students as employable as possible when they graduate, you’d enjoy a number of benefits, like a ton of free publicity, a load of stress off your mind, and my admiration.
You might just start a trend among other (4th-tier) schools. Wouldn’t that be sweet? You could stick it to the Man! (Or Woman. You choose.)
You could also save money because you wouldn’t have to chase after slightly-more “desirable” students by offering them scholarships. (You recall, I’m sure, that you have to take away a lot of these scholarships after the first year because you don’t have enough money to maintain them.
A Model for Legal Education Reform
John Sonsteng has written a study of legal education, A Legal Education Renaissance: A Practical Report for the Twenty-First Century, which is an excellent model for legal education reform. It is published by Vandeplas Publishing, and it is available on SSRN.
Abstract: This article presents the history of legal education, criticisms, research, learning theory and innovative educational models in one place. They are interrelated and provide the basis for realistic solutions to the problems facing legal education, a legal education renaissance.
PART I - THE HISTORY AND STATUS OF LEGAL EDUCATION
Chapter 1 - Thinking Outside the Box and Richard Fosbury
Addresses the short-comings of legal education and the reasons why change is necessary. Law schools have the responsibility to teach and train students to become competent lawyers.
Chapter 2 - A Brief History of Legal Education in the United States
Provides facts that demonstrate legal education in its present day form is obsolete.
Chapter 3 - Roadblocks to Innovation
Provides an analysis of the roadblocks that stifle progress and prevent innovation in legal education.
Chapter 4 - Research and Recommendations
Provides a comprehensive guide to the research on legal education: The Reed Report, the Cramton Report, the MacCrate Report, the Zemans and Rosenblum Survey, the Garth and Martin Survey, the Minnesota Survey, the Binder and Bergman Survey, the Sheldon and Krieger Research, and the 2007 Report of the Carnegie Foundation for the Advancement of Teaching.
Chapter 5 - Learning Theory, Instruction, Curriculum Design, and Assessment
Provides an analysis of various learning theories and why a single approach to legal education fails to address the differences in how people learn.
Chapter 6 - What Others are Doing
Examines innovative teaching methods from all areas and levels of education which add to the traditional lecture-based education.
PART II - A LEGAL EDUCATION RENAISSANCE
Chapter 7 - A Legal Education Renaissance
Demonstrates how a Legal Education Renaissance can be achieved. The perspectives and recommendations in this work are presented with the intent of encouraging discussion about the future of modern legal education. It suggests a model for change, incorporates modern learning theory and teaching tools and provides answers to criticism by addressing curriculum, teaching, faculty, and costs. By offering a realistic, achievable solution that fits within the guidelines and rules that govern legal education institutions, it is not only possible, but essential to create a Legal Education Renaissance.
April 17, 2012
Yet another benchslap for an attorney arriving late to court (and other transgressions)
This is the second benchslap of the day based on attorney tardiness. This one involves a Nevada attorney who arrived 15 minutes late to a bankruptcy hearing and then tried to argue a motion by reading it from his computer screen. According to the judge, even the attorney's own client complained about the quality of his advocacy. The written admonishment from the judge is a doozy.
BRUCE A. MARKELL, Bankruptcy Judge:
The hearing on this Rule 9011 Order to Show Cause did not start auspiciously. After reserving a half-day for the hearing, the court waited to call the matter to allow debtors’ counsel, who was subject to the order and whose tardy arrival the court anticipated, extra time to arrive. After waiting almost ten minutes, the court took appearances, and only one lawyer–for a creditor–entered an appearance. One debtor was also present. almost ten minutes, the court took appearances, and only one lawyer–for a creditor–entered an appearance. One debtor was also present.
Without any appearance by the attorney or law firm named in the Order to Show Cause, the court indicated it would take the matter under submission and then prepared to adjourn. At this point, the debtor present asked to be heard, and the court allowed him to speak. As he was expressing his concerns about the poor quality of his counsel’s representation, his attorney – Jeremy Mondejar of the law firm of Barry Levinson & Associates – finally arrived. He was approximately 15 minutes
late. As he approached the lectern, he turned on his laptop computer, balanced it in one hand, and began scanning its screen apparently to determine what the hearing was about. He then made his appearance.
The lawyer’s subsequent performance, as detailed below, shows that he was unaware of what had been filed in the case and ignorant of the contents of the Order to Show Cause at issue. He floundered, showing an almost complete lack of preparation. It was painful for all in the courtroom, from the client who saw his money being wasted, to the court staff who all too often had seen similar performances from the same attorney, to the court who had to endure silences – sometimes approaching 30 seconds – as Mr. Mondejar attempted to understand and answer the court’s questions from information on his computer screen.
Were there ever a time to use “fail,” as the contemporary vernacular permits, it is now, and in reference to this deplorable display of legal representation: it was an epic fail.
Ouch. You can access a pdf of Judge Markell's full opinion here.
Hat tip to ATL.
Will proposed Daytona law school serve as model for lower-tiered schools seeking to compete?
Following up on a story we reported earlier about a new law school being proposed for Daytona Beach, Florida, one of the developers is providing more details about how they intend to attract students in a climate where law school applications have dropped sharply. Hire practicing attorneys who would rather teach than engage in costly (and time consuming) scholarship, save money by commandeering vacant properties rather than building shiny new facilities and focus on bar prep courses while ditching the vanity subjects. Through measures like this, the developers think they can offer a legal education for about 35% cheaper than prevailing rates. Here's more from the Florida Times-Union:
"Law students are absolutely being bled dry to get an education. It's the size of a home mortgage," Smith said of student loan debt. "I don't think it has to be that way. I think that an excellent legal education can be delivered for substantially less cost."
[Eric] Smith [an attorney and one of the principals] said his partners plan on meeting that goal through a number of approaches. The school hopes to attract practicing attorneys who "want to teach." Those educators, he said, would not need expensive retirement plans and would not be looking for lengthy paid time off to focus on scholarly work.
Moving into a building that is already standing and avoiding the traditional "trappings of impressive," luxurious structures will also help keep costs down, said Steven Nemerson, who has been tapped to serve as the school's dean.
A Jacksonville lawyer who has taught at law schools in New York and Minnesota, Nemerson said the potential school's focus on core courses — those that prepare someone to take the bar exam, for example — will leave little room for "vanity courses."
The group aims to tweak the traditional teaching approach by catering to non-traditional students and developing paths aimed at preparing students for a specific practice they choose.
"I have always been disturbed by the prevailing model of legal education," Nemerson said. "There is almost a uniform model of legal education that goes back probably 75 years. It is a one-size-fits-all model."
The proposed school has the support of at least one local politician. Continue reading here.
Not surprisingly, almost all the reader comments to the newspaper story are against the idea of another law school in Florida.
Hat tip to the ABA Journal blog.
Judge Fines Lawyer $500 for Being Late for Trial
A lesson for your tardy students. From the New York Law Journal:
An attorney who is representing 31 criminal defendants in pending cases has been fined $500 by a judge for showing up 35 minutes late for the start of a trial.
Acting Supreme Court Justice Suzanne Mondo in Brooklyn (See Profile) said Douglas Rankin ignored a court directive to appear for the beginning of a client's trial at 9:30 a.m. on March 5, despite having been warned that he would be fined if he was not in court at the appointed time. She imposed the fine after a March 23 hearing.
Mondo said Rankin entered court at 10 a.m. and then immediately walked out, talking on his cellphone or BlackBerry. The Brooklyn solo practitioner, who plans to appeal the ruling, returned five minutes later and blamed traffic on the Long Island Expressway and other roads for not being on time for the start of a welfare fraud trial for his client Marcia King.
"Although counsel knew that his timeliness on March 5, 2012, was of paramount importance, he clearly made no effort to arrive by 9:30 a.m.," the justice wrote in Matter of Imposing a Sanction Pursuant to Part 130-2 of the Rules of the Chief Administrator of the Courts (22NYCRR) v. Rankin, 6145.
The judge said that hundreds of adjournments had occurred in the cases, "wast[ing] hundreds of hours of court resources."
"In my experience, it's never been a time certain in any up front part especially when most of the time it's about trial," the lawyer told the court when pressed about why he was late, according to the ruling. "We're just being sent out for trial. I'm ready for trial. I'm ready to go Judge. I don't really see the prejudice here or any other issue than the Court seeking to create one."
Rankin’s lawyer said state court system figures about adjournments involving Rankin's cases are misleading.
For example, of the 66 adjournments between 2007 and 2011 in another case, People v. Remy, Grayson argued that 37 were attributable to either the district attorney's office or the court, not to Rankin.
April 16, 2012
Tips for reducing anxiety thereby improving test performance on final exams
Because anxiety limits working memory - "the mental scratchpad on which we combine information from our long-term memory with the specifics of the problem in front of us" to solve the problem at hand - learning how to manage nerves during an exam is key to performing well. Courtesy of the New York Times Education Life Supplement, University of Chicago psychology professor Sian Beilock offers some tips to students on how to rein in those performance defeating final exam jitters.
“When students are anxious about how they’ll do on an exam,” says Sian Beilock, a professor of psychology at the University of Chicago, “their worries use up some of their working memory capacity, leaving less of this cognitive horsepower to apply to the task at hand.”
Dr. Beilock, the author of “Choke: What the Secrets of the Brain Reveal About Getting It Right When You Have To,” offers two interventions that can free up working memory in students caught in the grip of test anxiety.
The first involves shifting how they interpret their bodies’ cues. Faced with a high-stakes situation, almost everyone has some physical symptoms of stress: sweaty palms, a racing heartbeat. But people interpret these cues differently, with important consequences for their performance.
In a study published last year in the journal Emotion, Dr. Beilock and four co-authors found that with students anxious about math, the more stress hormone they produced, the worse they did on a test; students with low math anxiety did better the more cortisol they produced. “The first group,” she said, “felt the rising anxiety in their bodies and reacted by thinking, ‘I’m really nervous about this test. I’m afraid I’ll fail.’ ” They choked. “The second group told themselves something like, ‘I’m really psyched up for this test! I’m ready to go!’ ” Dr. Beilock recommends consciously adopting positive self-talk. Remind yourself that damp palms and a pounding heart accompany all kinds of enjoyable experiences: riding a roller coaster, winning a sports match, talking to someone you have a crush on.
A second approach involves a simple exercise just before a test. For 10 minutes, write about your feelings regarding the exam to clear your mind of test-related concerns, freeing working memory that can be applied to the exam. In a study published last year in the journal Science, Dr. Beilock and her co-author, Gerardo Ramirez, said the technique worked both in the lab and in classrooms. Used by a group of ninth graders facing a biology final, the expressive writing task effectively eliminated the relationship between test anxiety and poor test performance: even highly anxious students performed just as well as non-anxious classmates.
What about expanding working memory's capacity? Is it possible? I think cognitive scientists are in agreement that the answer is "no" - evolution has already decided how much we get and that's that. But there are tricks we can teach ourselves that will enable us to hold more information working memory at a given time (See Moonwalking with Einstein: The Art and Science of Remembering Everything for a more detailed discussion of these techniques). In the meantime, Professor Beilock offers the short version of what is sometimes referred to as "chunking."
Cognitive scientists have not yet settled on how to expand working memory, but there are ways to make it more efficient. We can hold only about four facts or ideas at a time in working memory, but we can pack more information into those four slots by engaging in chunking, linking multiple pieces of information into a few meaningful groups. Phone numbers are a common example of chunking: 3-9-8-1-2-3-4 is easier to retain as two chunks, 398-1234.
More room can also be created in working memory by making mental operations automatic. Practicing a necessary skill until it’s second nature — say, memorizing a set of basic equations — relieves the working memory of the need to perform yet one more task during testing. You may know this as studying.
Does “Group Work” Work?
Swimming against the tide, college writing professor Greg Graham emphasizes the drawbacks of group brainstorming and group writing. Though some psychological studies support group work, others do not. According to psychologist Keith Sawyer, "Decades of research have consistently shown that brainstorming groups think of far fewer ideas than the same number of people who work alone and later pool their ideas."
These days, Graham has his students begin their work independently and later share their work product.
It's not that our students need to block out the thinking of others; it’s that our students need to learn how to work out their thinking on their own. As writing theorist Peter Elbow says, they need to learn to "talk reflectively to themselves." We can encourage this by dedicating large chunks of class time to solitary writing, providing writing prompts that provoke personal awareness, critical thinking, and intellectual curiosity. I do this, and for some of my students, these times of quiet in my classroom are the most reflective, meaningful times of their week. They’ve told me so.
In my experience, students are lucky if they land in a small group whose culture facilitates this kind of in-depth thinking. Unfortunately, there is a very real chance they will land in a group rife with anti-intellectualism, "getting by," and conformity. I can’t afford to take that chance; I’ve got a small window of opportunity to stir my students to great thinking and writing. So I’ll dictate the culture in my classroom
Here’s the article.
Campaign Against House Cyber Security Bill
This post from thehill.com discusses the campaign against the CISPA (Cyber Intelligence Sharing and Protection Act) bill.
“Groups including the Center for Democracy and Technology, the Electronic Frontier Foundation, the American Civil Liberties Union and Free Press are leading the campaign, which is titled "Stop Cyber Spying."
They are encouraging people to use the hashtags "#CongressTMI" (as in, "too much information") and "#CISPA" on Twitter to draw attention to the bill. The groups also have set up websites to help people contact their representatives in Congress.”
You can read the bill here.
Hat tip justiacom (@justiacom)