Tuesday, April 24, 2012
As I recall my years in the law firm, I learned a ton through conversations with the other associates and partners. Talking through issues was an important part of case development and skill building. This article from the ABA Journal discusses how the workplace is changing due to our reliance on electronic communication.
“The change is affecting the workplace, where people don’t talk in person. A senior partner at a Boston law firm told her about a typical scene in his office. Associates lay out their laptops, iPods and multiple phones, and put on their earphones. “Big ones. Like pilots,” the partner said. “They turn their desks into cockpits.” The office is quiet, Turkle writes, “a quiet that does not ask to be broken.””
This would be an interesting discussion with our students.
Monday, April 23, 2012
And speaking of the need for schools to think in non-traditional ways about legal skills training (see the post below), comes this article from the New York Law Journal called What They Didn't Teach You in Law School - Until Now: Building a management curriculum for lawyers by Professor Silvia Hodges. An excerpt:
In today's highly competitive legal market, it is imperative to bring more to the table than just excellent lawyering skills: an understanding of the business world and law firms as businesses. Clients are demanding it: The Association of Corporate Counsel's (ACC) Value Challenge has been urging law firms to reconnect the value and the cost of legal services since its start in 2007. The initiative is based on the concept that "law departments can use management practices that enhance the value of legal service spending; and that law firms can reduce their costs to corporate clients and still maintain strong profitability. The ACC Value Challenge promotes the adoption of management practices that allow all participants to achieve their key objectives."
Management practices? Traditionally, law students have graduated into the real world with little or no exposure to finance, economics, project and knowledge management, marketing and business development, or leading people: how businesses are actually run. And that's a terrible thing to do to them. "Given that AmLaw 200 firms are multi-hundred-million dollar per year enterprises, this naïveté can be dangerous to one's career," says legal industry commentator, Bruce MacEwen of Adam Smith Esq., LLC.
After all, the most solid foundation for figuring out what partners really want from you is to understand what you can do for them; they're the owners and they take home the profits. If you don't understand the connection between that and what you do as a lawyer, I wish you luck.
. . . .
No matter how we slice it, law school graduates today face a very complex and challenging market. To have a chance at success, these future lawyers need the tools to enable them, in time, to run law firms as businesses. Law schools have been criticized for not teaching lawyers practical lawyering skills. So let's equip them with the right tools. I started teaching the 2-credit electives "Law Firm as a Business" and "Law Firm Marketing" at Fordham Law School in spring 2010. The reaction I typically get to the concept of management education for lawyers is very positive. I hear variations of "There is a crying need for it." "I wish I could have taken your class." And "I'm surprised that no one has come up with this idea. Makes so much sense."
Yes, it makes so much sense. Some law schools, including Harvard, Fordham, Georgetown, Indiana, Hofstra, Pace, Temple, and George Washington University (GWU) offer courses on law firm/practice management within their JD programs. GWU's College of Professional Studies offers a master's degree in law practice management, and the University of Denver's Sturm College of Law offers an MS in legal administration. More and more law firms train their lawyers in practice management or project management skills. Milbank even sends entire classes of its associates to Harvard. This is very laudable, but I wish the majority of lawyers wouldn't graduate, practice, and become partners without having had any type of formal management education (and understanding).
The challenge is that lawyers have traditionally not thought management is particularly important. And it's not always easy to convince them they should learn something new. But, we don't know what we don't know. A friend of mine said it's "like the 12 step program: You have to admit that you have a problem." And who wants to admit that? What's more, even if one decides to give management training a go, there's the time commitment. If you have to bill, bill, bill, when would you have the "luxury" to take a moment and take an MBA-type class?
It's about showing people what's in it for them. Build "transition" courses that help them do their jobs better (just because someone is good at client work doesn't mean they have the necessary management skills to qualify them to lead a team). For example, senior associates on the verge of becoming (junior) partners need to focus on project and knowledge management, marketing and business development. Partners who are to be promoted to head a practice or regional office benefit from more project management in addition to leadership courses. Second- and third-year associates? Introductory courses on business and finance fundamentals, project management. And so on. At some point in their careers, lawyers should have touched all areas of managerial challenges and approaches necessary for success, including finance and law firm economics, marketing and business development, knowledge management and project management, leading and developing people.
Continue reading here.
Over at Inside the Law School Scam, Professor Campos has started a series of posts to discuss commonly held misconceptions about the current "law school crisis." In Part 1, which he posted today, he takes on one of the biggest complaints we hear these days that law schools don't actually prepare students to practice law. While these kinds of complaints have always circulated in certain segments within the legal academy, David Segal's piece last year in the NYT brought popular attention to the issue.
Professor Campos correctly points out that even if law schools tried to respond to the criticism by graduating more "practice-ready" students, it doesn't change the fact there aren't nearly enough jobs to go around and many people think the situation isn't going to get any better (Indeed, it might even get worse as technology and off-shoring further erode the domestic market for legal services). Campos then notes that most skills training - the hands-on, clinical kind not the "have-students-draft-a-contract-in-class" kind - requires small classes with low student-faculty ratios. Therefore, unless schools can come up with some outside-the-box ways to deliver this kind of training, the net effect will be to increase the cost of law school, push our students into further debt and thus leave our students even less able to financially compete in the legal services marketplace. So, we can offer more skills training to quell the critics but it won't help students one whit; to the contrary, it might make things worse for them.
I can't say I disagree with a portion of this. It's a conundrum we've discussed before on this blog. Adding more hands-on skills training opportunities usually means hiring more faculty which adds significantly to the school's overhead, though skills profs are most often paid a lot less than their doctrinal colleagues. Thus, solving the problem is going to mean breaking from tradition by shifting priorities away from professors who spend most of their time away from the classroom working on scholarship toward those who spend most of their time in small classrooms teaching legal skills. The elite schools will never go this route nor will those that aspire to be among the "elites." But it is a viable option for schools that either don't want to play the USNWR rankings game or can't realistically compete in that realm. For those schools, a cost-effective approach to skills training might be the only way to survive the law school shake-out which some believe is coming.
Paul Caron has posted on his Tax Prof Blog about a legal education reform symposium he participated in over the weekend. He focuses on a presentation by Jim Moliterno, who is writing a book on the law school crisis. Professor Caron writes, "I was particularly struck by Jim's observation that the root cause of the troubles facing legal education today can be traced to a fateful choice made 130 years ago: medical schools decided that their mission would be to turn out doctors, while law schools decided that their mission would be to turn out law professors." Of course, this is another statement of the "Langdellian Bargain," which we have discussed here before here, here, and here. Moliterno also discussed Washington & Lee's innovative third-year skills program, which I have mentioned previously as an excellent model for legal education reform.
If anyone who attend this conference has any more observations, please make a comment below or e-mail me.
Sunday, April 22, 2012
In Comparative Histories of Professional Education: Osler, Langdell, and the Atelier, Richard Neumann traces the origins of the Langdellian Bargain back to the beginning of modern legal education in the nineteenth century at Harvard. Part of Langdell’s revolutionary approach to legal education was "that masses of students could be taught law economically in large classes. . . . The only substantial investment in such an enterprise would be the library. Personnel costs would be low compared with revenue because of the large number of students in each teacher’s classroom. Teaching would be so financially efficient that a profit could be generated each year." While the profits were originally kept by the law school, today they are shared by the university and the law school. This bargain assured the law school’s security within the university structure. Neumann notes that "Among the benefits of the bargain to the faculty are leniency, compared with other parts of a university, in teaching requirements measured by the time needed to teach casebook courses, freeing up a substantial amount of faculty time for scholarship that is supported, for the most part, by tuition money." Similarly, he states, "The Langdellian bargain settled the financial arrangements through which legal education would enter universities. Large numbers of students would be taught, with little capital investment, and in most years law school revenues would exceed teaching expenses. That would provide resources for faculty to do scholarship on whatever subjects interest them."
While a number of law schools are trying to break out of the Langdellian Bargain, it still largely controls legal education today. One of the impediments to overcoming the Langdellian Bargain is the U.S. News Law School Rankings. These rankings reward law schools that are based on the Langdellian Bargain, and they penalize those law schools who want to be innovative. For example, the reputation rankings in U.S. News are based more on faculty scholarship than on teaching quality. Because law students rely heavily on the U.S. News rankings in making their law school choice, it is hard for law schools to ignore U.S. News.
Many throughout the legal academy have criticized U.S. News for the great harm it has done to legal education. Many critics of the U.S. News rankings have advocated eliminating them. While I agree that this would be a good solution, it is unlikely to happen.
I propose that, in the alternative, U.S. News employ dual rankings for law schools: A ranking for research schools and a ranking for practice schools.
This is not a radical proposal. U.S. News already does this for medical schools with two rankings: Best Medical Schools: Research and Best Medical Schools: Primary Care. All 114 medical schools that provided data to U.S. News are ranked in both categories. The factors (measures of quality) for the two rankings are different, with the research ranking using factors that indicate strong research programs and the primary care ranking using factors that emphasize educating primary care physicians. For example, peer evaluators complete two separate assessments--one of research programs and the other of primary care programs. Similarly, there are two separate assessments for residency directors--one sent to a sample of residency program directors in fields outside primary care and the other to residency directors in the fields of family practice, pediatrics, and internal medicine. You can see the other differences between the rankings here.
There is no reason that the same thing can't be done for law schools. All law schools would be ranked separately into two categories: Research Programs and Practice Programs. In fact, it would probably be easier for law schools because U.S. News could keep the same basic ranking factors. Evaluators (peer assessment and assessment by lawyers/judges) would do two assessments for all law schools--one for scholarly programs and the other for practice programs. The rest of the factors could remain the same, but the weight of the factors would change depending on the ranking. For example, the bar passage factor should receive considerably more weight on the practice program ranking than the research program ranking. Also, I would change the employment rates for graduates for the practice program rankings to count only those graduates working in jobs for which J.D.s are required.
I believe that law schools have two missions. The first one is the traditional one to produce scholars who can further our knowledge of the law and beome society's leaders. The second is equally important--to produce practice-ready attorneys who can provide legal services to society. Having dual rankings of law schools would further both these missions.
A recent change to the Associated Press Stylebook now permits the use of "hopefully" to indicate "I hope" in addition to its correct use as an adverb meaning "in a hopeful manner." The change occurred because the word is misused so often, most people treat "hopefully" as a verb anyway rather than as a modifier. This prompted the BBC News Magazine to consult with a number of language experts, including Grammar Girl's Mignon Fogarty and Black Law Dictionary's Bryan Garner, about other commonly misused words that have entered into accepted use and some that never should.
Begs the question This phrase is guaranteed to raise the ire of language purists. It describes a logical fallacy where one tries to prove a point by assuming the point is already valid: "Eating meat is immoral because meat is murder." But "to beg the question" is often used to mean "to raise the question", and that usage increasingly dominates, says Mignon Fogarty, author of the book Grammar Girl's Quick and Dirty Tips for Better Writing.
Fogarty set out to defend the traditional usage in her upcoming book, 101 Troublesome Words. "After scouring articles and blog posts and being unable to find it used in the traditional way I became convinced it was a lost cause," she says.
Bemused Bemused means puzzled or confused, but is often used to mean slightly amused or entertained. It's one of a class of words that the linguist Bryan Garner calls "skunked". Those who know the word's proper meaning are upset when they see it misused, those who don't know the proper meaning are confused when it's used correctly.
"A lot of editors will avoid it altogether," says Colleen Barry, a copyeditor for IDG Enterprise and creator of the @CopyCurmudgeon Twitter handle. Instead, editors and journalists will often find a way to edit out skunked words, which disappear from traditional publications. However, they can still live on in Tweets, blog posts and other unedited web content, where the meaning is less likely to adhere to traditional rules of style - and as a result, the "inaccurate" definition becomes more accepted.
Disinterested In the same way that interested once meant having a stake - interested parties, for example - disinterested meant having no bias or gain. If she's disinterested in the Olympics, she won't benefit financially from the games, or have a family member participate. "Interested" is rarely used in that form, which puts disinterested at risk.
"When the positive goes, you can't expect to keep the negative around," says Nunberg.
Now, disinterested is often used synonymously with "not interested".
"That's too bad, because there is an uninterested already which means the same thing," says Ben Yagoda, professor of English and journalism at the University of Delaware, and author of When You Catch an Adjective, Kill It. "Disinterested is kind of a cool word, there's no other word that means just that."
Nauseous Nauseous is the descriptor given to something that makes you feel sick, eg a nauseous odour. But people who are feeling unwell often say "I feel nauseous". Purists argue that they should say "nauseated". Many dictionaries and usage guides now list both definitions - and do so in response to the way people have continuously misspoke. "Dictionaries are about words as they're used, not as they think they should be used," says Barry.
Who/Whom Whom is on the way to becoming as archaic as "thou" or "thee", says John McIntyre, the night editor at the Baltimore Sun newspaper. It was his letter to the AP that prompted the change to "hopefully". "It's pretty much gone in spoken English and is increasingly abandoned in written English. You can see how precarious it is because when people use it, they often misuse," he says. "Increasingly it makes sense not to bother."
Click here to see how "anxious," "decimate" and "presently" have also changed meaning over time.
At the University of Virginia School of Law, 98 percent of the class of 2010 was employed nine months following graduation. That figure was 92 percent at Vanderbilt University Law School and 90 percent at Washington & Lee University School of Law.
All three schools reported those postgraduate employment rates to American Bar Association during an especially tight job market. Additionally, each reported that a relatively high 11 percent of their 2010 graduates were in jobs financed by the schools themselves.
That is just one nugget of information contained in an expansive database that the ABA has released on its Web site. The database contains far more detailed employment information than the organization has made public previously.
This article from the National Law Journal offers numerous examples of this practice.