January 14, 2012
Law Dean says both schools and practitioners bear responsibility for better training grads
From the blog MoneyLaw in which Louisville Law School Dean Jim Chen comments on the controversial series of articles by NYT's reporter David Segal (here, here, here and here) on the crisis in legal education. An excerpt:
Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.
Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism, perhaps even petty selfishness, to characterize the Times as being motivated by their writers and editors failing to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.
Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.
. . . .
The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.
We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.
Hat tip to Stephanie West Allen.
The Creeping Return of “Whomever”
In his January 5 New York Times column about Mitt Romney’s political fortunes, Nicholas Kristof writes, “For the general election, Intrade predicts that the Republican nominee (whomever it ends up being) has a 46 percent chance of winning the presidency in November.”
Grammatically, “whomever is wrong. It should be “whoever” In her column at the Chronicle of Higher Education online, Lucy Ferris bemoans the “creeping” return of “whomever.” She thinks its use can be “snooty.” In our legal world, we are snooty about grammar. Although we may be too slow to adjust to changes in language, I think we should continue to be snooty.
January 13, 2012
California bar considers mandatory law grad "apprenticeships"
From the ABA Journal blog:
The State Bar of California has formed a task force that will consider requiring law grads to get practical experience with clients before obtaining a law license.
California Bar President Jon Streeter tells the Daily Journal (sub. req.) the proposal is “still a concept in its infancy.” Among the ideas that will be considered: Mandating legal residencies, similar to those required for doctors, or allowing law school clinical courses to satisfy all or part of the requirement.
Julianne D'Angelo Fellmeth, a law professor at the Center for Public Interest Law at the University of San Diego, tells the legal publication that she supports "anything that can give law students a better sense of what it's actually like to practice law." But she also sees a potential downside.
Law students who aren’t picked for internships could be barred from the profession, she speculated. And such a requirement could lead to discrimination against students based on "race, gender, the number of piercings."
Good News and Bad News from New York Law Journal
There was good news in the New York Law Journal this morning: "Law school graduates will be allowed to count more credit hours from clinics, field placement courses and externships toward establishing their eligibility to take the New York bar exam under new curriculum requirements issued by the state Court of Appeals on Jan. 12. . . . The changes to §520.3 of the high court's attorney admission rules, which were proposed by the law examiners after consultation with law school administrators and representatives of the state bar, will increase to 30 from 20 the permitted clinical hours students can earn beginning in the 2012-13 academic year."
However, there was also bad news buried in the article: "A task force appointed by the chief judge has estimated that only about one in nine indigent parties seeking civil legal services in New York receive them because of funding shortages (NYLJ, Sept. 29, 2010)." It seems with all the out-of-work lawyers, we should be doing better than this.
(Scott Fruehwald) (hat tip: Diane Edelman)
Workshop for Clinicians Who Are Doing Scholarly Writing
Save the date: Applications are due by June 30 for the September 29 workshop at NYU.
The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.
Here is the full announcement. Thanks to Mary Lynch and her Best Practices for Legal Education blog.
Friday Fun – Move Over Food Trucks and Make Room for Law Trucks
This article from the ABA Journal about a “40-foot RV bringing justice to low-income individuals in New York” is great.
"The van is New York’s first legal services office on wheels… Lawyers from the New York Legal Assistance Group will be visiting at least seven sites each week in the RV to bring free legal advice directly to clients...The RV also has video capability, making it possible for clients to go before judges in emergency court proceedings. The New York State Office of Court Administration partnered with the nonprofit legal assistance group to launch the RV, dubbed the “Mobile Legal Help Center.”"
Very interesting approach to lawyering!
January 12, 2012
Six reasons why the opening statement is the most important part of a trial
From the blog of A2L Consulting:
Trials are structured in familar segments – opening statements, direct examination, cross-examination and closing arguments. Of those events, I believe that opening statements deserve more emphasis than any other portion of the case.
[Here are six reasons why].
- FRAMEWORK: It is a psychological truth that people like to place information in a coherent framework rather than deal with disjointed bits of data. As soon as jurors hear any facts, they will begin to connect the dots and fill in the picture of the events in their minds. Therefore, it is crucial that the framework that they use should be yours rather than the other side’s.
- WHO HOLDS THE TRUTH?: When the trial starts, jurors figure someone is lying and someone is telling the truth. The opening statement is when they initially reach these conclusions. The opening statement offers the best opportunity to grab and hold the high ground - while at the same time positioning your opposition as slippery.
- JURORS DECIDE EARLY: Jury research has shown that as many as 80 percent of jurors make up their mind immediately after hearing the opening statements. This may seem unfair or strange, but it is true.
- ATTENTION: Unless a celebrity witness like Bill Gates or Scarlett Johansson will be taking the stand, the judge’s and jurors’ attention levels will be at their highest during the opening statement. This is your opportunity to grab their attention with a compelling story and compelling demonstrative evidence and keep it.
- IT'S GOOD TO BE ROOTED FOR: People like to pick someone to root for early. Did you ever watch a sporting event with teams you don't know well? Don’t you normally pick a favorite early in the game? A trial is no different.
- ABC - ALWAYS BE CLOSING: As is true of all sales events – and a trial is a sales event – emotion is what matters. People buy on emotion and justify on facts. In jury trial terms, that means they decide after opening who is the emotional winner and spend the rest of trial and deliberation justifying their emotional leaning with the facts that fit best.
To read more and check out a relevant video clip, click here.
3rd Circuit says enough already with the lengthy briefs
From the ABA Journal blog:
A federal appeals court is seeing so many motions asking for permission to exceed word and page limits in briefs that it is warning lawyers they won’t be granted absent special circumstances.
In an unusual standing order, the Philadelphia-based 3rd U.S. Circuit Court of Appeals said motions to exceed the limits are filed in about 25 percent of appeals, How Appealing reports. Seventy-five percent of those motions ask to exceed the limit by more than 20 percent.
“Notice is hereby given that motions to exceed the page or word limitations for briefs are strongly disfavored and will be granted only upon demonstration of extraordinary circumstances,” the Jan. 9 order (PDF) says. Such circumstances may include consolidated appeals or complex proceedings. The order does not apply to capital habeas cases.
Those who want to file longer briefs shouldn’t wait until the last minute, the order warns. “Counsel are advised to seek advance approval of requests to exceed the page/word limitations whenever possible or run the risk of rewriting and refiling a compliant brief,” the order says.
A special three-judge panel will be appointed to rule on motions to exceed brief limits.
Legal skills-related scholarship: "Law and Harmony: An in-Depth Look at China's First American-Style Law School"
By Professor Anne M. Burr (Wayne State) and it can be found at 28 UCLA Pac. Basin L.J. 25 (2010). From the abstract:
Globalization has increased the demand for a global legal infrastructure, but a single worldwide legal system is unlikely in the foreseeable future. A better focus of discussion is what a “reasonably harmonized” global legal infrastructure might accomplish. One major goal is the facilitation of the legitimate interests of individuals and corporations who wish to transact across borders. Clients working across borders wish to be served by lawyers with different types of substantive knowledge, but with common analytical skills, common relationship skills, and a common understanding of what it means to be a lawyer. The demand has already led to rapid changes in the global practice of law; most significantly, the emergence of multinational law firms.
The growth of multinational law firms leads to the question: what are the essential skills that should define a transnational lawyer? A lawyer should be a problem solver, one who is adept at criticizing and synthesizing legal argument, but also one who is skilled in communicating and in assessing and influencing the perspectives of the recipient of the communication.
American legal education in the twentieth century excelled in teaching legal principles, but significant progress is required to maintain its superiority in the twenty-first century. American legal education can, and should, learn from overseas experiments.
On October 22, 2008, the Peking University School of Transnational Law (“STL”) was dedicated at University Town in Shenzhen, People's Republic of China (“PRC”). The ceremony was attended by jurists from around the world, including Associate Justice Anthony Kennedy of the United States Supreme Court. STL is mainland China's first Western-style law school. Over the course of the program, the students are thoroughly trained in both Anglo-American common law and civil law systems of Western Europe.
The training at STL compares with that of the best American law schools in terms of the subjects taught and the training and experience of the professors. In addition, STL students have the advantage of a background in “li”, the Confucian ethical code which emphasizes collective harmony and the primacy of interpersonal relationships. In the Confucian vision, social harmony rather than justice is the symbol of the ideal society. Ideally under Confucianism disputes are settled according to what is best for social functioning and interpersonal relationships, rather than in terms of legal rights.
The combination of skills practiced at STL has the potential to create a new “breed” of lawyer. If the hallmark of the transnational lawyer in a global economy is the ability to not only critique legal argument, but also to effectively communicate and influence the perspectives of the recipient of the communication, the students at STL should be well-positioned for success.
This article takes an in-depth look at STL, based on the author's firsthand knowledge acquired while serving as a Visiting Assistant Professor during STL's first year of operation. It compares STL with Chinese, transnational and U.S. law schools to conclude that STL students - with their training in Western critical legal analysis and transnational skills, as well as their heritage of valuing interpersonal relationships and compromise - are uniquely positioned to join the ranks of transnational lawyers. It also considers what U.S. law schools might learn from.
What Do Relatively New BigLaw Associates Make?
Here are some figures from Houston-based Andrews Kurth, which recently announced big raises for top performers:
The salary increase is for about 25 of the firm's 134 associates who have at least four years of experience and have worked 2,000 qualifying hours for each of the past two years, Jewell says. The qualifying hours include billable hours and nonbillable hours, such as pro bono matters and diversity activities, [the managing partner] says.
Top performers in the class of 2007 have a base salary increase from $175,000 to $230,000, effective Jan. 1, he says.
Associates in the class of 2004 have a base salary increase from $200,000 to $260,000, he says. He notes that they are the associates who have been receiving annual bonuses of $100,000 — the largest bonus amount the firm distributed to associates in December for 2011.
[T]he firm paid its associates 2011 year-end bonuses of up to $100,000. In 2010, the firm also paid associate bonuses of up to $100,000 in mid-December but came back just a few weeks later at year end with additional bonuses of up to $20,000 for those who had billed 2,200 hours or more, he says.
I guess those of us who chose the academic life really did it out of love and not for the money.
January 11, 2012
Review: Discovery Practice by David I.C. Thomson
Discovery has been a neglected subject in law schools. When I was in law school, there was one case and about four pages of text on this topic in my Civ. Pro. Book, and it is not much better today. Yet, discovery is one of the most important issues for litigators in practice. Discovery is the foundation for settling a case, terminating a case, or trial. Cases are often won or lost based on discovery. Strategy is very important in the discovery process, but lawyers are usually required to learn discovery strategy on the job by trial and error.
This lacuna has now been well-filled by Discovery Practice by David I.C. Thomson (Lexis/Nexis 2010), which is part of the Skills & Values Series. Thomson organizes the book around each of the major discovery devices, including how to answer discover. In each chapter, he gives an excellent introduction to each topic, presents the federal rules, then has exercises applying the topic of that chapter. There are also on-line materials, which supplement the hard-bound ones. Each chapter relates to a products liability problem at the end of the book, and they require students to write interrogatories, respond to interrogatories, etc. In the alternative, professors can use their own big problem. Thomson recommends that the professor pair up students so that each student has someone to serve and respond to.
There is a wealth of information in each chapter concerning discovery techniques, strategy for using that technique, and the ethics of discovery. The information contained concisely here would take years for a litigator to learn in practice. I am especially impressed by the great amount of strategy advice, as well as the concentration on the ethics of discovery.
I highly recommend this book. This book can be used as a text for a discovery course or as a supplement to a civil procedure class, a pretrial litigation class, or a trial practice course. It would also be of great value to practitioners who were not lucky enough to have had someone like Professor Thomson in law school.
Nevertheless, some might question whether a discovery course should be taught in law school. I have already set out above the great value of a discovery course to new litigators. Big clients today are often reluctant to pay for the services of first- and second-year associates, but they might be more willing to do so if the associates were better trained in discovery. Equally important, as I have stated before, skills courses don’t just teach skills; they teach doctrine, and students learn doctrine better when they have to apply it. It takes detailed knowledge of both the doctrine and facts of a case to draft useful interrogatories or requests for production of documents. Similarly, students have to use their legal reasoning skills in drafting and responding to discovery that goes beyond what is usually required in law school. Finally, is there a better place to learn discovery ethics, which is an essential part of discovery, than in a discovery class?
I would love to see a class that combined a subject like products liability and discovery. The students could learn the doctrine from a normal casebook on products liability, then they could apply what they have learned to discovery exercises using Professor Thomson’s book.
The Atlantic's take on structural changes in the legal job market
In this article from The Atlantic, the author explains that law, insurance and finance are three professions that experienced a net loss of jobs during 2011 despite signs that the rest of the economy might be improving. For the legal sector, this might be due to permanent, structural changes in the job market.
You might have heard there is no recession among college-educated workers, whose unemployment rate is a mere 4.1 percent. It's true that the jobs crisis is concentrated in the lower middle class. But even the rich have their own problems. Lawyers and Wall Street financiers are members of an exclusive club: The shrinking white-collar industry.
In 2011, finance, insurance, and law were the three primarily white-collar professions that managed to shed workers, even as the rest of the economy trudged forward through a slow recovery. Topsy-turvy financial markets were part of the problem for banks, insurance companies, and the law firms that work with multinational companies. But the job losses might also speak to fundamental changes in job sectors that traditionally absorb highly educated Americans.
Who are we talking about when we say "white-collar" professionals? It obviously isn't a term of art. But the Bureau of Labor Statistics' monthly employment figures include two broad categories that encompass the kind of college-educated office workers that we generally associate with the term. The first is "business and professional services," a 17.4 million person category which includes accountants, lawyers, architects, and engineers, among other job types. The second is "financial activities," which covers the securities industry, commercial banking, insurance, and real estate.
The two graphs below look at the shifts in each white collar sector using percent change and total jobs added or lost. I've included the high-skill job types from both major categories while excluding a few other jobs that don't necessarily fit the mold. Think temp agencies, which are included in business and professional services.
. . . .
The fact that the world might not need as many investment bankers and insurance brokers isn't a problem per se. But the fact that it could need fewer lawyers is. Outside of a few elite MBA programs, not many people get a degree specifically to become the next Will Emerson. But roughly 45,000 students do graduate from law school each spring. Most of them have taken on significant debt. And despite the old saw about being able to "do anything" with a law degree, they don't have the specific technical or quantitative skills to go into faster growing fields. While the overall unemployment rate for lawyers is a microscopic 2.1%, that doesn't take into account the trouble recent graduates are facing to find work that will soon pay off their debt. The industry is entering a period where it will be well oversupplied with talent. Unless a whole lot of old lawyers start retiring ASAP, that situation probably won't change.
So to all those potential JD's out there: it may be worth considering a different degree. I hear accounting is pretty hot right now.
Big tip of the chapeau to Elie Mystal at ATL.
What's it like teaching legal skills in Qatar
Here's the second installment from our guest-blogger Professor Rob Hudson on teaching legal skills in the Middle East (click here for his first post).
What is different about teaching legal skills in a Qatari law school as compared to a US law school?
There is only one law school and law is an undergraduate major. There are no night or part time studies or summer classes here. The students at the College of Law are more than 75% female. I am told many of the men go abroad to law schools in Egypt, Jordan, the UK, and the US for their legal education. There are five to six job offers for every graduate of the College of Law. Each Qatari graduate has the option to have a fully funded graduate degree in any country after they complete their LLB in law.
The campus at Qatar University is divided between males and females in all services, colleges, and facilities, including the library. A wall separates the campus between the male and female areas. There is currently a Women’s’ Library and a Men’s’ Library. In the almost completed unified library facility the male students will have access only to one floor of the building while the other four floors are reserved for female students. Faculty of both genders may go anywhere on campus without much worry although there are limits to that too. Almost all the females wear black abayas and the men dress in white thawbs. Classes are offered in male and female only sections.
The students at Qatar University typically take two years of foundational courses featuring the English language before being accepted into a degree program, such as law. So the typical law student has an ability to function in English. More than 50% of classes at the College of Law are in English. The College of Law also requires additional classes in Legal English to incorporate the specialized language of law. There is no LSAT or Bar Exam here so those standards are not applicable. The College of Law is discussing applying the Cambridge Legal English Exam to our students for standardizing legal language usage as well.
Importantly, there is a mix of legal systems and practice here in Qatar making the teaching of legal skills tiered and essentially students are on different tracks. Commercial courts in Qatar, like the one at the Qatar Financial Center, operate with case and client management principles similar to courts around the world. The Judges at the QFC Court are some of the top Justices from the US and the UK, including Lord Wolfe from England who visited us at the QU Legal Writing Center last term. College of Law students working in these settings need similar skills to US law students. US lawyers would feel at home practicing in these settings. The Court at the QFC is headed by a Barrister from the UK named Chris Campbell-Holt and he explained to me that law students practicing there would be expected to know legal English, common law principles, legal writing, research, and advocacy and mediation skills. In contrast, Qatari students entering practice in areas such as family and criminal law will go to the National Courts and will probably do more training after law school at the Centre for Judicial and Legal Studies. I met Mr. Mubarak, the Head of this Center at the Ministry of Justice, and was interested to learn they do not use either Westlaw or Lexis for research in the building and all resources are in Arabic.
To help provide individualized experiential learning for law students anticipating practice in any area the College of Law is working to establish a variety externships and a clinic for the first time. A moot court now is active and we have teams participating in competitions like the Vis Moot. Although the first International Review of Law was established at Qatar University it is not student edited. The College of Law adopted ALWD as the citation standard although OSCOLA and the Bluebook have a place in the scholarship and instruction here.
Legal writing and research is mandatory at the College of Law regardless of where our students want to go with their law degree and they must take LRW I & II as of last term. To help facilitate this we are focusing on accessing and training students on legal research databases with Arabic and English functionality. For example, the new Westlaw Gulf, Lexis Middle East Law, and Eastlaws support both languages to different degrees. Some services common at US law schools are not available in Qatar such as WestLawNext and Lexis Advanced. Despite my best efforts, I could not get access to the Lexis Citation WorkStation in the Gulf market but Hein-on-line is fortunately now part of our library collection as of last week. Finally, I just added CALI membership for our law faculty and students so we have the tutorials and resources of that organization. I will work on CILP next.
In my last post next week I’ll discuss life in Qatar as a faculty member and law librarian.
Dr. Rob Hudson
Qatar University, College of Law
PO Box 2713
The New Semester: Five Pieces of Advice
Professor Gina Barreca offers her advice:
1. No more late-night movies or TV.
2. Decide what you are having for lunch for the next 15 weeks. Wouldn’t it be great if you could really do that?
3. Wash, shave, dye, groom, shine, and polish. I did a bunch of posts a while back about what students find more distracting and disturbing about their instructors and it can be boiled down to this: If we look like slobs, or weirdos, or carnies, they won’t listen to us because they’re spending all their time looking at us.
4. Finish your review, conference proposal, article, story, poem, or magnum opus NOW. That’s what you planned to do over break, wasn’t it?
5. Remember that by the time this semester is over, there will be new leaves on the trees, real warmth in the air, and that several of your students will be graduating.
#1 is the advice I need to take. Those TCM movies that start at 10p.m. (e.s.t.) are a real temptation.
Recruiters Advising Job-Seeking Lawyers to Leave Advanced Degree Off Resumes
This ABA Journal article discusses an interesting approach to lawyers seeking jobs – leave your LLM off your resume.
"Some recruiters at Major, Lindsey & Africa advise lawyers to leave advanced law degrees off their resumés, according to the recruiting firm’s managing director, Steven John.... John said an advanced law degree can hurt lawyers applying for jobs because it can signal career uncertainty or an attempt to delay a difficult job hunt. John noted two exceptions: Advanced degrees in tax law or ones obtained by foreign-trained lawyers don’t hurt candidates....John said practice experience is most important. (emphasis added)"
For more information, see this post from Karen Sloan at the National Law Journal.
January 10, 2012
Price on IRAC: A Critique
Probably the strongest attack on IRAC (the small-scale paradigm) comes from Jessica E. Price (Slavin) (Imagining the Law-Trained Reader: The Faulty Description of Audience in Legal Writing Textbooks, 16 Widener L.J. 983 (2007)) (here).
Understanding Price’s attack on IRAC must begin with an examination of the main theme of her article–that legal writing textbooks (mainly Edwards; Neumann;and Shapo, Walter, and Fajans) present the legal audience as monolithic. She writes, "Specifically these textbooks offer surprisingly consistent messages about lawyers’ personalities, namely, that most lawyers are extraordinarily impatient with other people (even in their thinking and reasoning processes), aggressively critical, and conservative and formalistic in outlook." She believes that such unquestioning generalizations undermine law students’ ability to bring their individual voices into the law. She then declares, "I propose that instead of admonishing students that they should write more clearly and concisely because they share the traits of extraordinary impatience, aggressive criticism, and knee-jerk-formalism, legal writing teachers should engage students in specific, realistic, and critical thinking about the varied and changing audience for legal writing."
Price charges that legal writing teachers rely on their personal knowledge for what legal audiences are like and that legal writing teachers’ claim to authority is suspect. She bases the so-called generalization of audience by legal writing teachers as being caused by their insecurity, citing an article from the early 1990s. She continues, "My intention in this paper is to criticize legal writing education that presents students with an over-generalized image of the law trained-reader, without encouraging students to reflect about that image." Concerning the stereotypical audience traits mentioned above, she writes, "I cannot help but wonder if these characteristics are more accurate descriptions of the members of the legal writing teachers’ community than of law-trained readers in general. . . . And when I image the stereotypical legal writing teacher, I image some harried, red-pen-toting, grammar-loving soul like myself." She also criticizes legal writing teachers for being strict about form and format, including grammar.
Most importantly for this post, Price attacks legal writing textbooks for their rigid adherence to a small-scale paradigm. She declares, "many first-year writing textbooks instruct students to adopt an extremely formulaic approach to organizing writing about legal problems." She also criticizes these books for using the small-scale paradigm not only as an organizational tool but as an embodiment of the process of legal analysis.
Toward the end of the article, Price gets to her real argument–that legal writing teachers and textbooks are muting "the voices of groups traditionally underrepresented in the law." She thinks that there is no reason that lawyers can’t use a human voice to communicate their legal arguments. She also believes that "there is also a place in law practice for patience, consensus, and pragmatism." Price wants legal writing classes to produce "self-reflective insiders." She also wants legal writing teachers to assign rhetorical readings of mainstream texts (Supreme Court opinions) and to introduce "critical" texts. In sum, she wants us to acknowledge "identity dissonance."
My first criticism of Price’s article is that she tries to make legal writing textbooks appear more rigid than they are; she uses exaggeration to create a straw man. None of the legal textbooks states that legal writing has a monolithic audience. On the other hand, most of the textbooks stress the need to understand the audience. For example, Edwards states, "This need to know to whom we speak is more than a helpful tool; it is a fundamental part of the project of communication." Later she writes, "The general characteristics of law-trained readers in this and later chapters can only invite you to begin your study of readers. Don’t just accept the principles that follow.. . . Observe too the other law-trained readers you know. This way, as the years of legal practice go by, your writing will get better and better." Price also contends that legal writing teachers write about audience this way because they base their ideas on personal knowledge and they are insecure. However, legal writing teachers attend numerous conferences where we go to presentations on innovative teaching and discuss our ideas, we have listserves where we discuss our ideas, we read legal writing scholarship, and we even have friends outside of the legal writing profession. Similarly, while legal writing teachers might have been insecure in the early 90s, things have changed considerably over the last twenty years.
While most of the textbooks state that the usual audience for legal writing is judges and lawyers, almost all these textbooks teach about writing for other types of audiences, particularly client letters. Concerning the audience for client letters, Shapo points out that "the audience for letters is varied and diverse. . . . You must analyze your reader in detail."
Price criticizes legal writing texts for characterizing lawyers and judges as busy and impatient. How can one not characterize judges and lawyers as busy? There is a mountain of evidence supporting this; one can’t deny reality. (However, I don’t see anything in these texts that says that lawyers and judges are busier than other professionals, as Price charges.) In addition, Price has exaggerated the impatience critique. It is not so much that the texts are saying that lawyers and judges are impatient, rather they are saying that clarity is required to communicate with the reader. Judges and lawyers have a limited amount of time. It is the writer’s responsibility to communicate to the reader. Again, this is only stating reality.
Price declares that the second characteristic of the text’s monolithic audience is "aggressive scepticism." Price is right that the texts state that most audiences have this characteristic, but she misunderstands its details. This aggressive scepticism is not aimed at formal structures and the niceties of grammar, but at the substance of the arguments. Much of our legal system is an adversarial system so, of course, judges and lawyers look to gaps in analysis and distortions of reasoning. On the other hand, judges and lawyers do not consciously look at the formal aspects of legal writing. However, as stated in the previous paragraph, they do need clarity in order to understand what the writer has said. "Road maps" and small-scale paradigms help provide clarity.
Price also asserts that this aggressive scepticism applies to grammar errors. Most of us do not spend a lot of time in our classes on grammar, but with some students we have to work on grammar. It is a fact of life that many people think that those who make grammar or bluebooking mistakes are sloppy reasoners. To ignore that some readers will do this is to ignore the actual audience.
It is in her critique of the small-scale paradigm as rigid and formalistic that Price misses the mark the most. The legal writing textbooks regard the small-scale paradigm as part of the writing process, not as a rigid formula. For example, Edwards writes, "Legal writing is a process with distinct goals at each stage." These authors treat the small-scale paradigm as a set of principles, not a rigid formula. In addition, the texts acknowledge that there are instances when the writer should depart from the paradigm. Edwards writes, "First, master the basic substantive and organizational principles covered in this course. Soon you will know when and how you can depart from them." Similarly, Neumann discusses when writers can vary the paradigm, and all the texts have a section on the different types of legal arguments.
These texts treat the small-scale paradigm as part of the analytical process. Neumann observes, "Students learn legal reasoning and legal writing better when the two are taught together than when they are taught separately." Similarly, Edwards writes, "Your primary purpose in writing a working draft is to use the process as your own analytical tool."
Price criticizes the texts for embodying the process of legal analysis. While she is correct that they do this, she is wrong that it is bad. How better to present a legal argument clearly than to adopt an organization that reflects legal analysis? Legal organization should reflect the legal reasoning process. Law is not politics, legislative policy-making, or administrative policy-making.
As stated above, the purpose of Price’s critique is to argue that the legal texts suppress the voices of underrepresented groups. This is a postmodern/CLS critique. One of the central principles of this approach is that human behavior is malleable–minds are blank slates for society to write upon (Standard Social Science Model). However, this model of human behavior has been thoroughly debunked. As Dean Chen stated in 1995, "we stand on the brink of a century whose principle intellectual project may consist of overthrowing the Standard Social Science Model. . ." (See also Steven Pinker, The Blank Slateand Edwin Scott Fruehwald, Law and Human Behavior, Chapter 3). We are not socially-constructing our students in legal writing classes. While I do not agree that we should be teaching critical techniques of the CLS school to our students, I do agree that we need to develop reflective readers and that there are other aspects of law than the adversarial part.
I also challenge Price’s contention that the small-scale paradigm is not a proper method for helping the underrepresented. (Like most CLS critiques, Price fails to offer concrete alternatives.) Radical ideas can be presented in well-organized frames. Remember that much of the civil rights revolution used standard legal methods. The main purpose of the small-scale paradigm is to communicate clearly to the reader–to make writing understandable. Is it better to present legal arguments in a poorly organized form? How does this help the oppressed?
While legal writing requires legal structures, legal writing can also articulate the human voice. Many legal writing teachers stress the narrative; there are even yearly story-telling conferences. I stress in my teaching of persuasive writing that the writer is telling a story–the client’s story. Edwards observes that legal writing requires both the linear and narrative modes. She says that legal writing classes concentrate on the linear mode because students are more familiar with the narrative mode.
In sum, I strongly disagree with Price’s critique of the small-scale paradigm. Instead of viewing it as a means of oppression, I view it as a way to clearly communicate to readers, and this applies to those who are representing the poor and oppressed. Unlike Price who views herself as "some harried, red-pen-toting, grammar-loving soul," I view myself as someone who teaches legal analysis and how to communicate that legal analysis to a reader, regardless of the substance of that analysis. I suspect most of my legal writing colleagues agree.
Tepid student response to classroom experiment with iPads
A professor of journalism and writing describes a classroom experiment in loaning graduate students iPads for the semester. From the Chronicle of Higher Ed.
I had high hopes when I handed out iPads to students in my graduate seminar this semester. I wanted to explore the possibilities of tablet computing and see firsthand how tablets might be used in higher education. I also wanted students to see for themselves where the iPad might fit into their lives and their careers – and into the future of media and communication.
For the most part, students ended the semester with a collective shrug. They simply weren’t all that impressed with tablet computing as it now exists.
That’s surprised me, though I still consider the semester a success. I learned several things about teaching, about the iPad and about students that will help me – and, I hope, others – in the future.
. . . .
The give-back factor
As the semester progressed, some students used their iPads less and less, ignoring them for a week or two at a time. One explanation for that is that students had no sense of ownership in their tablets. They knew they had to return them at the end of the semester. The Duke students that Davidson wrote about were able to keep the iPod Touches they received. Other universities have done the same with the iPad. That provided an incentive to learn the technology and find apps that would serve them in the long term.
My students said they saw little or no return on investing large amounts of time to personalize the iPad’s settings, organize the many apps, transfer their address books or even learn new apps that might make the iPad more functional. Why become attached to something they had to give back? students said.
Convenience and function
For most students, the phone is still more convenient than an iPad. They not only rely heavily on text messaging but on text messaging with their phones. The iPad has several apps for texting, but most require a new account and a new number. Phones slip easily into pockets or small bags, too, something you can’t do with an iPad.
Like some students at other universities, those in my class said laptops were far more functional, especially for writing and researching. Besides, their phones perform nearly the same functions as the iPad but are far easier to carry. The iPad became just one more piece of technology they didn’t want to lug around.
Two students had hopes of using their tablets to temporarily replace laptops that died. They soon gave up, growing frustrated by the iPad’s limitations (lack of a mouse, lack of a USB port, and a virtual keyboard that favors two-finger typing).
Some professional writers have had success using the iPad, even as a primary writing tool. They use detached keyboards, though, something my students didn’t have. They also found it much lighter and easier to travel with an iPad than a laptop. That requires a fair amount of setup, though. Research files have to be transferred to online storage. Writing programs need to be tested. Those are minor issues, but they do require time. When my students traveled, they took their laptops.
As one of my students said, “The litmus test is that it has to simplify rather than complicate life.”
The iPad failed in that regard.
Where the iPad excelled
Students said the two areas where the iPad excelled were reading and viewing. No surprise there.
Continue reading here.
A New (Old) Law Dictionary Is In the Game
In 1859 John Bouvier wrote and published the first law dictionary for American lawyers. Black’s Law Dictionary did not appear until 1891. Bouvier was the the dictionary of choice for Abraham Lincoln, Daniel Webster, and Oliver Wendell Holmes, Jr. as well as a number of more recent lawyers. Over the years, there have been a few revised editions of Bouvier, but no thorough overhaul until now.
General editor, Professor Stephen Sheppard (Arkansas) told me that he spent two years planning the revision and twelve years writing it. He adopted the older style of dictionaries, which offers long, contextual definitions. However, the writing style is modern, plain English. The final product is well worth spending some time exploring.
Wolters Kluwer (Aspen) has just published the Compact Edition (1230+ pages). In the spring, it will publish both the desk edition, which has many annotations, and the electronic edition.
January 9, 2012
2011 Law School Survey of Student Engagement finds most are happy with decision to attend law school but want more skills-related training
The annual LSSSE report on student engagement is out now and available here. Among the findings for 2011, more than 80% of the students surveyed said they are happy with their decision to attend law school and would re-enroll if given the chance. Though students who incurred the greatest amount of debt to attend law school were less sanguine about their decision. Almost half the students surveyed, however, thought their schools didn't do enough to provide them with practical legal skills.
More than 33,000 students at 95 law schools in the U.S. and Canada responded to the LSSSE survey. The average institutional response rate was 52%. Some of the key findings include:
• The vast majority of students rated their overall law school
experience favorably; 83% reported that their experience in
law school was good or excellent.
• Eighty percent of students said that they definitely or
probably would attend the same law school if they could
start over again.
• Twenty-three percent of law students who expected to accrue
more than $80,000 of law school-related debt reported that
they would not or probably would not attend the same law
school if given the opportunity to start over.
• Though the majority of JD students who have
incurred higher amounts of law school-related debt were
satisfied with their overall law school experience, more of
these students (18% of students who expect to graduate
with law school-related debt greater than $80,000) rated
their experience as fair or poor. In comparison, only 14%
of students with an expected law school-related debt of less
than $40,000 rated their experience unfavorably.
• Students with high levels of law school-related debt more
often used and were satisfied with career support at their
law school. Of students who expected to owe more than
$80,000 in law school-related debt after graduating, 64%
used and were satisfied with job search support, and
84% used and were satisfied with career counseling at
• Forty percent of law students felt that their legal education
had so far contributed only some or very little to their
acquisition of job- or work-related knowledge and skills.
You can read the full report here.
Legal sector loses 1,800 jobs in December
From AmLaw Daily:
The legal industry ended 2011 on a sour note, losing 1,800 jobs in December, according to the Bureau of Labor Statistics' preliminary employment report released Friday.
The December losses obliterated the sector's modest gains of the previous two months: 400 jobs in October and another 400 in November, according to the seasonally adjusted figures included in the latest BLS report. (The BLS initially reported an uptick of only 100 legal jobs in November.) Since December 2010, the legal sector has cut about 2,700 jobs, the BLS report says.
The losses also put the legal industry at odds with the broader economy, which, according to the BLS report, added 200,000 jobs in December to bring the nation's unemployment rate to a nearly three-year low of 8.6 percent. All told, the BLS reports, the economy gained 1.6 million jobs in 2011 after adding 940,000 in 2010.