Saturday, July 7, 2012
When we teach our students to write in plain English, are we training them to write dull, boring prose. In the June issue of the Michigan Bar Journal, Professor Mark Cooney asks
And is plain language really an ugly
duckling? Can a lawyer, judge, or scholar
write with flourish and flair using “plain
It isn’t plain
at all, if by that you mean dull and drab. It’s
refreshing, persuasive, interesting, and sometimes
colorful. It has strength and, yes, beauty
In the article, he offers a number of examples of legal prose that is vibrant and in plain English.
Friday, July 6, 2012
Legal "skills" related scholarship: "Training Tomorrow's Lawyers: What Empirical Research Can Tell Us About the Effect of Law School Pedagogy on Law Student Learning Styles"
By Professor Eric A. DeGroff (Regent) and available at 36 S. Ill. U. L.J. 251 (2012) and SSRN here. From the abstract:
Generations X and Y, which together account for a large majority of today's law school classes, are unlike previous generations in their approach to learning. Legal scholars have begun to note the disparity between the learning styles and thought processes of today's students and many of their professors, and there is a growing call for a more experiential pedagogy in the law school curriculum and classroom. The legal academy, however, has little empirical data to evaluate what kind of difference, if any, a more experiential approach to teaching might make.
The research described in this article was designed to help bridge that gap by adding to the modest, but growing, body of data linking pedagogical approaches to learning outcomes. Specifically, the article presents the results of a longitudinal assessment of learning styles over the course of the first year of law school. Findings from this research demonstrate a significant shift in learning styles over the course of the first year of study, and -- while less conclusive -- also suggest that an experiential approach in the classroom may impact student learning in a positive way.
Here is a good lesson on the importance of thesis paragraphs. Both Fox and CNN immediately reported that the Court had overturned the Health Care Act. Why? Here’s Fox’s explanation:
We gave our viewers the news as it happened. When Justice Roberts said, and we read, that the mandate was not valid under the Commerce clause, we reported it. Bill Hemmer even added, be patient as we work through this. Then when we heard and read, that the mandate could be upheld under the government’s power to tax, we reported that as well—all within two minutes.
By contrast, one other cable network was unable to get their Supreme Court reporter to the camera, and said as much. Another said it was a big setback for the President. Fox reported the facts, as they came in.
With this statement, Fox was engaging in damage control.
I would shift the blame to the Chief Justice. In his statement from the bench, he worked through his analysis from beginning to end, with the critical issue—taxes—at the end. The Court’s decision and its rationale were at the end of his statement. Suppose Justice Roberts had begun his statement with a verbal thesis paragraph in which he stated the decision and the reason for the decision. Fox and CNN would not have been misled.
When I once again emphasize to my students the value of the thesis paragraph, I will use this episode to illustrate my point.
Thursday, July 5, 2012
With most law students graduating with educational debt loads approaching $100k yet facing, on average, only a 55% chance of finding full-time employment working in a JD required job nine months after graduation, law school is turning out to be a bum deal for too many grads. But are some students faring worse than others when it comes to expected debt load and job prospects after graduating? Professor Deborah Jones Merritt over at Inside the Law School Scam has taken a look at the numbers and concluded "yes" with respect to minority students. Here's what she found:
The evidence I've found shows: (1) Black and Hispanic law graduates bear more debt than White graduates, although Asian graduates carry less. (2) Graduates of all three minority groups are less likely to pass the bar exam than White graduates. (3) Some law schools, especially those with poor outcomes, play upon “access” and “anti-elitism” themes to attract minority tuition dollars to campus. These are warning signs that minority law graduates, as a group, are suffering even more than White ones.
. . . .
Race and Debt: NALP and the American Bar Foundation have been conducting a national study of lawyers admitted to the bar in 2000. That study, After the JD, provides the most comprehensive evidence we have about the careers of new attorneys. Only 4.5% of the Black lawyers in that study graduated from law school debt-free; for Hispanic lawyers, the figure was 6.0%. White lawyers were three times more likely than their Black and Hispanic classmates to graduate without law school loans: 17.3% of them did. Asian students were the most successful at avoiding loans, with 19.9% graduating debt-free. (See Table 10.1 on p. 81 for all debt figures reported here.)
Among students who borrowed, Blacks and Hispanics shouldered slightly more debt than Whites at graduation. Median debt for these groups (excluding those without loans) was $73,000 for Hispanics; $72,000 for Blacks; and $70,000 for Whites. Asian students had the lowest debt, with a median of $60,000. Remember that all of these figures are for students who graduated in 2000; the numbers would be considerably higher today, after the last decade's ramp-up in tuition.
These racial differences in debt load persisted for years after graduation. At the seven-year mark, almost half of Asian lawyers (46.8%) had paid off their loans; more than a third (37.0%) of White graduates were similarly debt free. But far fewer Black and Hispanic lawyers shared that financial fortune: Just 17.0% and 28.9%, respectively, were debt-free. Black and Hispanic attorneys were also more likely to struggle with supersized debts: 15.1% of Black attorneys—more than one in seven—still owed more than $100,000 seven years after law school graduation; 10.5% of Hispanic graduates fell in the same category. For Asians and Whites, the percentages carrying these large debts were just 6.9 and 7.7.
But all of these graduates had at least passed the bar.
Bar Passage: California, the state that administers the most bar exams, reports pass rates by race. For July 2011, the pass rates for first-time test-takers were:
- White test-takers: 75.4%
- Asian test-takers: 67.3%
- Hispanic test-takers: 55.3%
- Black test-takers: 45.7%
- Other minority test-takers: 59.0%
California allows graduates of unaccredited law schools, as well as apprentices who "read the law," to take the bar exam, but those differences do not account for the racial disparities. The same California report breaks down bar results by educational preparation--with the same racial patterns in each group.
New York, the nation's second-largest administrator of bar exams, reports similar racial disparities in bar passage. A study reviewing New York's July 2005 exam reported the following pass rates for first-time takers:
- Caucasian/White test-takers: 86.8%
- Asian/Pacific Islander test-takers: 80.1%
- Hispanic/Latino test-takers: 69.6%
- Black/African American test-takers: 54.0%
- [No “Other” group reported]
Candidates who fail the bar can retake the test, and many pass on subsequent attempts. But both the California and New York data show that race differences remain even after retakes. A national study from the 1990s reaches the same conclusion.
How many of these minority graduates, who will never practice law, owe law school debt? How high is that debt? I have not been able to find statistics on that—the debt figures reported above cover only graduates who passed a bar exam. But individual law schools know how many of their graduates fail the bar and how much federal debt they owe.
You can continue reading Professor Merritt's analysis here.
Many of us haven’t heard that word since our Legal Ethics course in law school. But in Texas at least, the offense of barratry is gaining more attention. Texas has amended its statutes to permit clients to void all fee agreements procured as the result of barratry. It has also created new causes of action and civil liability for prohibited barratry.
So what exactly is barratry? We can explain with a recent example. From the website of the Disciplinary Board of the Supreme Court of Pennsylvania:
A Texas attorney has surrendered his law license in a plea bargain arising out of criminal charges for the crime of barratry. Benito Garza of Corpus Christi also agreed to pay a fine of $6,000 and serve ten years of probation under a tough new Texas statute that provides criminal and civil penalties for barratry. According to documents filed in the case, Garza and his case runner Timothy "Sugar Bear" Trevino unlawfully solicited legal employment from the family members of a man who was killed in an auto accident, by calling on the man’s mother to pitch their legal services at 1:00 am the night he died.
See also Paul Neuman visiting a funeral home in “The Verdict” (at 2:50 minutes in this movie clip).
You can learn more about barratry, as well as champerty and maintenance, here.
Design, Teach and Manage: Ensuring Educational Integrity in Field Placement Courses by Liz Ryan Cole and Nancy Maurer.
Abstract: Field placements are becoming increasingly important as law schools respond to demands for educational reform along with demands from students, practitioners, clients and other constituents to graduate “practice ready” lawyers who understand the values of the profession. At the same time, decreasing enrollments, ballooning law student debt, and a weak economy are creating internal pressures to cut the costs of providing legal education. As law schools react to competing demands to increase experiential learning while cutting costs, the ABA has relaxed accreditation standards governing study outside of the classroom. The result is that those who design, teach and manage field placement courses are expected to do more with less. In many instances, full time field placement faculty are being replaced with instructors or administrators who have limited teaching experience and no job security. The lack of faculty status and job security makes it more difficult for those overseeing field placement experiences to participate completely in discussions of the proper role of these courses in legal education. We argue that it is precisely during these challenging times that law schools most need experienced faculty to be in charge of field placement programs, not only to design and teach these courses, but also to be part of faculty and administration discussion of law school mission, purpose, budget and curriculum. We describe how a faculty-designed and faculty-taught field placement course can allow law schools to offer robust experiential learning opportunities at reasonable cost.
Wednesday, July 4, 2012
The National Conference of State Legislatures has designed a website explaining why working for state legislatures is a fulfilling career. What do you do when you enter the legislative service?
Serve Your Community
Shape Public Policy
Advise Legislative Leaders
Advocate for Causes
Ensure Government Accountability
Use and Create Innovative Technology Platforms
The website also includes a listing of available jobs.
Tuesday, July 3, 2012
We had previously followed the blog of a recent law grad who, failing to find a job after graduation, decided to hang a shingle from his apartment bedroom. But after three months during which his costs exceeded revenue (though he did have some significant unpaid receivables), he decided to call it quits when he landed a paying gig with the local DA's office. Thus, our plan to follow a new solo in order to be able to pass along the lessons and wisdom he gained along the way unfortunately came to an unexpected and abrupt end.
So for all of our readers still interested in gaining a little insight about what to do, and what to avoid, when going solo, you should check out this two part series from the Lawyerist blog called Lessons Learned as a New Solo (Part 1 of 2). It's written by a former BigLaw associate who recently took the plunge by going solo and is now offering some advice after his first few months into it.
Here are his main points from Part 1:
Go With What You Know
First, decide on a practice area and focus only on that area. It’s hard to appeal to clients if you don’t know who your clients are, and it’s hard (read: impossible) to get lawyer referrals if you take any case that walks through the door. I once had a guy hand me a business card that read “Specializing in bankruptcy, criminal, family, corporate, environmental and personal injury law.” I doubt he gets many referrals, and I know he sure as heck won’t get a referral from me.
. . . .
Every Dollar You Spend is a Dollar You Don’t Have
Keep overhead low by spending only on the absolute necessities in the beginning, especially for people who only have 3-6 months of living expenses saved up. I designed my own website to save money. Some “law practice experts” snubbed their noses at this. ”Why not pay a professional and spend your time “networking” and practicing law?” they asked. “You could be billing out at $250 per hour.” Yeah, well what’s $250 multiplied by 0 hours? Exactly.
In the beginning, if you can do it yourself and do it well, don’t pay someone else to do it. All you have is time. I spent a week designing my website. I probably slept a total of 12 hours in those seven days, but the end result was $5,000 saved and the first real sense that this solo gig was actually going to work.
. . . .
Set Weekly Goals
This was probably the most important aspect of my initial success. Having a goal to work towards and successfully achieving that goal is very rewarding. I did not do this in the very beginning and soon found great success by incorporating this strategy into my life.
. . . .
Stay the Course
The first month of solo practice can be a very depressing time. You will have no clients, and the phone will not ring a single time. Stay the course. Keep meeting your weekly goals. Keep building meaningful relationships with other lawyers – in other practice areas and your own. Tell everyone what you are doing. Clients will come. Once you have your first client, the rest will follow. After three or four months, you will likely find yourself being able to pay your monthly business expenses. If you’re lucky, you may even be able to pay yourself a small wage. Even if it’s a tenth of what you were earning at a large law firm, that first month where you can actually pay yourself is unforgettable.
Click here to read the rest of the post.
This post from the ABA Journal discusses the recent (2011) data released by the Bureau of Labor Statistics that list the top 15 paying occupations.
“Being a lawyer is good-paying work, if you can get it….
Lawyers were No. 5 on the list. The article notes the job requires advanced education and says the profession “isn’t the easiest industry to break into.”
Here are the top five:
1) Doctors and surgeons, with an average salary ranging from $168,650 to $234,950.
2) Orthodontists and dentists, with an average salary ranging from $161,750 to $204,670.
3) Chief executive officers, with an average salary of $176,550.
4) Petroleum engineers, with an average salary of $138,980.
5) Lawyers, with an average salary of $130,490.”
These will be interesting trends to watch in the coming years.
Monday, July 2, 2012
From a podcast sponsored by WestlawNext and the ABA Journal blog that features two very experienced and successful plaintiffs' attorneys. The podcast can be downloaded here. Below is an excerpt of the transcript.
This ABA Journal podcast is brought to you by WestlawNext, the most advanced technology combined with market-leading content and West's history of trusted editorial excellence. Helping legal professionals save time is what they've been doing for over 125 years.
Stephanie Francis Ward: If you do plaintiff work, sometime in your life that million-dollar case will come in your door. But how do you know it’s the one?
I’m Stephanie Francis Ward and that’s what we’re discussing today at the ABA Journal podcast. Joining me are Paul Kiesel, a partner of the Los Angeles plaintiff firm Kiesel, Boucher & Larson, and Kerry Wisser, a Partner with the plaintiff firm Weinstein & Wisser in West Hartford, Conn.
Gentlemen, the first question I have is for both of you. What is the best way to determine if a defendant has any assets?
Paul Kiesel: Well, Stephanie. It’s Paul Kiesel here. I’ll say this. When I’m looking at taking a case, and almost all the time, it’s a contingency fee case, meaning if there’s not a recovery at the end of the day there’s not gonna be a recovery for the client or a fee to the firm.
I am rarely looking at the assets of a company or an individual to determine whether or not I’m gonna take that case, because 99 percent of the time you're hoping that there’s going to be insurance coverage available. If you’re looking at someone’s individual assets there is great risk in taking a contingency fee case or assets are what you’re looking for compensation. What are your thoughts, Kerry?
Kerry Wisser: Yeah. I do more commercial work, and from the commercial side there are often circumstances in which you’re not dealing with insurance. So under those circumstances you do have to be very cognizant about the collectability of the case. I often advise clients that a judgment’s only a piece of paper. If it’s uncollectable, it’s uncollectable. And if you have a client or if you have a defendant that’s teetering, they can file bankruptcy.
So under those circumstances, for those folks that use Lexis there is the opportunity to offer products that can identify commercial real estate and residential real estate ownership. They can identify ownership of vehicles. They can identify prior addresses. They can give a lien history, a tax payment history. Some of that can give you some basic information as to whether or not you’re dealing with what I deem to be a deadbeat or someone that is viable or a company that’s viable.
At least in my state you also have the opportunity to start an action before a lawsuit. It’s known as an Application for a Prejudgment Remedy. And if you can establish probable cause that you can prevail–and that’s a very limited standard–you then can get a disclosure of assets. And that’s a great tool to utilize.
You establish before the court probable cause that a judgment will be rendered for a certain amount of money, whether it’s a liquidated claim or an unliquidated claim, and commensurate with that the court will give you this disclosure of assets. And that requires the defendant to provide, either in writing or through a deposition, information relevant to all the assets they have up to the amount of the prejudgment remedy as the court would grant. So that’s another tool.
. . . .
Stephanie Francis Ward: A question for both of you. In terms of evaluating the defendant and his or her ability to pay, are there some red flags that plaintiff lawyers commonly miss?
Kerry Wisser: Well, actually, I just wanted to add a bit to what Paul was just indicating. Connecticut has a $20,000… $20,000/$40,000. So it’s not much great than the 15/30 that California offers. And I find that most of the surrounding states in the northeast are very similar in terms of they are small thresholds.
And the back of the envelope’s not only the car they’re driving but maybe even the address that they live in. That’s very helpful also. But what is unique again to Connecticut versus California is just recently, in the past year or two, Connecticut did pass a law that requires an insurance company to disclose its coverages upon a written request, and they have 30 days to do so or they could be subject to a bad faith claim.
And given the fact that California seems to be the most progressive state in our union I’m surprised that they don’t have a similar law, because it would appear to me that why do you want to have to start a lawsuit and burden the judicial system when in fact a simple letter and a simple response would be there?
When you have the circumstances of the coverage as it relates to the individual that caused the accident–we call that the tortfeasor–you also want to ask your own client in regard to their what’s known as underinsured motorist coverage. Because if the individual that causes the incident has $20,000 in coverage but your client has $300,000 in coverage, again referencing Connecticut law you can collect the $20,000 against the individual that caused the accident, exhausting that policy, and then bring a lawsuit against your own client’s insurance company for the remaining value of their coverage, assuming that the injuries as substantial enough.
And, again, Connecticut offers the ability to enhance that even further. You can buy something called conversion coverage, so you can collect all of what the tortfeasor has without a subtraction against the $300,000 policy, and there’s double conversion coverage so that there’s the opportunity not only to look at the individual that caused the accident but the coverage from your own client themselves.
Paul Kiesel: And you call California progressive. I ought to be living in Connecticut and working in Connecticut! Stephanie, the red flag I’m looking for at the outset of one of these cases is–and you raised this is some of the earlier questions that you posed–looking at your client and what the expectations are of the client, the initial meeting and determining both the injuries that your client has and what your client’s expectations are going to be.
Really at the outset your biggest red flag, the thing you have to be most cautious of, is your initial meeting with the client, what your client’s expectations are, and managing them, I think, are one of the larger challenges that a plaintiff lawyer faces today.
Kerry Wisser: And I absolutely agree with that, because I think that Paul and I can both tell you that over the years there have been folks that have come into our respective offices, advise of the nature of the accident, the mechanics of the accident, and at least giving you a brief outline of the nature of their injuries, and then they have unrealistic expectations. The person says, “Well, my next-door neighbor had an injury like this and collected a million dollars.”
And I said, “Well, then you ought to find the lawyer who represented your next-door neighbor because that’s you ought to go see.” When the case clearly… unless something enhances in terms of the injuries or something’s found that has not yet been found by the physicians, the nature of the injury could be fifty to hundred and they’re talking to you about a million dollars.
Paul Kiesel: And what I want to caution your listeners about is this: do not feel compelled when the client pushes you to ever come up with a number that somehow approximates the value of your client’s claim. If a client comes to you and says, “I’ve been to a lawyer, who’s already told me my case is worth x,” you need to explain very carefully that that is likely not a well-founded number that’s being put out there.
And, as Kerry just said, if the client says, “An attorney told me my case was worth x,” then you have to very politely tell the client to go hire out there, because you cannot be put in the position, regardless of how badly you want the case, to have the client control the ultimate outcome at the early stage of the litigation.
A few days ago, one of my co-bloggers discussed a study, which concluded a law school's U.S. News rank was the most important reason a student chooses a law school. It stated, "Thirty-two percent of the 645 responses to the survey said that a law school’s ranking was most important when determining which school to attend." I find this to be very disappointing. As I demonstrated in a post a couple of weeks ago, U.S. News has absolutely no value in helping students select a law school. There have also been many other studies that strongly criticized U.S. News, particularly one by Brian Leiter. To give a couple of highlights from my previous post: employment rates, which constitue 18% of the total score, are based on full-time and part-time jobs and legal and nonlegal jobs. Since nonlegal jobs are included in the rates, 18% of the total score is meaningless. Similarly, the assessment score by lawyers/judges constitutes 15% of the score. First, only about 12% of those surveyed responded, which calls this category into question. More importantly, I question how these legal professionals can have knowledge of the approximately 200 law schools in this country. In sum, most of the U.S. News criteria are wortheless or questionable, making the rankings wortheless.
It is time to just say no to the U.S. News Law School Rankings. This is most important for law students who make their law school selection in large part based on U.S. News. They should ignore U.S. News completely. I also urge the editors at Law Schooled to tell their law student readers the truth about the value of U.S. News.
It is also time for law schools to just say no to U.S. News. They should stop spending scarce resources on things that only raise their rank in U.S. News. They should also not participate in the rating process; they should stop giving U.S. News the information that is necessary for the rankings. Law professors should also stop returning the rating forms, both for the general and speciality rankings. Finally, judges and attorneys should place their rating forms in the trash.
We can break the vicious cycle of the U.S. News Rankings.
From the news release:
The Texas Wesleyan University Board of Trustees has approved a letter of intent for Texas Wesleyan University and Texas A&M University to enter into a strategic partnership that would provide premier legal education in the Dallas-Fort Worth metroplex for decades to come. Under the proposed multi-million dollar agreement, the school would be known as the Texas A&M School of Law at Texas Wesleyan University.
Some highlights from the release:
Under the agreement, Texas A&M would acquire ownership and operational control of the law school as a going concern and all faculty and staff of the law school would be employees of Texas A&M. Texas Wesleyan University would retain ownership and control of the law school building and four city blocks of land at the downtown Fort Worth campus and would lease the facilities to Texas A&M.
“The synergy of this strategic partnership is extraordinary,” said Kenneth H. Jones, Jr., chairman of Texas Wesleyan’s Board of Trustees. “Texas A&M stands to benefit from an already established, ABA-accredited law school. Fort Worth and the metroplex would lay claim to an institution poised for first-tier status. And Texas Wesleyan would gain new academic programs that drive our vision of preparing motivated students for graduate school.”
Among the future offerings would be a joint law school JD/Texas Wesleyan MBA program and also a Texas Wesleyan undergraduate/law school 3+3 program. These new programs exemplify how the partnership would allow for the development of collaborative academic programming that will have a lasting impact on students.
The agreement will be executed on or before June 1, 2013.
This post from U.S. News gives six reasons why graduate school pays off in the long run.
“[W]ith a national jobs forecast that remains weak and the cost of higher education continuing to grow faster than the rate of inflation, why would someone want to consider the academic, personal, and financial rigors of graduate school? Here are a few reasons why grad school—today and in the future—makes a difference in your career and your earning potential: “
- Personal growth
- Greater employment opportunities
- Greater career advancement
- Financial reward
- Sense of accomplishment
- Greater recognition and credibility.
I’ll bet U.S. News will continue to rank the graduate schools for us too!
Hat tip Law Student Ally (@LawStudentAlly)
Sunday, July 1, 2012
New legal "skills" scholarship: "Re-Vision Quest: A Law School Guide to Designing Experiential Courses Involving Real Lawyering"
By Professors Deborah A. Maranville (U. Washington), Mary A. Lynch (Albany), Susan L. Kay (Vanderbilt), Phyllis Goldfarb (George Washington) and Russell Engler (New England). It is available at 56 N.Y.L.S. L. Rev. 517 (2012) and from SSRN here. From the abstract:
Legal educators have long viewed experiential courses involving real lawyering as a world divided neatly in two: externship placements and in-house clinics. This article suggests that despite the decades-old vintage of this categorization scheme, it is inadequate for the curriculum reform era that lies ahead. Increasingly, the content of these categories has expanded, the always-permeable boundary between them has blurred, and hybrids and varieties have sprouted that defy easy categorization. Thus, the labels conceal both similarities and differences. Our overarching purpose in this article is to identify and frame the wide array of options for structuring an educational experience in which law students are performing as professionals engaged in service to people involved in legal matters. We suggest that legal educators expand their thinking about curricular options for experiential learning and develop a broader conceptual framework for articulating these options. In this article, we offer such a framework, representing our effort to highlight more comprehensively the extensive range of options that law schools can consider in designing or redesigning curricular clinical programs. We also propose a decision-making process for using that framework and apply it to three examples. We hope the article will serve as a decision-making guide for the law school faculty and administrators who will be shaping the future of clinical legal education and legal education in general.
In a survey of pre-law students enrolled in the Kaplan LSAT prep course, rankings turned out to be the most important factor in choosing a law school. From the National Jurist:
Thirty-two percent of the 645 responses to the survey said that a law school’s ranking was most important when determining which school to attend. Only 8 percent said that a law school’s job-placement statistics as most important.
The responses, elicited from students in Kaplan’s LSAT prep course, even placed the importance of job prospects below other factors: 22 percent said geographic location was the most important, 20 percent said academic programming, 13 percent said affordability/tuition. In the 2010 survey, students ranked the factors in the same order.
The survey also highlighted the discrepancy between students’ expectations of jobs and the recent reality of the job market. Thirty eight percent of those surveyed said they hoped to work in a large law firm. Recent ABA reports show that roughly 10 percent of the class of 2011 landed jobs in firms with more than 100 attorneys.
In so many areas of life, people make decisions by relying on questionable information.