January 17, 2012
Law School Transparency Report
Law School Transparency has just released its Winter 2012 Transparency Index Report.
The Executive Summary states:
"Having had their long-standing practice of withholding basic consumer information called into question, law schools have responded with new attempts at disclosure in advance of the ABA’s new requirements. Adequate disclosure should be easy to achieve; law schools have possessed ample information, in an easy publishable format, for many months. But as the findings of this report show, the vast majority of U.S. law schools are still hiding critical information from their applicants. . . . The Winter 2012 Index reveals a continued pattern of consumer-disoriented activity."
"Taken together, these and other findings illustrate how law schools have been slow to react to calls for disclosure, with some schools conjuring ways to repackage employment data to maintain their images. Our findings play into a larger dialogue about law schools and their continued secrecy against a backdrop of stories about admissions data fraud, class action lawsuits, and ever-rising education costs. These findings raise a red flag as to whether schools are capable of making needed changes to the current, unsustainable law school model without being compelled to through government oversight or other external forces. "
While I agree that prospective law students are smart enough and mature enough to make their own decisions, they need full and accurate information upon which to make those decisions. It is time that law schools give them that information.
January 16, 2012
New ABA project devoted to helping teach law students practical problem solving skills
It's called LEAPS (Legal Education, ADR, and Problem-Solving Project) and is a project of the ABA Section on Dispute Resolution. LEAPS' purpose is to increase instruction in practical problem solving skills in legal education "by integrating it into the curriculum in various ways."
The group has a website and plans shortly to initiate what it calls a “community organizing” effort to encourage law faculty to talk with colleagues at their schools about incorporating "Practical Problem-Solving" (PPS) skills into the curriculum. What's PPS you ask? From the LEAPS website:
Practical Problem-Solving ("PPS") involves the range of skills that lawyers use regularly in practice in addition to legal research, writing, and analysis. These skills include fact gathering, client interviewing and counseling, negotiation, representation in ADR processes, and drafting legal documents, among others. Below is a broader list of practical problem-solving skills and issues.
It is important for students to be exposed to PPS in many courses to emphasize the importance of these skills and to increase students’ opportunity to learn more about lawyering.
Many faculty already incorporate some PPS in their courses. This can be quite subtle, for example, asking students to discuss cases in a casebook from the perspective of a lawyer advising a client or negotiating with the other side. Faculty sometimes inject PPS into class discussion when analyzing hypothetical problems and possible solutions. Sometimes faculty assign students to do simulations outside of class dealing with particular legal issues. These are just a few ways that faculty can increase attention to practical application of legal doctrine.
Civil Procedure by Catherine Ross Dunham & Don C. Peters and the Skills & Values Series
Civil Procedure by Catherine Ross Dunham & Don C. Peters is one of the books in the LexisNexis Skills & Values Series, which is mainly intended to supplement traditional casebooks with practical exercises. The book is divided into chapters covering the major topics of civil procedure from personal jurisdiction to joinder. Each chapter consists of a succinct discussion of that chapter’s topic and a series of problem-solving and/or pleading-drafting exercises on that topic. There are several types of problems, and the problems require students to assume different roles in the litigation. There are also on-line materials to supplement the book, including podcasts.
This book can help alleviate some of the criticisms that have been made about legal education. A contracts professor does not have to change her casebook in order to add a skills element to the course; she can just add this book to the course. This book would also be better for students to use as a course supplement than the traditional supplements.
As mentioned above, this book is one of the recent Skills & Values Series. Other books in the series are on contracts, federal income taxation, legal negotiation, discovery practice, evidence, and trusts and estates. Other subjects are coming soon. You can obtain more info here.
January 15, 2012
Law faculties struggle to find the right curricular balance between legal theory and practical skills
An article from the National Law Journal called What is law school for anyway? reporting on the recently concluded AALS annual conference in D.C. An excerpt:
. . . there remains a gap between the magnitude of change advocated by some within the profession and the modest innovations law schools are pursuing [to respond to the changing legal job market]. Those innovations include a wider array of clinics, harnessing technology in simulations and student projects, and teaching transactional lawyering skills.
"I think they are rearranging the deck chairs on the Titanic," said Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership and former general counsel of the Association of Corporate Counsel. "The discussion seems to be, 'Let's add a Thursday evening extra-credit course on the legal profession that meets for a couple of hours.' That's just tweaking around the edges."
Instead, Hackett suggested a re-engineering of law curricula to include an initial phase of core courses followed by a year of executive education-style classes covering topics including business skills, legal technology and behavioral management. The final phase would involve clinics or externships in law firms, legal departments, government agencies or nonprofit organizations. These could replace the traditional law firm summer associateships and would be more substantive, she said.
Missing in the conversation was any focus on what skills corporate clients actually want in their lawyers, Hackett said, such as the ability to solve problems and understand financial statements. "I truly think there are a significant number of people in legal education who think that what a client wants is irrelevant," she said. "They just want to teach the law."
Others warned that framing the discussion solely in terms of what large law firms and corporate clients want ignores that the vast majority of law school graduates don't work in so-called Big Law, but rather in small firms, solo practice, government or nonprofits — or even as nonlawyers. Identifying exactly what skills and knowledge students should take away from law school is more complicated than critics suggest, said University of Richmond School of Law Dean Wendy Perdue and Northeastern University School of Law Dean Emily Spieler.
Not only that, but eschewing traditional law and interdisciplinary courses in favor of trendy practical skills and legal-profession classes could undermine the larger mission, said Thomas Harvey, a 2009 graduate of Saint Louis University School of Law. Harvey and several classmates founded the nonprofit legal aid provider ArchCity Defenders shortly after graduating — in part, because they were inspired by a course in critical race theory.
"Why is the failure of high-priced law firms to adequately train their associates the failure of law schools?" Harvey said. "I think law school works because it's a broad, rather than a narrow, experience. I fear for a day when that is eliminated from the curriculum in favor of an externship."
Peter Kalis, chairman and global managing partner of K&L Gates, said he considers the criticism leveled against law schools misplaced. Law schools' failure lies not in their inability to teach practical skills, but rather in their diminishing ability to produce lawyers "able to speak the language of the law with confidence," he said.
"My viewpoint is not all that representative of managing partners, I'll admit, but I believe law schools should concentrate on the education of law students from the perspective of acculturating them in the rule of law," Kalis said. "Law students should spend that time being immersed in and becoming familiar with common law subjects."
The Association of American Law Schools attendees largely agreed that, in the future, most law schools will combine traditional bread-and-butter law curricula with courses, externships and clinics geared toward building real-world skills and knowledge about the legal profession. "It's OK that some traditional faculty members want to keep doing what they do, as long as other people are out there experimenting," Carle said.FINDING A BALANCE
Finding that balance is something schools are only beginning to explore. "Certainly, this issue has gotten a lot of attention within the academy," said David Wilkins, director of the Program on the Legal Profession at Harvard Law School. "Whether law schools are willing to actually change is a much more difficult issue. There is a lot of dissatisfaction with law school, but not a lot of strong ideas about how they should change."
Despite the talk, responding to changes within the profession does not rank as high with law faculties as their scholarly research, said Gillian Hadfield, a professor at the University of Southern California Gould School of Law. Morgan agreed: "Real, substantive change is still in the very early stages."
Indeed, most law schools are taking baby steps with pilot programs and new courses that tend to serve relatively small numbers of students and require more resources than traditional lecture courses. Washington and Lee University School of Law is a notable exception. It did away with its traditional third-year curriculum in 2009 in favor of a year of hands-on instruction including clinics, externships and simulation courses.
As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloomington who studies the profession.
"There's no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven't affected hiring patterns," Henderson said. "It's still all sorted out with credentials. It's based on the brand of the law school."
Wilkins concurred that achieving sweeping reform would be difficult until legal employers create incentives by hiring students from these innovative programs. "There's a lot of pious rhetoric coming out of law schools and the profession about what people want," he said. "They say they want this or that, but who do they ultimately hire? The kid on the law review."
He urged practitioners to engage with administrators at their alma maters and actively support curriculum reform. Carle noted that most law schools have advisory committees that include practitioners; those panels should spearhead conversations about how to better connect the academy with the legal profession, he said. "The solution has to be two hands reaching across to touch each other," Henderson said. "The law schools have to do this, but there also has to be an open-minded employer on the other end."
Tips for making objections during depositions
From the always helpful and informative Lawyerist blog:
You’re taking your first (or tenth) deposition. Make sure you are ready to handle objections. And make sure you know which objections are proper and which are improper. Once you are armed with that information, you can keep the deposition proceeding smoothly.
. . . .
Many lawyers have not done their homework and make deposition objections that are improper and interrupt the flow of information. And there are other lawyers who have done their homework and make objections simply to interrupt that flow and to intimidate opposing counsel.
Remember, the purpose of a deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible. Rather, can it lead to admissible evidence?
. . . .
Proper Deposition Objections
- Privilege. This is the big one. It must be made or it is waived. This covers any privilege such as attorney-client and physician-client. You can ask, “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is the one rare case in which a deponent should be instructed to refuse to answer.
- Form of the question. This objection is usually asserted to make a clear record. For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.
- Mischaracterizes earlier testimony. This is also to make sure there is a clear record.
- Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.
- Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.
For the Lawyerist's list of improper deposition objections, click here.
Preparing Students for the Bar Exam Performance Test (MPT)
I don’t think the commercial cram courses have yet figured out how to train students to handle these bar exam exercises. I have reviewed a new book that offers students a systematic approach to writing good answers: “Perform your Best on the Bar Exam Performance Test (MPT)” by Mary Campbell Gallagher. The book also contains twelve MPT questions with answers and analyses. I have written a promotional blurb for the book (gratis) and think the book is worth your consideration.