Saturday, October 13, 2012
Bruce MacEwen of the legal consulting firm Adam Smith, Esq. talks to Bloomberg Law in this video interview in which he discusses many of the structural problems facing large law firms today including excess capacity (i.e. too many lawyers chasing too few clients), the high carrying cost of associates (more lay-offs may be ahead), the risk of "department store" pricing (where some firms slash prices just to get business) and the increasing threat posed by legal process outsourcing companies (which have grown at an exponential rate the past few years).
One of the most telling observations offered by Mr. MacEwen is that 25 years ago, the typical AmLaw 100 partner earned eleven times the salary of the average American worker. Today. that differential has increased by a factor of twenty five. As Mr. MacEwen says, such growth is simply unsustainable and thus an industry wide price restructuring is inevitable.
Hat tip to ATL.
In an effort to keep up with changes in law firm practice, many of us are training our students to email short memos. Of course, our students think email is old fashioned. Texting is the modern means of communication. It’s more efficient.
Well, when it comes to efficiency, how does texting measure up to Morse Code? You can find out here.
Legal writing professors teach their students that audience is an important consideration when writing or speaking. What might be an appropriate tone for one audience might not be an appropriate tone for another. For example, an advocate should never interrupt his or her opponent when arguing in front of an appellate panel, but interrupting is common before a trial judge. (I think that lawyers should be careful with interruptions even in a trial court.)
On Thursday night, Vice-President Biden employed a very aggressive tone and body language in his debate with Paul Ryan. In praising Biden's performance, one of Biden's supporters, Matt Taibbi, declared, "Biden did absolutely roll his eyes, snort, laugh derisively and throw his hands up in the air whenever Ryan trotted out his little beady-eyed BS-isms." Commentators both praised and criticized Biden's performance. On one hand, Taibbi wrote, "What he got absolutely right, despite what you might read this morning, (many outlets are criticizing Biden's dramatic excesses), was his tone. . . . He was absolutely right to be doing it." On the other hand, Chris Wallace stated, "I have ever seen a debate in which one participant was as openly disrespectful of the other as Biden was to Paul Ryan tonight."
The point of this post is not to praise or criticize Biden's performance; that is for the American people--Biden's audience. Rather, I am using the debate to demonstrate the importance of audience.
The tone and body language that Biden used in the debate would (absolutely) not have been appropriate when arguing before appellate judges. When arguing before such a court, an attorney should be polite, respectful of his opposing counsel, and never interrupt his opposing counsel. An advocate should sit quietly while his opponent is arguing.
One semester during oral arguments, a student of mine rolled his eyes and shook his head throughout his opponent's presentation. I graded him down severely for doing this. A few weeks later, he called me to say that he had seen attorneys in court do exactly what I had graded him down for. I first asked him whether this was an appellate court. He said no. I added that just because he had seen other attorneys do something did not mean that it was a best practice. Several judges have told me that they disliked this behavior, even in a trial court. In other words, the attorneys my student had seen had not considered their audience--the judge.
Again, I am not evaluating what Biden did at the debate. Rather, I think the debate illustrates how important it is for attorneys to consider audience.
Friday, October 12, 2012
Remember the manic (or is it maniac?), pick-up truck ramming, car-smashing Austin, Texas attorney Adam Reposa with the insane TV ad (and here) that's received more than 200,000 YouTube hits? Well, he's back with a short documentary of sorts that explains the story behind his infamous commercial. It also includes another short commercial he made addressing NYC Mayor Bloomberg's ban on super-sized Big Gulp drinks that, among other things, has Mr. Reposa spitting up large quantities of soda while referencing John Stuart Mill. The whole thing is a little over four minutes but well worth it.
Mr. Reposa is nothing if not flamboyant. Enjoy!
The Law Angeles Review of Books has published an interview with Justice Antonin Scalia. The interview focuses on his recent book Reading the Law (with Bryan Garner), which focuses on his interpretation of textualism. Readers might be interested in his view of the Ninth Amendment. The amendment reads:“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Here is the Justice’s view:
[A judge] should apply the Ninth Amendment as it is written. And I apply it rigorously; I do not deny or disparage the existence of other rights in the sense of natural rights. That’s what the framers meant by that. Just because we’ve listed some rights of the people here doesn’t mean that we don’t believe that people have other rights. And if you try to take them away, we will revolt. And a revolt will be justified. It was the framers’ expression of their belief in natural law. But they did not put it in the charge of the courts to enforce.
Look, when I was in law school, if you had asked me what the Ninth Amendment was and my life depended upon it, I would be dead! Nobody ever used the Ninth Amendment for anything. Now, since those who have been using substantive due process have finally acknowledged that it’s a contradiction in terms, it’s silliness, it’s converting a procedural guarantee into a substantive guarantee, they abandon that and they want to jump over to various other devices to enable the courts to do what the courts would like to do. One of those devices is the Ninth Amendment. But that’s not what the framers meant by it. All they meant by it was: I do not deny or disparage the right to abortion, for example. I know that it’s not one of the rights protected by the Bill of Rights but I don’t deny or disparage it. If people want to argue there is a natural right of a woman to have an abortion, that’s fine. The mere fact that its not included in the Bill of Rights doesn’t mean that it doesn’t exist. But just don’t ask me to enforce it.(ljs)
Thursday, October 11, 2012
As reported by Law Technology News, Xerox released today a program that searches through and automatically redacts large volumes of documents in response to attorney prescribed instructions. But that's just the beginning. The new program, which is a free feature added to Xerox's OmniX document review software, provides the supervising attorney with a report that explains the reasons for each redaction, a trail that tracks those decisions, and a "reverse redaction mode" that allows the user to instruct the software to redact everything but the specified items.
The Xerox rep points out that this is not a self-executing feature. The supervising attorney must work closely with their technology people to set the correct parameters for large volume document reviews. But the expectation is that once the software is properly calibrated, it will save the clients lots 'o money that would otherwise be spent on having scores of attorneys review and redact those same documents.
Here's what one attorney said after seeing a demo of the OmniX redaction tool:
Richard Griffith, an associate at LeClairRyan, said he attended a Xerox demonstration of the automatic redaction feature and was impressed. LeClairRyan's e-discovery practice uses 10 to 15 different platforms based on client requirements, which has included OmniX for the past several years, he said. "It looks like a tool that will be very beneficial for teams that need to redact voluminous amounts of documents that have similar patterns," Griffith said, in Richmond, Va. "It's something that will definitely speed up a review workflow, assuming that you have the right people and the right processes to monitor the technology."
You can read more here.
From Education Week Teacher. A lesson on underestimating students:
The British press has been having a good time noting that one of the recently named Nobel Prize winners in medicine, U.K. scientist Sir John Gurdon, wasn't exactly a student whom teachers expected great things from. In his office in Cambridge, Gurdon reportedly keeps an old evaluative report from his science master at Eton secondary school above his desk. The conclusion could hardly be harsher:
I believe [Gurdon] has ideas about becoming a scientist; on his present showing this is quite ridiculous; if he can't learn simple biological facts, he would have no chance of doing the work of a specialist, and it would be a sheer waste of time, both on his part and of those who would have to teach him.
At age 15, Gurdon also ranked dead last in biology in his Eton class.
And now—ehem—he has won a share of the Nobel Prize in medicine for discoveries in cellular development and regeneration that have led to major advances in medical research and the study of diseases.
Surely, there's a lesson in this …
Albert Einstein also was a mediocre student. And some of my so-so students have gone on to successful careers.
Wednesday, October 10, 2012
A few days ago, one of my co-bloggers had a post about an article concerning the value of law school rankings by Robert Steinbuch. His main argument is that "Law students should be particularly informed consumers; they are learned and investing considerably in further education. Rankings are one sound resource available to assist them in this search for knowledge. These metrics should be evaluated—dare I say, ranked—and used appropriately."
I couldn't disagree more because I have never seen a law school ranking that was sound for helping potential students choose a law school. Moreover, I think that anyone that tells students that they should look at law school rankings to help them choose a law school is doing a great disservice to law school applicants.
Let's start with the U.S. News Rankings, which I posted on in detail a few months ago. (here) My conclusion then was that U.S. News has absolutely no value in helping law students choose a law school because most of its criteria are useless or questionable. For example, employment rates, which constitute 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. However, only about 12% of those surveyed responded, and, more importantly, I question how these legal professionals can have knowledge of the approximately 200 law schools in this country. Likewise, the peer assessment score (by deans, most recently tenured faculty member, etc.) constitutes 25% of the total, but these are based mainly on scholarship, which tells students little about which law school is best for them.
Finally, selectivity (25%) can be misleading. G.P.A.s are not uniform because colleges are of different quality and have different grading policies (i.e., grade inflation). As U.S. News has admitted, "The difficulty level of college courses is much less important than the grades received in those classes, because law school admissions committees do an initial sort of applicants based solely on GPA and LSAT scores." (here) As Brian Leiter has noted, student-faculty ratio are manipulable because it depends on how schools "count" their faculty. Likewise, acceptance rates are also misleading because they often indicate how good a law school is at getting applications (such as using free online applications) rather than selectivity.
Professor Steinbuch discusses the National Jurist's Best Value Law School Rankings in some detail. This ranking supposedly combines a law school's quality with its affordability. "The National Jurist ranking is based on average student debt, tuition, cost of living, two-year bar passage average (comparing that to the state's average) and weighted employment rate." Sounds good. However, even Professor Steinbuch questions some of the ranking criteria. For example, he states, "a high average debt that is a function of limited student aid offered by a school is very different from a high average debt caused by a student base that is disproportionately lower income. The latter might be the case at, say, a historically black college, and should not be considered a negative, while the former should be of concern, particularly if the student is interested in (and likely to get) a scholarship—be it merit-, need- or diversity-based." Likewise, he writes, "Overall class bar-passage rates, however, are driven far more by the quality of incoming students—as measured by LSAT scores and undergraduate grade-point averages—than by what any particular law school provides." He adds, "For example, a recent study at my school demonstrated significant differences in bar-passage rates across certain demographic groups—driven at least in part by admissions programs that seek to have classes mirroring the general population—as opposed to those bachelor-degrees students with both higher LSAT scores and GPAs. The cause at one level is simple math. Think of it this way: If Columbia decided now to double the size of its incoming law school class, the average LSAT scores and undergraduate GPAs of the additional students would fall below the first half of admittees, because schools don't generally skip better-qualified candidates willing to attend for less-well credentialed applicants. So, the remaining contenders should have a lower average objective academic profile. The same holds true when increasing constituent class components."
Above the Law has questioned the National Jurist study, declaring "But what’s more interesting is the fact that this entire list could be flawed because the National Jurist calculated the rankings based on incorrect debt data, which accounted for 15% of each school’s overall score." They ask, "Can we believe ANYTHING that is being fed to us these days? How are prospective law students supposed to become “sophisticated consumers” if virtually all rankings are based on false statistics?"
Based on the above, I stick with my original conclusion. There is no existing law school ranking that is of any use to students in choosing a law school.
It was only a few years ago that student opinion surveys found that contrary to popular belief at the time, they weren't demanding that teachers make use of classroom technology as much as we assumed. Indeed, I recall reading an article in the Chronicle of Higher Education describing widespread student frustration with teachers who seemingly used technology for its own sake rather than having clear pedagogical goals in mind. But times have changed; teachers have become more adept at making effective use of technology and perhaps as a result of that students want us to use it more according to a new study by Educause (as reported by Inside Higher Ed.).
Professors are using more technology in the classroom than they were two years ago, and their students have a message for them: Keep it coming.
These are the findings are the 2012 ECAR Undergraduate Technology Survey, an annual study conducted by the research arm of Educause, a nonprofit that advocates for technology in higher education (ECAR stands for Educause Center for Applied Research).
This year’s study, which was released last month, reflects well on instructors. Faculty members, contra their reputation for being change-averse, appear to be adapting well to the expectations of technology-thirsty students, according to the authors. “More students than ever gave positive marks for their instructors’ use of technology,” they wrote.
In 2010, 47 percent of students said most of their instructors were using technology effectively. This year that figure was 68 percent.
At the same time students are hoping faculty members will not rest on their laurels. If anything the gains in satisfaction have bred more demand for various tools.
Amid their ambivalence over instructors’ use of technology in 2010, they did not yearn much for particular tools. In those days 32 percent of students wished their professors made more extensive use of the learning management system (LMS), 19 percent wanted more open educational resources (OER), 18 percent wanted more Web-based videos, and 15 percent wanted more game-based learning.
But as students' confidence in faculty technology deployment has increased, so has their desire for more technology. In the 2012 study, those numbers rose significantly. Now 49 percent of students want more LMS use, 57 wanted more OER, 46 percent want more videos, and 55 percent want more game-based learning.
The conventional wisdom is that if students are bored, it's the teacher's fault for not being more interesting. However, according to new studies summarized and reported by Education Week, perhaps teachers are taking too much responsibility for a problem that is partially attributable to students' emotional state.
"I think teachers should always try to be relevant and interesting, but beyond that, there are other places to look," said John D. Eastwood, an associate professor of psychology at York University in Toronto, Canada, and the lead author of the study. "By definition, to be in the state of boredom is to say the world sucks out there in some way. But often that's not the case; often it's an interior problem, and [students] are looking in the wrong place to solve the problem."
. . . .
Lack of Focus
Under Mr. Eastman and his colleagues' definition, a student who is bored cannot focus attention to engage in the class activity—and blames that inability to focus on the outside environment. A dry lecture style or an uninteresting topic might trigger boredom, Mr. Eastman said, but so can other issues that interfere with a student's attention and working memory.
For example, students with attention deficit hyperactivity disorder are more likely to report feeling bored than students with normal attention. Students tackling material that is too difficult for them—and thus taking up more working memory—also are more likely to report it is "boring" rather than simply frustrating, Mr. Eastman and other researchers found.
"When people are in a negative emotional state, discouraged, or down, we know that causes attention problems," Mr. Eastman said. "We know when people are stressed it makes it harder to focus and pay attention at a very basic, fundamental level."
Like any type of stress, boredom hampers the prefrontal cortex, the brain area positioned just behind that student's furrowed brow that allows a student to reason and hold different facts in working memory.
Disrupting the brain's executive function also allows its emotional center, the amygdala, to take over, which might explain why bored students are more likely to feel tired, anxious, or depressed, and why they sometimes respond by either "acting out or zoning out," according to Judy Willis, a neurologist and teacher educator from Santa Barbara, Calif., who was not part of the report.
In fact, boredom and other types of stress appear to feed on each other. Students who are stressed due to emotional trauma, for example, are more likely to disengage and feel bored, which adds to their stress.
'Reappraising' Dull Tasks
Reducing boredom and its underlying stress can reduce misbehavior and increase focus—in both the bored child and in surrounding students, Ms. Willis said.
Effective ways to reduce boredom can be counterintuitive to students looking for a quick fix, though. "I think if someone is bored, the worst thing you can do is respond to it by overstimulating," Mr. Eastman said. "It's like quicksand; if you just thrash around, you're even more stuck."
. . . .
Ulrike E. Nett, a student motivation researcher at the University of Konstanz, Germany, studied the coping strategies of 976 students in grades 5-10 who were given a mathematics problem selected to be potentially boring and difficult. Some "avoided" the task, either by studying a different subject or by talking with friends. Others criticized it and asked for more interesting material or assignments. Still others "reappraised" the situation for themselves, considering ways it could be relevant to them and how to combat their own boredom.
For the student, "it's important to learn, when I feel bored, that's an opportunity for me to become aware of my disengagement and address it," said Mr. Eastman, who was not part of Ms. Nett's study.
The last group of students had higher academic achievement in the task and reported both more enjoyment and less anxiety. Moreover, Ms. Nett found that students who were able to identify and reappraise their own feelings of boredom had fewer bored episodes over time.
Continue reading here.
Tuesday, October 9, 2012
And speaking of personality clashes (see below), here are some excellent tips for dealing with difficult opposing counsel from the Velvet Hammer blog. As the competition to find and keep clients becomes more ferocious, encountering opposing counsel who affect the persona of a prick in order to gain a "perceived" advantage is something new lawyers in particular may encounter often. Some consider such "bully-boy" tactics a de rigueur part of being an effective advocate (they aren't). So take heed of the following advice but please refrain from such tactics yourself. Two wrongs don't make a right and besides you get more flies with honey than with vinegar.
- Severe all emotionality with the lawyer. You are the professor watching this interesting/silly specimen flail about in its petri dish.
- The louder they yell, the calmer you grow.
- Don't trust anything they say - document everything.
- Be gracious, sweet, kind, even solicitous in your writings. Instead of saying: Dear Bad Attorney you are a mean jerk. Say - Dear George - thank you so much for your most recent letter. I greatly enjoyed reading it. There are a few areas where you were a little mistaken in your beliefs. Here, let me spell them out for you. I know that sometimes it is hard for you to keep these details straight. I'm honored to be able to help you do your job better. If you need my assistance again in the future. Then by all means. Simply ask. I'm happy to help.
- Protect your client. This is what motions for protective order are for. Dealing with rude lawyers is an occupational hazard that we need to be prepared for. But our clients are entitled to be treated with dignity and respect. Fight for them!
- Protect your staff. Pick on me all you want, but leave staff out of it. If the line is crossed, ice the lawyer. They will have to communicate in writing or via our direct phone line.
- Keep a sense of humor.
Hat tip to the ABA Journal blog.
In an article in today's Business Insider blog entitled Law School Ridiculed For Opening In The Middle Of History's Worst Law School Crisis, Professor Paul Campos takes to task the Dean of Indiana Tech Law School for starting a new school, which will be Indiana's fifth, at a time when the job market for new grads is abysmal. But it was the following quote, though, that really provoked the Dean's ire:
"Chutzpah has been defined as murdering your parents and then pleading for mercy because you're an orphan," Campos wrote. "How about setting up another legal diploma mill in a hyper-saturated market, while claiming that what will set your school apart is its emphasis on 'ethics' and 'professionalism'?"
After the recent presidential debate, several commentators implicitly criticized President Obama for talking like a law professor. In the past, this criticism also has arisen. Of course, few commentators have ever spent time in a law school and have little idea of how a law professor talks.
I think the popular view is that law professors speak in logical arguments that are hard to follow, have or show no emotion, lecture at people, and don’t really care if their audience understands them. I suspect that sometimes we law professors veer in a direction that encourages some of these traits to emerge. Something to be on guard against.
A couple of days ago, I had a post on the value of scholarship in today's law schools. I discussed three views, then gave my own perspective. A couple of the authors I discussed mentioned a post by Maria L. McCormick on the Workplace Law Blog: Job Security, Law School, and the Bigger Picture. This article, which was written in response to the resignation of the Dean at SLU, does an excellent job of balancing scholarship and teaching.
She states the problem: "One of the most compelling pieces of this for every law professor, student, or person thinking about going to law school is the way these events are seen as having some relationship to the problems law schools and universities face right now: the high cost of higher ed. and especially law school, declining enrollments, declining financial support from sources outside of tuition, and the "worth" of earning a law degree. Above the Law . . . saw the resignation as resistance to university efforts to use the law school as a cash cow, and much of the debate in the comments there (shudder) and at least some to Paul Caron's initial post have focused on whether, to the extent the fight is over money, the money is for the benefit of students or faculty."
She continues, "the message on one side is that if the money was to be spent on research stipends for faculty, that expenditure is not legitimate and should not be made by the law school (or the university) in the first place. . . . In the events at SLU it has at least partially been suggested that those who engage in scholarship or encourage students to do so are not teaching students what the students need to learn. . . . On the other side, there seems an unspoken assumption that research is not only a legitimate part of what a law school should do, but that it's imperative to engage in a lot of it."
Professor McCormick argues, "Absent from all of this debate, at least what I have seen of it, is much real progress with the pressing issues that we individually and institutionally are all struggling with. . . . Increasingly, I'm frustrated by what looks like the same old dualistic tropes --teaching v. research, skills v. doctrine, doctrine v. theory, academic v. professional school, liberal arts v. technical education, tenured v. contract, at-will v. job security -- without digging into these labels or categories in the first place. And the rhetoric that puts what we do in business terms -- business model, deliverables, outcomes, opportunity costs, returns on investment -- troubles me too because it seems to already presume that some things may not have value unless they are easily commodified." She adds, "Anyone who has talked to me recently is already tired of hearing me say it, but I think each of us and each of our institutions needs to be able say what students and the public gain from what we provide and how."
Next, Professor McCormick defends scholarship: "I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients."
Then, she discusses teaching: "Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning. Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that."
She concludes, "there are many ways in which different members of the law school community contribute to teaching and mentoring students, serving the public, and contributing to the growth of their professions. Those need to be identified, explained, and valued too."
I agree with Professor McCormick that scholarship and teaching are interrelated. Doing scholarship improves teaching, and teaching improves scholarship. How many of us have gotten an idea for an article from our teaching? More importantly, doing scholarship helps our students because it makes us better teachers. We learn from our scholarship and become better thinkers.
I also like Professor McCormick's concept of teaching. One of the most important lessons of the new teaching theory is that the emphasis should be on how students learn. (here) We cannot be effective teachers if we don't understand this. Also, as Professor McCormick points out, students need to learn processes and skills.
We should also be able to demonstrate to the public and our students what they gain from law schools. Looking at outcomes has been an important part of legal education reforms, and this includes not only student outcomes, but also institutional outcomes.
Finally, we should reject the commodification that Professor McCormick mentions. The recent events at the University of Virginia demonstrate the nefarious effect that commodification can have on a learning institution. Of course, we have all seen commodification's effects in the deification of the U.S. News Law School Rankings. (In addition, some scholars have argued that an emphasis on scholarship does not generally have an effect on U.S. News Rankings. here and here) Instead, law schools should continue their interrelated missions of teaching and preserving and furthering knowledge.
As I said in my last post, law schools should not eliminate scholarship, but they should rebalance the scholarship/teaching mix to put teaching at the top. Everything we do should be focused on giving the students a solid legal education. This does not mean that we give into everything the students want or that everything law schools do must directly benefit the students, but rather that we keep their interests in mind in every decision we make.
In sum, as Professor McCormick has noted, many people have already done a great deal of work in reforming legal education. However, a great deal more work is left to be done, and we must overcome the forces that resist this change and focus on what is best for our students.
Monday, October 8, 2012
The pendulum swung in favor of job growth in September by adding 1,000 new jobs according to the Bureau of Labor Statistics which somewhat compensates for the 1,400 positions lost in August. Though the job growth stats have swung back and forth all year, at present we've seen a net gain of 2,900 jobs since January 2012 according to AmLaw Daily. It also reflects a net gain of 5,900 jobs from this time last year.
Here's a month-by-month recap:
- September 2012 - 1,000 jobs added.
- August 2012 - 1,400 jobs lost.
- July 2012 - 1,500 (revised) jobs added. (Revised again to 2,000 jobs added).
- June 2012 - 20o jobs lost.
- May 2012 - 600 jobs added
- April 2012 - 3,900 jobs added
- March 2012 - 1,300 jobs lost.
- February 2012 - 800 jobs added.
- January 2012 - 1,000 jobs added.
The new word that admissions counselors are using is “grit.” Colleges want students who have grit:
It’s as good a word as any for the determination that many educators now associate with student success. Grit, as described by some researchers, is the habit of overcoming challenges, of learning from mistakes instead of being defeated by them. One administrator described it as “that fire in the belly.”
Colleges want students with passion, curiosity, and a sense of purpose. My law school is moving in this direction, although, instead of “grit,” we talk about “leadership qualities.” Students with grit, but with slightly lower numbers may find a welcome here. Inviting promising students may not affect our US News rankings in a positive way; however, it will help us identify and educate future leaders.
You can read more here.
Sunday, October 7, 2012
This article from today's New York Times, They Work Long Hours, but What About Results?, by a former BigLaw Partner who now teachers at Harvard Business School, argues that measuring employee value by hours worked rather than results achieved makes no sense in today's knowledge based economy. Law firms, of course, are wedded to the billable hour because it shifts risk to the client should the matter take longer than estimated. But the author points out this encourages inefficiencies by undermining the incentive to get work done quickly (when was the last time you saw someone who is paid by the hour rush to finish the job?). Why not bill based on the value added to the client matter thereby freeing-up attorneys to spread their skills among several more client matters over the course of the day (ed. note: Doesn't the practice of "premium" billing already do this?).
The author acknowledges that research shows that the impression an employee makes upon the boss is influenced by the amount of "face-time" she puts in at the office. So any new employee trying to prove herself is going to find it difficult, if not career defeating, to avoid late nights and weekends. It's also the unavoidable nature of law practice. But putting aside for the moment boss perception issues, the author serves up some tips for working more efficiently insofar as you can leave early without damaging your career. Some of these are obvious and others might be more difficult to implement because of the aforementioned need for face-time but, hey, if even one of them helps you, our work here is done.
- It's not just your perception, those long meetings truly are a waste of time. Try avoiding them altogether if you can but if not, commit to attending for no more than an hour. The author offers some diplomatic excuses you can use such as blaming your absence on those phantom "impending deadlines;"
- Don't try to read everything that comes across your desk; read only what's important to your job and skim the rest (in defense of more reading and less skimming, query whether you sacrifice the development of the kind of creative problem solving skills that only come from the serendipitous practices that the author counsel's against).
- Follow the OHIO email principle - "Only Handle It Once." Decide whether you really need to respond to emails and if so, do it right then and there. Otherwise, delete and forget it.
- Learn to write more efficiently by starting with an outline, then create a rough draft and finally polish it later. Trying to perfect your sentences as you write them is terribly inefficient and you'll likely find yourself endlessly revising without making much forward progress
- Learn to distinguish the writing projects that have to be "A" calibre work and those where "good enough for government work" is enough.
Of course most of these tips boil down to recognizing you can't possibly do it all within the confines of the workday and must instead begin to develop some professional judgment about when to cut corners and when to bring your "A" game. In some form or another, we all have to be developing such strategies in the face of information overload that will overtake our lives if we don't learn to work more efficiently.
If you'd like to read more, please click here.
Producing scholarship has been the main function of law professors since Langdell's time. While many law schools have stressed the importance of teaching, they still hire and evaluate their professors based mainly on scholarship. Recently, however, the traditional place of scholarship has been questioned because of its cost and a renewed emphasis on the importance of teaching.
The role of scholarship in today's law schools has been the subject of several blog posts over the last few days. Jason Solomon has posted a defense of legal scholarship on the PrawfsBlawg. He believes that legal scholarship does not serve the instrumental function of moving law schools up in the U.S. News Rankings. Rather, he writes, "So legal scholarship has to be defended on its own terms, and that's a good thing. Because despite the caricatures, we have a good story to tell." He then gives several examples of useful scholarship from his faculty at William & Mary. He concludes, "So my eloquent response to the claim that law professors don't write on things of importance to the real world is: 'Really?' I just think the critique is off-base, and we ought to defend the value of legal scholarship more forcefully and explicitly. Without academic study of the legal system, debate on important legal and policy issues would be driven exclusively by interested parties -- a phenomenon that torts scholars like me are all too familiar with, as the punitive damages debate has been dominated by research that Exxon created by funding Cass Sunstein and others."
Paul Horwitz responds to this post on the same blog, emphasizing that the question is not whether scholarship is instrumental or useful, but "how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be" (suggested by Steve Lubet in the Solomon comments). He also argues that scholarship does not have to be useful, writing "I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion." He adds, "Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding. " He concludes, "I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. . . . I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector. I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them."
At The Legal WhiteBoard, Jeff Lipshaw agrees with Professor's Lubet's approach, stating the question as "is there too much scholarship relative to the subject?" He creates a thought experiment based on a barber college: "Barber colleges decide next week that faculty, themselves a tiny fraction of the total number of barber college graduates, not only should be teaching students how to cut hair and serving the institution, but writing at least one fifty page article a year. The article could be about barbering, but maybe not. The article could be practical or theoretical. It could be disciplinary or inter-disciplinary." After giving another thought experiment, he states, "In each case, isn't it clear that we are likely to have too much scholarship wholly as a result of the structure of the institutions and the incentives for advancement within them?"
Professor Lipshaw concludes, "The closest educational analogs to law, I think, are medicine and business. Medical educators may often have the same degree as practitioners, but schools use armies of clinical professors to teach clinical skills. Those clinical professors, I'm pretty sure, aren't required to create scholarship. Business schools, like law schools, turn out armies of graduates. But (and I've done all of about thirty seconds of research on this . . .), full-time tenured and tenure-track faculty overwhelmingly get Ph.D.s, differentiating them from the students, who graduate with M.B.A.s."
I would like to look at the role of scholarship in today's law schools using a different framework. I will also focus on cost, but a different type of cost--the cost to the student through lost teaching resources. I believe that, with today's emphasis on scholarship, law schools are not devoting enough resources to teaching. (Of course, the tuition cost is important, too).
It has been said that law schools have three main functions--scholarship, teaching, and service. Under the Langdellian Bargain, scholarship is by far the most important of these functions. I believe that today we need to keep these three functions, but that the role of teaching should be brought to the top. Law faculty need to devote more time to teaching (they need to teach more classes), and they need to be more rigorous in how they teach (they need to adopt the latest research in legal education, especially using problem solving in doctrinal classes). Similarly, law schools should place teaching at the top when they hire and evaluate faculty.
I think that scholarship--both practical and theoretical--should still serve an important function in law schools. Universities have traditionally been the institution for preserving and advancing education, and I see no reason that this shouldn't continue today. (Like Professor Solomon, I am suspicious of private industry.) In addition, I think that doing scholarship helps teachers improve their teaching skills, and it helps them become experts in their subjects.
A question I ask is would it hurt legal scholarship if law professors taught one more class a year so that class sizes could be smaller? Are research sabbaticals that important? Wouldn't it be better to give students more individual attention?
I know that adopting better teaching techniques would not be hard. Several publishers, particularly Carolina Academic Press and LexisNexis, have recently published texts that include problem solving exercises and other new teaching techniques.
In sum, I think that scholarship is still important for law professors. However, the issue is the cost and how we balance scholarship with teaching.
In 2009, Geoffrey Pullum wrote a highly critical review of Strunk & White’s “The Elements of Style,” one of the early bibles on the subject. Now, he has written a short piece about all the hate mail that his article generated. Both articles are in the Chronicle of Higher Education. The Comments following the article are worth reading. Bryan Garner has written a defense of S&W. In addition, you can find a balanced assessment at Pam Nelson’s The Grammar Guide.
Strunk & White was my first introduction to writing style. I didn’t come across it until my first year of law school. When I talk about writing with nonacademic lawyers, I am surprised by how often they refer to this little book as the best authority on its subject. I suspect that they encountered the book during their collegiate or legal studies as I did. Although one can quibble about some of the book’s elements, by and large, it sends a sound message about writing in a clear, crisp style.