Saturday, November 17, 2012
This is a law review student comment by Penn. State. 3L Christopher Polchin and is available at 117 Penn St. L. Rev. 201 (2012). Here's the abstract:
The difficult legal job market has brought attention to the reporting practices of law schools regarding their graduates' employment data. Allegations have emerged that this employment data is highly misleading. This Comment outlines the nature of the law school reporting problem and the competitive environment that gave rise to it. In addition, this Comment examines possible solutions to the data problem, particularly the availability of civil remedies in tort for aggrieved students. Finally, this Comment addresses multiple alternatives that would provide increased clarity in law schools' employment data.
Almost all law schools solicit outside reviewers to evaluate the scholarly work of faculty members up for promotion or tenure or sometimes even for retention. A recent article in the Chronicle of Education questions the value of these letters. It notes that almost all the letters are positive, even effusive. I particularly liked this paragraph:
And they write so well and so cogently. Today I have read the expressions "highly commendable," "groundbreaking," "impeccably rigorous," "carefully designed," and "recognized nationally"—all phrases I wish I could think of when I am the writer. Instead, I come up with "doing good work," "interesting," and "innovative." At least I didn't say "cool."
I usually write a couple of these letters each year and am guilty of using these terms. I want to be honest. Yet, I am hesitant to be overly critical and possible help destroy someone’s career.
Not all letters are effusive. Over the year I have seen younger colleagues having to dispute letters written by cranky or even ignorant outside reviewers. Sometimes “inside” reviewers also can be unfair.
My solution: Hire only people whom you think will succeed and mentor then so that they do succeed. As a result, you will encounter fewer difficult decisions down the road. Your knowledge of your candidate will determine how you evaluate the reviews.
Friday, November 16, 2012
In the case of Belli v. Hedden Enterprises (Westlaw subscription required) currently pending before a Florida federal district court, the plaintiff's attorney sought to file a motion in excess of the court's 25 page limit. Before the court had a chance to rule, the attorney filed his 29 page brief anyway, something that did not sit well with Judge Steven D. Merryday. Accordingly, Judge Merryday denied the plaintiff's motion in a published order that included a passage from the offending brief which the judge redlined to show the attorney how to edit his writing to make it more concise (and thus meet the court's page limit rule). Judge Merryday then referred plaintiff's counsel to Bryan Garner's book, the Elements of Legal Style, for further help with his writing.
Here's full text of Judge Merryday's order:
On August 3, 2012, the plaintiffs moved (Doc. 22) for leave to submit a motion that exceeds the page limit. The motion states, “The complex factual and legal issues involved[ ] make it difficult to meet the page limitation of twenty-five [ ] pages.” Two hours later and without leave, the plaintiffs submitted (Doc. 23) a twenty-nine-page motion. Based on the mistaken premise that this FLSA collective action presents atypically complex issues, the motion to exceed the page limit (Doc. 22) is DENIED. The motion for conditional collective status (Doc. 23) is STRICKEN.A review of the proposed, twenty-nine-page motion's commencement confirms that a modicum of informed editorial revision easily reduces the motion to twenty-five pages without a reduction in substance. Compare this:Plaintiffs
[move] (1)[to] conditionally certify , ZACHARY BELLI, BENJAMIN PETERSON, ERIC KINSLEY, and LARRY JOHNSON, (hereinafter referred to as “Plaintiffs”), individually and on behalf of all others similarly situated (“Class members”), by and through the undersigned counsel and pursuant to the Fair Labor Standards Act of 1938, (the “FLSA”), 29 U.S.C. § 216(b) files this motion seeking an order this case as a collective class action; (2)[to] requir[e]ing the Defendant ing to produce and disclose , HEDDEN ENTERPRISES, INC. d/b/a INFINITY TECHNOLOGY SOLUTIONS (hereinafter “Defendant”), the names[,] all of addresses [,] and telephone numbers of the [each] potential and last known [c]lass C [m]ember M ; and (3)[to] authoriz[e] s so that notice may be implemented notice ing [of this action to each] similarly situated person by U.S. First Class mail to all employed by Defendant within s three the past years[.] (3) to inform them of the pendency of this suit and to inform them of their right to opt-in to this lawsuit. In support of this Motion, Plaintiffs sets forth the following facts and provides this Court with a Memorandum of Law in support of the Motion, and asserts as follows:To this:Plaintiffs move (1) to conditionally certify a collective action; (2) to require the Defendant to produce the name, address, and telephone number of each potential class member; and (3) to authorize notice of this action to each similarly situated person employed by Defendant within three years.Concentrating on the elimination of redundancy, verbosity, and legalism (see, e.g., Bryan A. Garner, The Elements of Legal Style (2d ed.2002)), the plaintiffs may submit a twenty-five-page motion on or before August 15, 2012.
Big tip of the hat to Above the Law.
I have written a book called The Vanishing American Lawyer. My premise is not that too few people have a legal education. I say, instead, that what people now do with legal training is changing rapidly and likely will continue to become more diverse. That leaves me suggesting that there is little left to the general concept of being a lawyer.
Yet people still talk about lawyers, and the question of what it means to be a lawyer is especially timely in light of current American Bar Association efforts to revise the standards by which American law schools are accredited. That ABA project, in turn, must necessarily begin-at least implicitly-with the question of what kind of people law schools are charged with producing. That is the question I hope to address in this article; and my answer will be that the products of today's and tomorrow's legal education will need to be different than those that professors have trained up to now.
What is Happening to Law Practice That Will Change What It Means To Be a Lawyer?
The traditional working definition of a lawyer has been someone licensed to engage in the “practice of law.” But that definition is circular; it presupposes that we know what it means to practice law. The practice of law, in turn, has been said to consist of applying the whole body of law to a specific client's question or problem. That definition might seem broad enough to let the idea of being a lawyer remain constant. But changes from globalization, to the way clients get information, to the skills needed to perform many legal tasks foreshadow significant changes in what lawyers will actually do over the next twenty years and beyond.
On this date [Nov. 15] in 1882, Felix Frankfurter was born in Vienna, Austria. (Hat tip: Brad Snyder.) Twelve years later, he and his family emigrated to New York City. Young Felix soon learned English. He excelled in school, read voraciously, hung out at Cooper Union, graduated from City College, graduated from Harvard Law School, became a lawyer, served as a federal prosecutor and in government offices in Washington, joined the Harvard Law School faculty, taught thousands, became a leading American legal academic, wrote widely for law specialists and for the general public, helped found the American Civil Liberties Union, advised and assisted numerous political candidates and public officials….
In June 1935, U.S. Treasury Department official Robert H. Jackson met Professor Frankfurter for the first time. They were participating in a White House meeting about national tax policy. Frankfurter, an active presidential advisor, also was President Franklin D. Roosevelt’s houseguest.
That Frankfurter-Jackson acquaintance developed, through continuing contacts and work together, into a deep friendship. In January 1939, Jackson and others aggressively, successfully urged President Roosevelt to nominate Frankfurter to succeed Justice Benjamin Cardozo—who in 1919 had officiated at Frankfurter’s marriage to Marion Denman—on the Supreme Court of the United States.
In summer 1941, FDR nominated Attorney General Jackson to the Supreme Court. He was confirmed, joining Frankfurter on the bench for the entirety of Jackson’s judicial career.
You can read more at the Jackson List
We have talked a lot on this blog about the need for lawyers who are self-regulated, self-reflective learners. The same call comes from a practioner. Why You Need to Self-Critique in Law School by Randall Ryder.
Ryder declares, "When you graduate law school, you should be able to think, talk, and write like a lawyer. You also need to be self-reliant and able to work on your own. With the legal economy undergoing a transformation, employers want young attorneys who jump into the fire right after graduation. You will still learn as a young attorney, but most employers expect you can complete a task on your own. In other words, you will be assigned a writing assignment and expected to finish it without much, if any, assistance."
He adds: "Every lawyer is different, but most attorneys probably don’t have the time (or interest) in reading an outline or a rough draft of a task they assigned you. Even if you have a mentor—it’s your job to research it, write, polish it, and submit a final product. If you can develop the ability to self-critique in law school, you will put yourself in a better position to succeed after law school."
He concludes, "If you are completely dependent on detailed feedback from other individuals, you are in for a rude awakening after law school."
Among the advice he gives to law students is to "Read, read, and read again" (your drafts) and to read your writing out loud.
(Scott Fruehwald) (hat tip: Jennifer Romig)
Thursday, November 15, 2012
The nineteen member panel formed last August to study the current state of legal education and make recommendations for the future has moved up the deadline for completing its work from spring 2014 to fall 2013 recognizing that time is of the essence. The committee is also interested is also soliciting public comment, not on the already well known problems related to the oversupply of lawyers but instead it's looking for constructive ideas about how to fix them. From Law.com:
The task force the American Bar Association formed in August to examine the challenges facing law schools is asking for public input on questions ranging from how the cost of legal education hurts students and the legal profession, to what law schools should seek to achieve during the next 25 years.
The 19-member Task Force on the Future of Legal Education also is moving up the time frame for completion of its work. The group originally was slated to issue its recommendations in spring 2014; now, it plans to submit that report in fall 2013.
"It's our view that the pressures on the profession and law schools are sufficiently serious that we needed to act more quickly," said former Indiana Chief Justice Randall Shepard, chairman of the task force. "We hope to have a draft report in 10 or 11 months."
Shepard said the task force members are less interested in looking back, and more focused on concrete proposals.
"We don't want people to recite the current set of dilemmas," Shepard said. "There is a Niagara of discourse on the problems—that's been laid out in great detail. We're hoping that people will write to us about the actions they think might be productive."
The task force isn't only looking at what the ABA should do, but also at what law schools, universities, bar examiners and other actors might do. Thus far, the task force has split into two subcommittees, one concentrating on the cost and economics of legal education, the other on the regulation and delivery of legal education.
The first subcommittee is seeking comments about the ways in which law school costs affect current and prospective students, faculty, universities, recent graduates, clients, the legal profession and society as a whole. The other subcommittee seeks comments regarding the goals law schools should adopt; student demographics; and how schools should be financed and accredited.
November 16 marks the 17th anniversary of my heart transplant. The anniversary is like a second birthday. Back in 1995, I spent 4 months in the hospital waiting for my turn to get a new heart. I think for that year, I had the longest wait of any patient in the hospital. Today, the typical wait is much longer, although patients usually wait a home longer.
At this point, I can expect to live a normal life span. But for many, their lives end prematurely, because there are not enough hearts and other organs to go around. Yet, it’s so easy for healthy people to sign an organ donor card or to have “organ donor” stamped on their drivers licenses.
I think about my transplant every day. I celebrate the chance that I have been given to continue to live a full life.
Wednesday, November 14, 2012
We'd previously reported that some corporate clients are trying to save on their legal bills by purchasing their own contracts with commercial legal research companies like Wexis and Bloomberg and then insisting that outside counsel use those accounts whenever conducting research as a means to avoid the mark-up law firms normally charge. The following story from today's ABA Journal blog indicates that some firms are now choosing to eat the cost of legal research entirely in order to avoid the ire of clients who may walk if the bills get too large.
With clients increasingly primed to demand discounts, balk at hourly rates and refuse to pay for associate lawyers, a greater number of law firms have found themselves absorbing legal research costs as a way to shrink their clients’ tabs.
More and more billing partners are knocking research costs off invoices before they’re even submitted to clients, legal consultant Rob Mattern of Mattern & Associates recently told me.
“They don’t trust that the rates charged are a fair representation of what the firm is paying [to the third-party legal research vendor].”
This trend is apparent at firms that negotiate deals with research providers but historically haven’t passed along discounts they received to their clients, sometimes as a means to collect on other, nonbillable items, Mattern added. Mattern's firm’s 2012 Cost Recovery survey reported an influx of firms with clients who either balked at or outright refused to pay for legal research.
While some firms have adopted policies to charge clients only the hard costs billed to them, others are adding legal research charges to the cost of doing business.
“The third-party cost of online research used to be a billable charge to everyone, and we’re seeing pretty fast that’s been eroded and a lot of firms are treating it as overhead,” Lou Andreozzi, chairman of Bloomberg Law, told me.
In fact, 43 percent of law firm respondents said they absorb more of their legal research costs today than in 2010, according to a recent Bloomberg Law survey (PDF) of 97 law firms, ranging from 50 to more than 400 attorneys. And transactional matters are less likely to recover legal research costs than litigation.
Continue reading here.
Matt Bodie is running a five-part series on the law school financial crisis this week on the PrawfsBlawg. His topics are:
- MONDAY: Is it better to cut tuition or class size?
- TUESDAY: If tuition is to be cut, is it better to cut the sticker price or increase aid to students? And if increasing aid to students, should it be through merit scholarships or loan repayment assistance?
- WEDNESDAY: If a school is cutting costs, is it better to cut positions or cut salaries?
- THURSDAY: If salaries are to be cut, is it better to have an across-the-board cut or cuts based on different principles?
- FRIDAY: Should the faculty be responsible for implementing a cost-cutting plan or is that best left to administration?
There are already a number of very good comments.
Tuesday, November 13, 2012
OK, so this little trick didn't actually work out for them (the reason is explained below) but apparently it's a technique that's been successfully employed by terrorists and teenagers alike hoping to keep their email exchanges secret from prying eyes. What is it, you ask? Open a Gmail account with your clandestine accomplice and then compose and exchange emails in "draft" form which remain on the server rather than sending them which provides IP addresses that can be traced. The Business Insider explains:
The CIA director and his biographer had a shared Gmail account and wrote some of their personal missives as draft emails, which were left in a draft folder or an electronic, "dropbox".
They could each then access the shared account and open the other's draft messages, reading them without the emails actually being sent.
Sending emails between two separate accounts leaves an electronic trail, including IP addresses that have been used.
Al Qaeda terrorists began using the technique years ago. It allowed them to exchange information without sending traceable emails. An account would be opened by one conspirator and a draft email written and saved. The account could then be opened by a co-conspirator with access anywhere in the world, who could read the draft email and delete it.
The process meant the information had never been sent in the form of an email, making the electronic trail weaker. The technique has since been copied by teenagers in many countries to avoid having their emails monitored by their parents.
Despite the care taken by Gen Petraeus and Mrs Broadwell in keeping their email exchanges secret, it was precisely the type of trail they were hoping to avoid with the Gmail trick that resulted in their affair being exposed.
FBI investigators were able to use the data trail left when Jill Kelley, a 37-year-old Florida socialite who was family friends with Gen Petraeus, received emails allegedly warning her to stay away from the former CIA director. The data trail revealed that the emails were being sent by Mrs Broadwell from an anonymous email account, information which eventually brought the affair to light.
Monday, November 12, 2012
David Lat filed the following report after attending a conference last Friday at George Mason University School of Law entitled Unlocking the Law: Building on the Work of Professor Larry Ribstein. Specifically, Mr. Lat describes the discussion that took place during a panel called The Past and Future of Legal Education.
John O. McGinnis presented a paper arguing for an undergraduate option for legal education.
It’s not an entirely novel proposal — Elie attended a conference over the summer where another professor presented a similar idea — but it’s certainly worth considering. Here’s how McGinnis described his proposal in a Wall Street Journal piece (co-authored with Russell Mangas of Kirkland & Ellis):
States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.
An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.
This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.
I support the idea of reducing classroom time and combining formal instruction with paid apprenticeship. I outlined a similar proposal in the New York Times last year.
In his conference presentation, Professor McGinnis suggested that about 60 credit hours of coursework could suffice for an undergraduate degree in law. This might require change from the American Bar Association, since the ABA currently requires 80 hours of coursework to earn a law degree from an ABA-accredited law school, and many jurisdictions require those who sit for the bar to have graduated from an ABA-accredited school. (Northwestern Law’s former dean, David Van Zandt, has persuasively argued why this requirement should be reduced.)
McGinnis argued that his proposal of allowing for an undergraduate option, to be offered in addition to traditional graduate study in law, would have several advantages. It would lower the cost of getting a legal education, in terms of eliminating both the cost of a J.D. degree and the opportunity cost of graduate study in law, and this lower cost would hopefully translate into lower-priced legal services for consumers. But consumers would still be protected, thanks to the requirement of bar exam passage.
. . . .
One interesting query from the Q-and-A: given the glut of lawyers we already have, why do we still see so many Americans unable to afford legal services? Why hasn’t the cost of legal services for ordinary Americans come down dramatically, thanks to the large number of unemployed and underemployed lawyers out there?
McGinnis suggested that some law school graduates might be seeking work outside the profession because it’s a better way for them to earn money to pay off their student loans than trying to hang the proverbial shingle. If their educational debts were more modest, maybe some of these individuals would stay in the legal profession and attempt to provide their services to clients in a cost-effective manner.
. . . .
The subject of what the future might hold for the legal academy and legal profession as a whole came up in a subsequent panel. Professor Benjamin Barton of the University of Tennessee College of Law presented a paper entitled “A Glass Half Full Look at the Changes in the American Legal Market.”
Professor Barton observed that after years of incredible growth, the legal profession is experiencing a painful transition process. He identified three factors contributing to that transition: (1) in-house legal departments paying less to outside firms, (2) the rise of LegalZoom and similar services on the consumer side, and (3) the flood of law school graduates seeking jobs.
So where’s the “glass half-full” analysis? According to Barton, after the legal profession goes through this difficult transition — one in which unemployed and underemployed lawyers will abound, and some law schools might lose ABA accreditation or even close — things will be better. Corporate legal departments and individual consumers will benefit from more reasonably priced legal services. Fewer people might go to law school, but these people will have a better idea of what they are getting into, as well as more reasonable expectations when they come out. There might be fewer jobs in law firms, but people lucky enough to obtain these jobs will enjoy higher career satisifaction (perhaps because they went to law school because they actually wanted to practice law, or perhaps because many of the more routine, less pleasant tasks got outsourced or taken over by technology).
Continue reading here.
Many British universities are giving the National Student Survey (NSS) to students at the end of their final year to gauge student learning and satisfaction. In an intriguing article, Principal Lecturer at Canterbury Christ Church University John Lea argues that the survey belongs at the end of the first year. Moreover, he sees a different purpose for the survey:
But the NSS is troubling for a simpler reason as well: its customer-orientated questions are asked at the end of an undergraduate degree, at the very point when one might have hoped that students would have moved beyond such a depiction of their experience. The place for a satisfaction survey is surely at the end of the first year, at the point when it is understandable that they would still be dependent on their instructors and their teaching, and when they are still being informed of the accepted knowledge of their chosen discipline.
Any survey after that must surely start reflecting how they have moved on from the comfort and safety of the textbook to the frontier of disciplinary knowledge, and asking them to reflect on what contribution they themselves have made to the learning process and knowledge production. In which case perhaps the most intriguing questions to ask in a final-year survey would be: Do you still need your professors? Can you set your own learning outcomes? Can you accurately mark your own work? At least the American NSSE is a move in that direction.
As currently constituted, the NSS keeps students in a prolonged state of dependency, and, echoing that old Rolling Stones song, tries to keep academics concerned with just how white their shirts can be. Fine perhaps for the first-year experience, but isn’t this pretty useless information—which won’t fire anyone’s imagination—by the end of the final year? What’s needed is an engagement survey, not just a satisfaction survey. To paraphrase President Kennedy’s line, isn’t it time we all tried to shift the emphasis and ask students not what their university has done for them, but what they have done for their university?
Many American universities employ a similar measuring device, the National Survey of Student Engagement (NSSE). I don’t know of an U.S. law school that employs a survey at the end of the first year that asks students about their learning process and their growth as independent learners. If you know of such law schools, please send along a comment to this posting.
I was recently reading the ABA Publishing Author Guidelines Manual, and I noticed the following: "The Bluebook has never cited books properly: do it one better by including the author’s full name, the book’s full title, the publisher, and the year of publication. Your readers will thank you."
Before going to law school, I got a Ph.D in musicology. All the citation manuals I used for writing my dissertation required use of the publisher's name in the citation. I found it odd when I started using the Bluebook that it lacked this requirement. Over the years, I became accustomed to the Bluebook's odd requirements.
I think the ABA manual is correct; we should be including the publisher in legal citations. (I should note that the ALWD Citation Manual already does this.) One of the main purposes of citation is to give the reader information, and including the publisher gives the reader important information.
While we are on the topic of the Bluebook, when are the editors going to get rid of the antiquated abbreviations? (ALWD also uses the antiquated abbreviations.) I realize that people don't want to have to follow the dictates of the post office, but the two letter abbreviations for states have become standard. Why require each new generation of students to learn new abbreviations they won't use elsewhere? Isn't legal citation confusing enough? In addition, the postal abbreviations are shorter.
Sunday, November 11, 2012
The oversupply of lawyers has placed tremendous pressure on law firms to control costs in order to remain competitive and attract clients. It means that some smaller firms are starting to experiment with pricing options to attract potential clients who may not have otherwise engaged an attorney due to cost. The legal press has reported before on these so-called "kiosk" law firms (here and here) and now an Atlanta, Georgia law firm is trying its hand by opening a "Justice Cafe" where clients can "purchase" a la carte legal advice from divorce lawyers at a rate of $75.00 an hour. The lawyers will work on a contract basis, keeping half of the billed rate meaning they can earn about $55k per year based on a 30 billable hour work week. From Law.com:
Many middle-income people seeking a divorce can't afford to hire a lawyer but aren't poor enough to qualify for legal aid. Michael and Shelia Manely hope to fill this gap with a new kind of family law firm, the Justice Café.
Located a block from the Fulton County, Ga., Superior Courthouse, the Justice Café will charge $75 an hour for a la carte help in divorces and other family law matters, with no retainer up front, unlike most family law firms.
The storefront space at the corner of Martin Luther King Jr. Drive and Peachtree Street will take walk-in clients who want to handle their divorce themselves but need some guidance from a lawyer. Clients can pay for either general advice or specific tasks, such as drafting an answer to a complaint or representation at a 30-day hearing.
The typical client will engage a Justice Café lawyer for 10 or fewer hours, said Michael Manely.
"If they need more than 10 hours of help, then they probably need a full-service approach," said Manely, whose Marietta, Ga.-based practice, The Manely Firm, has specialized in full-service family law for about a decade.
Firms offering walk-in, a la carte family law services have sprung up in other parts of the country, but Manely said this is a first for Georgia.
The lawyers staffing the Justice Café will work on contract and collect half the $75 hourly fee. The other half will cover overhead. At $37.50 an hour, a lawyer billing 30 hours per week can earn an annual gross salary of about $55,000.
Continue reading here.
Hat tip to the ABA Journal blog.
One of my co-bloggers has cited an excellent article on metacognition below. Teaching metacognition has become very important in new approaches to general education and legal education. Here are some more articles on metacognition:
Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive Skills of Law Students through More Effective Formative Assessment Techniques, 40 Cap. U. L. Rev. 149 (2012).
Anthony Niedwiecki, Lawyers and Learning: A Metacognitive Approach to Legal Education, 13 Widener L. Rev. 33, 40 (2006).
Robin A. Boyle, Employing Active-Learning Techniques and Metacognition in Law School: Shifting Energy from Professor to Student, 81 U. Det. Mercy L. Rev. 1 (2003-2004).
Michael Hunter Schwartz, Teaching Law Students to Be Self-Regulated Learners, 2003 L. Rev. M.S.U.-D.C.L. 447.
Paul R. Pintrich, The Role of Metacognitive Knowledge in Learning, Teaching, and Assessing, 41 Theory into Practice 219 (2002).
It’s no surprise that for many students, thinking about the learning process is an almost foreign concept. At the Teaching Professor blog, Mary Ellen Weimer writes:
Metacognition can be a word that gets in the way of students’ understanding that this “thinking about thinking” is really about their awareness of themselves as learners. Most students don’t spend much time thinking about learning generally or how they learn specifically. In order to become independent, self-directed learners, they need to be able to “orchestrate” their learning. That’s the metaphor the National Research Council uses to describe planning for learning, monitoring it as it occurs, and then evaluating both what has been learned and how it was learned.
Professor Weimer offers suggestions on how to encourage students to think about how best they learn.