Saturday, February 4, 2012

New legal "skills" scholarship: "Does the readability of your brief affect your chance of winning an appeal?"

This one is by Professors Lance Long (Stetson) and William F. Christensen (BYU). It can be found at 12 J. App. Prac. & Process 145 (2011) and here on SSRN.  From the abstract:

The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related to the outcome of an appeal in a statistically significant manner. Our study did show, however, that the opinions of judges and justices are less readable than lawyers’ briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed. Ultimately, we conclude that readability, as determined by the Flesch Reading Ease scale, is a non-issue for legal writing at the appellate level. Although readability did not appear to be related to outcome, there was a statistically significant relationship between the readability of the courts’ majority and dissenting opinions. Dissenting opinions are decidedly less readable than majority opinions.


February 4, 2012 | Permalink | Comments (0)

Tips to Avoid Tax Scams

North Dakota Attorney General Wayne Stenehjem`s Consumer Protection and Antitrust Division   has offered advice on avoiding Tax scams. Here  are some excerpts:

Taxpayers should be very careful when choosing tax preparers. While most preparers provide good service, a few unscrupulous tax preparers file fraudulent tax returns and ultimately defraud their clients. Here are some tips to consider before hiring a tax preparer:

- Get referrals from satisfied clients.
- Ask the preparer about their training, experience, and current knowledge of tax law.
- Find out whether the preparer has ever represented taxpayers in an audit, or has ever been denied eligibility to do so.
- Consider whether the individual or firm will be around to answer questions about the preparation of the tax return months or even years after the return has been filed.

Be sure to watch for any signs that the preparer may be less than honest. Some of the most common signs are:

- Claiming that they can obtain larger refunds than other preparers.
- Basing their fee on a percentage of the amount of the refund. Fees should be based on the complexity of the return, never on the size of the tax savings or refund.
- Claiming they can get you immediate payment of your return. Keep in mind that this is a loan (refund anticipation loan).
- Refusing to sign the tax return or provide a copy for your records. Always make sure you have something in hand that shows proof of what transpired and you should have a receipt for services rendered.

Refund anticipation loans (RAL) have become very popular with consumers, but there are some things you should consider before deciding to take this path. Refund anticipations loans allow you to spend today what you figure the government owes for your income tax refund. More importantly, the fee you pay to get the loan is typically $30 to $125. This fee, if compared to or calculated as "interest," would constitute as much as 500% "interest" per year!

It is important to get a copy for your record once the return is completed and never sign a blank tax form or one that is filled out in pencil.

Here are two basic rules to remember to help you avoid tax scams:

1) The IRS never sends unsolicited e-mails.

2) The IRS never requests passwords, PINs, or other secret access information for bank or credit card accounts.


February 4, 2012 | Permalink | Comments (1)

Friday, February 3, 2012

Brief writing advice from a federal judge: "Don't turn a phrase, just get to the point"

From Legal Blog Watch comes this story about a California case in which attorneys sought sanctions against government lawyers for allegedly failing to preserve key documents. Rather than grant the requested sanctions, the presiding federal district court judge instead turned it around on counsel for the moving parties by admonishing them for their hyperbolic writing.  The underlying case involves a suit by the Federal Deposit Insurance Corp. against two former banking executives for IndyMac. Legal Blog Watch takes it from there.

In the course of defending themselves against the FDIC, the IndyMac executives aggressively attacked the FDIC for its failure to preserve certain documents. In court papers seeking sanctions, counsel for the defendants accused the agency of a "stunning display of incompetence" for failing to preserve documents. "The breadth and depth of the government's document-retention failures are staggering, and violations of this magnitude rarely occur," they argued. "It is a stunning display of incompetence from an agency that is supposed to be the expert at seizing and managing banks."

On Jan. 30, Central District of California Judge Dale Fischer held a hearing on the defendants' motion seeking sanctions, dismissal of certain counts of the lawsuit and an adverse instruction to the jury based on the government's failure to preserve evidence. As reflected in this transcript of the hearing, Fischer was not all pleased with the exaggerated rhetoric employed by counsel for the IndyMac executives. The judge stated:

... I also want to tell you, I don't know why lawyers do this, and there's a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they're somewhat annoying. I don't have time for rhetoric. I'm really, really busy.

After an aside in which she wondered why anyone would even want her job of federal judge, the court further scolded defense counsel on their approach to the matter, adding

I don't know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I've ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn't he get to the point. So, please, in future pleadings, remember that.

Returning her attention again to the specific rhetoric in defendants' brief, the judge offered a reminder to counsel that "I've been around awhile both in practice and on the bench, so I suspect I've seen a few more cases than you, and really, it's not all that staggering and it's not all that great a magnitude, so when your experience and mine differ, it just takes all of the punch out of those comments."

Bottom line: After scolding counsel for a bit in the hearing, Fischer denied the defendants' motion.

The story came to the attention of the Legal Blog Watch via the blog The D&O Diary.


February 3, 2012 | Permalink | Comments (0)

Most Federal Judges Explicitly Bar Jurors From Using Social Media to Discuss Cases

The vast majority of federal district judges expressly prohibit jurors from using social media to discuss the trial in which they are involved, the Administrative Office of the U.S. Courts, announcing the results of a study conducted by the Federal Judicial Center, said Jan. 24.

Communication of case-specific information by way of social media is very infrequently detected: Only 30 of the 508 responding judges say they have actually detected social media use by jurors. Nevertheless, about 94 percent of the 508 judges who responded to the survey have implemented measures to ensure jurors do not use social media in the courtroom, FJC reported.

The article from U.S. Law Week online describes the methods that judges  use to restrict social media  that is related to a case.


February 3, 2012 | Permalink | Comments (0)

Disbarment warning: Don't ignore the 7th Circuit's orders (or any other court's, for that matter)

In a per curiam opinion leaving no doubt about the court’s fury, the Seventh Circuit has disbarred a lawyer for abandoning a client in a criminal case and repeatedly ignoring the court’s orders in the case. An excerpt:

     She is unfit to practice law in this court. Abandonment of a client in a criminal case is reprehensible. Ignoring orders entered by a court is inexcusable. We have disbarred lawyers in similar circumstances. See, e.g., In re Riggs, 240 F.3d 668 (7th Cir. 2001). That is the appropriate step here too. Boyle-Saxton is disbarred. She is further ordered to refund to Rodriguez all fees she may have been paid for handling this appeal, and to provide the court within 21 days evidence that this has been done.

    Failure to do so will be treated as contempt of court. The court will send copies of this opinion to the Office of Lawyer Regulation of the Wisconsin Supreme Court, and to the clerks of each district court within the circuit. Boyle-Saxton must send a copy to any other jurisdiction in which she may be licensed to practice law.

In Re: Bridget Boyle-Saxton, No. 12-2, slip op. (7th Cir. Feb. 2, 2012).


February 3, 2012 | Permalink | Comments (0)

House Committee Proceedings – Live Streaming on Web

The Library of Congress has launched a new legislative transparency service and will host live video-streaming of House committee proceedings.  The public can access the website here.  The site is organized by committee, making it very easy to get to the proceedings that may be of interest.

For more information, see the Committee on House Administration press release here.

“In addition to the live webcasts, the LOC will start archiving previous committee proceedings – creating the first one-stop shop for House committee video content.”

Hat tip AALL (@aallnet)


February 3, 2012 | Permalink | Comments (0)

Thursday, February 2, 2012

Wegner on the Visible and the Invisible (Wegner 3)

In her article Reframing Legal Education’s "Wicked Problems," which I have been discussing this week, Professor Wegner emphasizes the importance of both the visible and the invisible. The visible includes things like "How many hours should each first year subject receive? Isn‘t there need for additional advanced offerings in xxx (pick your subject area) since there is so much important and sophisticated work being done in that field?"

An important invisible dimension is student learning and the recent, profound developments in learning sciences. One area concerns expertise. "The development of expertise has been studied across a myriad of fields ranging from chess players to historians to educators. Experts are typically those who possess both the know what and the know how that allows them to demonstrate great skills in solving problems in a particular domain. The movement from novice to expert is a journey that occurs in the context of many domains. " "Experts notice patterns not seen by novices. They possess a great deal of content knowledge, and organize or chunk that knowledge in ways that reflect deep understanding. Expert knowledge develops in context through experience with myriad scenarios, and becomes deeply internalized so relevant insights can be retrieved with relatively little conscious effort. Tacit learning (including observation, imitation, and experience) is important in the development of expertise, since expertise is characterized by much more than book learning. Expertise develops in stages, from initial acclimation through competence, to proficiency and excellence. Experience in working with poorly defined problems is essential to developing expertise."

(I should add here that Daniel Kahneman has written similarly about expertise in his book Thinking, Fast and Slow. For example, he declares, "what we consider as ‘expertise’ usually takes a long time to develop. The acquisition of expertise in complex tasks such as high-level chess, professional basketball or firefighting is intricate and slow because expertise in a domain is not a single skill but rather a large collection of miniskills." p. 238. Professor Kahneman notes that it takes thousands of hours to develop expertise.)

A second invisible dimension is assessment. "There are generally two types of assessment, summative assessment and formative assessment. Summative assessment involves a snapshot judgment of what a student knows at a particular time and is often used as a tool to evaluate where a student stands in terms of achieving ultimate educational objectives or where the student stands with respect to others." Summative assessment is common in law school (the typical law school exam). "Formative assessment on the other hand is designed to provide feedback and guide students to improve and learn further, based on feedback that enhances their capacity to build on what they know and address areas of misunderstanding." While Wegner considers formative assessment rare in law school, she mentions the process method of teaching legal research. (I would also add how most legal writing teachers teach their students.) She adds, "Too often assessment is seen as the end of the story, when in fact, it provides a means of continuing improvement." (I would like to add that the best way to learn is to learn from your mistakes. Formative assessment allows students to do this.)

Finally, she mentions the three apprenticeships–"to ‘think and know,’ ‘do and act,’ and ‘believe and be’ while wrapping these dimensions into a meaningful whole."

"The first cognitive apprenticeship focuses on developing students' thinking skills in the specific context of legal materials and law-related content. It has both a knowledge context and an epistemological character. In short, students must learn what counts by way of knowledge, and how to construct knowledge for themselves within this particular field. The cognitive. apprenticeship fits exceptionally well with the case-dialogue method and with legal education‘s place in the academy."

"The second apprenticeship of skill and practice focuses on developing students‘ abilities to understand and intervene in particular contexts and to perform as expert professionals responsible for the well-being of others. The second apprenticeship is one that law schools have approached in a patchwork fashion, adding skills courses, externships and clinical opportunities over the years. . . . In short, legal education has not really embraced the need for students to learn to do and act or appreciated the ways in which doing and acting are powerful means to fuel learning of substance itself. "

"The third apprenticeship of identity and purpose concerns the development of students' appreciation for professional roles, possibly conflicting dimensions of those roles, ethical obligations, and individual meaning derived by professionals from the work they do. This apprenticeship is the one that seems most absent and least well understood within the legal education universe of today."

I agree with Wegner on her evaluation of the three apprenticeships. Law schools teach the first one well. Law schools do the second one some, but they could do it better. Finally, law schools do a poor job in developing students’ professionalism.

(Scott Fruehwald)

February 2, 2012 | Permalink | Comments (0)

Links to the new complaints filed against 12 more law schools

Surely you've heard the firm that previously sued NYLS and Thomas Cooley School of Law in 2011 for allegedly misleading students about job prospects has just filed lawsuits against 12 more schools.  (A different firm filed a similar lawsuit against Thomas Jefferson School of Law back in May, 2011). Below are links to the 14 total complaints filed by the Law Offices of David Anziska.

Albany Law School

Brooklyn Law School

California Western



Florida Coastal

Golden Gate


John Marshall (Chicago)

New York Law School

San Francisco (no link provided by firm)


Thomas M. Cooley


According to the firm's website, it's looking to sue Baltimore, Pace, and St. John's next.


February 2, 2012 | Permalink | Comments (0)

New legal "skills" scholarship: "'Impact' in 3D - Maximizing Impact Through Transactional Clinics"

By U. Penn Law Professor Praveen Kosuri and available at 18 Clinical L. Rev. 1 (Fall 2011) or from SSRN here.  From the abstract:

In speaking about “impact” clinical legal education, it is almost always exclusively as litigation -innocence projects, representing Guantanamo detainees, human rights concerns, environmental issues. Though these clinical efforts target different societal ills, all try to use the legal system as a catalyst for change. Rarely do clinicians invoke the word “impact” in the same manner in discussing transactional legal work much less transactional clinics. Yet transactional clinics can and do perform impact work. This article describes the current landscape of transactional clinics, the distinct evolution of community economic development clinics from small business and organizations clinics and argues that both can expand their vision of impact and employ new strategies to affect change. The article discusses the importance of clinic design in assuring that impact work is not undertaken at the expense of students’ educations. It argues that clinic design is comprised of three separate dimensions - service, skills development, and pedagogy - each of which influences and is influenced by the type of work that a clinic undertakes. The article suggests that clinicians should deliberately assess each dimension in determining its effect by an impact strategy. The article concludes by describing particular impact strategies the author employs in the clinic he directs, the strengths and weaknesses of such strategies, and encourages transactional clinicians to expand their conception of “impact” transactional work.


February 2, 2012 | Permalink | Comments (0)

Ethics for Cloud Computing

The changing technological world continues to create new questions of legal ethics. The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has produced a detailed 20-page ethics opinion on the subject. Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property.  It examines the state of the law on the use of cloud computing for storage of potentially sensitive documents and data.

The Disciplinary Board of the Supreme Court of Pennsylvania offers this description of the report:

The opinion quotes with approval a definition of “cloud computing” as “a fancy way of saying stuff’s not on your computer.[1]” Forms of cloud computing considered by the Committee include web-based email, online data storage, software-as-a-service (“SaaS”), platform-as-a-service (“PaaS”), infrastructure-as-a-service (“IaaS”), Amazon Elastic Cloud Compute (“Amazon EC2”), and Google Docs.[2]

The opinion sets forth an extensive discussion of both the benefits and risks of off-site data storage and access both from computers and portable devices such as smart phones. It includes examination of ethics opinions and other resources both from Pennsylvania and national sources discussing this and related issues. Those looking for practical advice should pay particular attention to pages 8 through 10, in which the Committee provides a long list of specific precautions and questions to ask in the development of an office’s data storage practices. The Committee also discusses the risks and precautions necessary in the use of web-based email services.


February 2, 2012 | Permalink | Comments (1)

Wednesday, February 1, 2012

Four Lessons for Wrangling with "Wicked Problems" in Legal Education (Wegner 2)

In my last post, I gave the abstract to Judith Wegner’s important article Reframing Legal Education’s "Wicked Problems." In this post, I will discuss her conception of the problems in reforming legal education and her four lessons for wrangling with "wicked problems" in educational reform.

Wegner views several barriers to reform, including 1) "There is no generally accepted definition of the problems faced," 2) "There‘s no stopping rule for reform since there are so many interrelated questions that one can never be done, only exhausted for the moment," 3) "Solutions tend to be better or worse, rather than true or false, despite the tendency of many to wish for confirming evidence before acting," 4) "Every one-shot reform affects other dynamics within an ever-changing educational institution," 5) "There is not a set of standard solutions that takes into account the unique characteristics of individual schools," 6) there are many stakeholders ((alumni with different experiences in school and beyond; faculty; students (current and prospective); administrators; accreditors; bar examiners; bar leaders; funders; university leaders; trustees; and legislatures)), 7) "There is no standard nomenclature or understanding about what actually happens in various classrooms, how courses are best designed,. what happens in clinics or internships, what demands various types of future careers place on law graduates, or how prior experiences shape students' approaches to learning during law school," 8) there is a great deal of technical complexity," 9) "Law faculty members generally lack formal education about assessment and its importance," 10) "There is relatively limited meaningful assessment of student performance in individual classes," and 11) Rigorous institutional analysis of programs or overall trends is episodic at best.

Next, Wegner discusses four lessons for with dealing with these problems. First, learn about the commonplace. "Understanding core issues facing professionals can provide important grounding for educational reform undertakings. Understanding core strategies used by educators in a range of professional fields provides a range of best practices. that reach beyond legal education and are worth consideration as a result."

Second, problems (and their resolutions) involve both visible and invisible forces, and both need to be understood. "The lesson here is to pay close attention to all the dynamics that affect education, including those we take for granted. Approaches to teaching, learning, and assessment (what is and is not done) are central to the future of legal education, and must be better understood."

Third, remember the power of naming. "Legal education has embraced the notion that teaching students to think like lawyers is its principal claim to fame. However, it needs to delve deeper to appreciate what animates that powerful articulation of its purposes. In addition, the Socratic method has been cast as a bête noir within legal education. Recasting and explaining this pedagogical approach more clearly can help law faculty do a better job of developing critical thinking skills in the first year."

Finally, considering renegotiating when you hit a dead end. "Legal education reformers should likewise bear in mind that renegotiation strategies may prove essential to curriculum reform. Among other things, it is important to explore a key dichotomy (between theory and practice) in order to appreciate this reform."

Wegner’s four lessons are basically saying that we should stopping being entrenched in our worn-out ideas and try to think outside the box. As Daniel Kahneman has recently demonstrated in his book, Thinking, Fast and Slow, our unconscious, automatic methods of thinking (system 1) make it difficult for humans to do complex rational thinking (system 2). However, we can do better by dealing with problems slowly and deeply (becoming engaged thinkers), recognizing our prejudices, avoiding distractions, developing better problem solving methods, and working together. We need legal education reform. Our students are worth it.

(Scott Fruehwald)


February 1, 2012 | Permalink | Comments (1)

"Vast majority" of federal judges ban jurors from using social media

The Administrative Office of the U.S. Courts has recently announced the results of a study conducted by the Federal Judicial Center in which it found that the "vast majority" of federal judges expressly prohibit jurors from using social media to discuss the cases they are deliberating over. The BNA Electronic Commerce and Law Report has a summary of the report here (subscription required). Among the findings:

Communication of case-specific information by way of social media [among jurors] is very infrequently detected: Only 30 of the 508 responding judges say they have actually detected social media use by jurors. Nevertheless, about 94 percent of the 508 judges who responded to the survey have implemented measures to ensure jurors do not use social media in the courtroom.
The strategies used by judges to restrict case-related social media communications include:
• Use of model jury instructions. The U.S. Judicial Conference's model jury instructions distributed to judges in January 2010 address jurors' use of electronic technologies to research or communicate about a case. Sixty percent of responding judges said that they have actually used the model jury instructions during a trial. The majority of the judges who have used the model have instructed the jury on the issue both before trial begins and again before deliberations.
• Use of other jury instructions. Of the judges who have not used the model jury instructions, the majority used a different set of instructions that addressed the use of e-technology by jurors, either instructions provided by their circuit, their court, or instructions they had written themselves.
• Reminders to jurors. Federal judges reported using various other approaches in an effort to prevent misuse of social media by jurors, including informing jurors at voir dire and reminding them throughout the trial or deliberations about the social media policy, asking jurors to sign formal statements of compliance with the social media policy, and posting notices of the social media policy in jury assembly and deliberation rooms.
• Confiscating e-devices in the courtroom. Approximately one quarter of the responding judges said that they confiscate jurors' cell phones and other electronic devices, with 22 percent of judges doing so at the start of each day of trial and 29 percent doing so during deliberations.

Social Media: Rarely Used or Rarely Detected?

Of the 30 judges who have detected juror use of social media during trials and deliberations, 93 percent have encountered the practice in only one or two trials.
Reported forms of social media use by jurors include Facebook, Twitter, instant messaging services, and internet chat rooms.
Judges reported encountering social media use by jurors more during trials (23 judges reported at least one instance) than during deliberations (12 judges reported at least one instance), and more during criminal trials (22 judges reported at least one instance) than during civil trials (5 judges reported at least one instance).
Reported social media misbehavior by jurors included:
• “friending” or attempted “friending” of participants in the case;
• communication or attempted communication directly with participants in the case;
• posting of information about deliberations;
• performing case-related research;
• sharing general trial information such as the progress of the case; and
• allowing another person to listen to live testimony.
Judges acknowledged that it is difficult to detect jurors' inappropriate use of social media. Judges recounted learning of an incident when reported by another juror, an attorney, court staff, or a party or when the issue came up in post-trial motions or interviews. Only two judges said that they directly observed a juror's use of social media.
Action by judges who have learned of jurors using social media in their courtrooms ranged from cautioning the juror to declaring a mistrial.

February 1, 2012 | Permalink | Comments (0)

Groundhog Day Litigation

"This is one time where television really fails to capture the true excitement of a large squirrel predicting the weather." - Bill Murray in Groundhog Day

Happy Groundhog Day to all! 
    In 1995, the movie was the subject of litigation. Author Leon Arden brought an unsuccessful copyright infringement suit arguing that in his novel, “One Fine Day,” a man lived the same day over and over, as was the case in the movie. The federal district court granted summary judgment to Columbia Pictures. Here is an excerpt from the opinion:

Defendants' motion is granted, for no reasonable jury could find that the two works are substantially similar within the meaning of the copyright laws. Indeed, the copyright laws do not protect ideas, but only particular expressions of ideas. Although the Novel and the Film are based on the same idea, a man trapped in a day that repeats itself over and over, the two works express that idea in very different ways. The Novel is dark and introspective, featuring witchcraft and an encounter with God. It is marked, for example, by an explosion on an airplane that kills 192 people, the rape of one young woman, and the suicide of another. These tragic events recur as the day repeats itself over and over again. In contrast, the Film is essentially a romantic comedy about an arrogant, self-centered man who evolves into a sensitive, caring person who, for example, in his repeating day, saves a boy falling out of a tree, changes a flat tire for several elderly women, and learns to play the piano. Any similarities between the Novel and the Film relate only to unprotectible ideas, concepts, or abstractions. Accordingly, the complaint is dismissed.

Arden v. Columbia Pictures, Inc., 908 F. Supp. 1248 (1995)

The book sounds unattractive. The Amazon website offers no customer reviews. You can buy a used copy for .02 cents.


February 1, 2012 | Permalink | Comments (0)

Teaching Lawyering Skills with Classic Films

Kudos to Kelly Lynn Anders (Creighton University Law School) for her book, “Advocacy to Zealousness: Learning Lawyering Skills from Classic Films” (Carolina Academic Press). The book lists 26 skills that each lawyer should develop. In addition to offering a brief discussion of the skill, the book summarizes a film associated with the skill. It then offers discussion questions about the film and a list of brief exercises that the reader can use to improve on the skills.

Here are a few examples of skills and the movies that the book pairs with them:

Questioning: Inherit the Wind

Loyalty: The Paradine Case

Empathy: Gentleman’s Agreement

Compassion: To Kill a Mockingbird

Versatility: The Man who Shot Liberty Valance

 This is a very creative book and a boon to those of us who are addicted to Turner Classic Movies.


February 1, 2012 | Permalink | Comments (2)

Appellate Lawyering – Bibliography of Articles

This bibliography at Circuit Splits is a useful list of resources about appellate lawyering.   

“A lot has been written about the practice of appellate law. From David Frederick's "Art of Oral Advocacy" to Chief Judge Alex Kozinski's "The Wrong Stuff," the following articles offer a broad range of commentary on the art, science, practice, or whatever you want to call it, of appellate law. “

Check out the list and if you have any to add, leave a comment.

You can follow Circuit Splits at (@CircuitSplits).


February 1, 2012 | Permalink | Comments (1)

Wegner on Reframing Legal Education

A few days ago, one of my co-bloggers reported on an interview with David Segel, who has been a frequent critic of the current state of legal education. His conclusion was "that despite predictions of a revolution in legal education, he thinks that the "business" of educating lawyers will remain essentially the same, although some schools may eventually have to lower admission standards to fill all the seats." I strongly disagree with Segel, but I have to admit that changing legal education will not be easy.

Judith Wegner has published an important article concerning why change is difficult in law schools. Reframing Legal Education’s "Wicked Problems"

Abstract: "The essay, by one of the authors of Educating Lawyers (the "Carnegie Report") offers fresh insights as to why legal education reform is so difficult, drawing upon the theory of "wicked problems" increasingly used in public policy, engineering and a variety of other fields. It demonstrates the application of that theory with reference to the oft-told tale of Rumpelstiltskin, and draws from that tale key lessons that can be used by those seeking to create a new prospectus for legal education in coming years. It then illuminates four "wicked problems" that have plagued legal education for years: how responsibility should be allocated for lawyer preparation; why change in content alone does not result in enduring improvements in legal education; whether "thinking like a lawyer" has a continuing place in legal education; and how the upper division can be fruitfully improved. In illuminating these problems, it also offers suggestions for how they might be approached and resolved.

After providing background on the characteristics of "wicked problems" and how they can best be approached, the essay focuses on "commonplaces" that underlie professional work and accordingly should drive professional education (including legal education), thereby providing a fresh framework for actionable steps to improve legal education and the practice of law. It next discusses the need to attend both to visible and invisible dimensions of problems in order to shape meaningful solutions and explains the importance of often unrecognized dynamics of learning and teaching as major forces that play crucial roles in legal education and curriculum reform.

The essay then discusses the power of naming, offering an in-depth look at the nuances of "thinking like a lawyer" as understood by students and faculty members interviewed at sixteen diverse law schools in connection with the site visits that informed the Carnegie Report. It stresses the specific ways that first year case-dialogue instruction forces students to deal with uncertainty, one of the critical dimensions of professional practice, and unpacks the notion of "thinking like a lawyer" in ways that should prove illuminating for students and helpful for faculty members who seek to help students understand the resulting changes in epistemology that are so central to the first year of law school. It also considers the nature of the "case-dialogue method" and explains the ways in which that classic teaching technique plays a critical role in building studentsabilities to think analytically.

Finally, the essay considers one of legal education’s most intransigent "wicked problems": the upper division curriculum. Using insights from the theory of "wicked problems," the essay endeavors to explain why upper division curriculum reform is so difficult. It then offers four strategies for "renegotiating" existing assumptions and practices in order to improve the upper division curriculum. These strategies (including purposeful redesign on the large scale, rethinking content, rethinking pedagogy, and re-balancing teaching and learning responsibilities) each of which are very likely need to be used in concert in order for meaningful improvements to occur. In particular, this portion of the essay incorporates insights from educational psychology and work on professional identity development in graduate students to stress the ways in which effective advanced curricular innovations should attend to the challenges faced by the current generation of students who, much more than those in past decades, face challenges in navigating changes in personal identity at the same time they confront the need to develop a sense of professional identity before leaving law school."

Because Wegner's article is so important, I will be devoting several posts to it.

(Scott Fruehwald)

February 1, 2012 | Permalink | Comments (1)

Tuesday, January 31, 2012

Book recommendations to improve your public speaking skills

Moot court season is just around the bend.  If your students are looking for some book recommendations addressing basic public speaking skills to help them with oral arguments, consider this list from

13 Books to Polish Your Speaking Skills

No matter how many times you do it, public speaking is always a little nerve-wracking. While you may not be able to ever remove all the butterflies, you can help make yourself more confident and capable when it comes to speaking to an audience, whether it's in a boardroom or in a college classroom. A combination of practice and education on public speaking may be just what you need to give you those qualities and while we can't provide the practice — that's up to you — we can provide some books that are essential reads for polishing your speaking skills. Read through this list to find amazing books on speaking, offering advice, information, and research that can help make public speaking a much less dreaded occurrence.

  1. Public Speaking for Success by Dale Carnegie

    First published in 1926, this book by Dale Carnegie is one of the most widely-read and well-respected books on public speaking ever written. While updated and revised to meet the needs of modern-day public speakers, the advice at the heart of this book stands as true today as it did when it was written, more than 85 years ago.

  2. The Art of Public Speaking with Connect Lucas by Stephen E. Lucas

    Often used in communications and speaking courses in college, this textbook can help anyone looking to hone their skills. Readers will find explanations of contemporary theory as well as ways these theories and ideas can be applied in real life.

  3. Thank You for Arguing: What Aristotle, Lincoln, and Homer Simpson Can Teach Us About the Art of Persuasion by Jay Heinrichs

    A big part of speaking in any situation is being able to sway your listeners toward your point of view. In this book, you'll learn about the strategies employed by some of the world's most renowned speakers (Cicero and Winston Churchill, to name a couple), as well as a wealth of modern techniques you can apply to be a more persuasive speaker.

  4. An Actor Prepares by Constantin Stanislavski

    A book on acting to help you with public speaking? It makes more sense than you might think. After all, no one has to do more public speaking than actors. Crack this book to learn the methods Stanislavski uses not only to act but also to emote, communicate, and be engaging on the stage and off.

  5. Confessions of a Public Speaker by Scott Berkun:

    Professional speaker Scott Berkun shares his techniques for great public speaking in this must-read book, offering practical advice, engaging stories, and even a few tales of public speaking gone wrong.

  6. Enchantment: The Art of Changing Hearts, Minds, and Actions by Guy Kawasaki

    The best speakers know how to enchant their audiences, and in this book by business guru Guy Kawasaki you'll learn what ingredients go into creating the perfect recipe for maximum enchantme

Check out the other recommendations here.


January 31, 2012 | Permalink | Comments (0)

Why law students should take more skills courses

From the Lawyerist blog:

Law Students Should Take Practical Skill Classes

99% of lawyer skills are learned after law school

That’s a pretty common statistic thrown out by practicing attorneys. I don’t think the percentage is accurate, but I do think the concept is spot on. Substantive law classes don’t teach you how to talk to a client, file anything with a court, deal with opposing counsel, etc. Finding the right mentor can help you acquire those skills after law school, but would’t you rather have at least some baseline knowledge?

Like anything else, law-talking skills get better with practice and experience. It’s not realistic to walk out of law school with the same legal skills as someone who has been practicing for years. At the same time, there is a big difference between a law school graduate who has focused on acquiring practical skills during law school versus the graduate who only took substantive classes. By most accounts, the former is more highly regarded than the latter. If you only need to learn 92% of your skills after law school, you are ahead of the pack.

Practical skill classes are more work, more instructive, and more fun

In early January, I was one of eight adjunct instructors for a one-week, 40-hour intensive practical skills class at a local law school. The class was one giant simulation that involved researching, negotiating, and drafting a complicated business deal between two parties. By all accounts, the class was an overwhelming success. Many of the students said it was the most work they had ever put into a class. Many students also said it was their best law school experience to date.

For one, law students get to walk and talk like a lawyer in most practical skills class. That is far cry from reading and regurgitating case law. Two, practical skill classes are designed around teaching skills to law students, not just teaching the substantive law of a particular area. Practical skills translate across all areas of law, whereas substantive knowledge is more restricted.

Three, practical simulations are usually pretty fun for law students. Some of the simulations are more daunting than others, but it is a chance to experiment in the sandbox. Do you really want your first “real” deposition to be your first deposition? Lastly, most practical skills classes are taught by, or heavily involve adjunct professors. They might not tenured faculty, but they are practicing attorneys willing to pass on their practical knowledge. Don’t underestimate the value of that.

Next semester, take a pass on Con Law Part Four, and take a practical skills class. You might even like it.


January 31, 2012 | Permalink | Comments (0)

Frequency of Words in the Republican Debates

From an article by Richard and  Karen Gift in Columbia University’s Teachers College Record (as of  November 18):

In the eight GOP debates so far this year, the term “education” or “educational” has been invoked just 64 times—a number dwarfed by terms like “regulation” (70 times), “kill” (78 times), “Reagan” (82 times), “energy” (107 times), “illegal” (109 times), “Washington” (124 times), “Obamacare” (125 times), “border” (128 times), the number “9” (382 times), and “job” (471 times). In the most recent debate in Rochester, MI, education was mentioned only 11 times—8 of which were in the context of getting Uncle Sam out of education altogether.

 What does the word count tell us about national priorities?



January 31, 2012 | Permalink | Comments (0)

LexisNexis – Social Media Visibility Service

LexisNexis unveiled this new service at the LegalTech Conference today.  See the press release here.

This new service is aimed at helping:
“solo practitioners and lawyers at smaller law firms to establish a solid, comprehensive, and manageable social media presence. The service includes creation of an exclusive blog page as well as guidance and assistance in crafting profiles and in generating and posting appropriate content on major social sites, including Facebook®, Twitter® and LinkedIn®. By leveraging social media more effectively, lawyers and firms are better able to demonstrate thought leadership, extend the reach of their websites, improve site performance on search engines, and engage prospective clients via popular interactive communities.”

Do you talk about using social media with your students? 


January 31, 2012 | Permalink | Comments (0)