January 30, 2012
A Legal Skills Success Story
Beth A. Tomerlin has written a success story concerning the effect of new legal educational approaches on young attorneys. The Practicality of Practicums: Thinking and Acting Like a Lawyer, One Class at a Time
"During my first few weeks at a civil litigation firm, fresh out of law school, I was asked to fill in for another attorney in the middle of a month-long deposition of a plaintiff in a lengthy case. This was incredibly intimidating, but I had an understanding of how to prepare, what to expect, and how to interact with the various parties in the room, thanks to a course I had taken while at the University of Denver Sturm College of Law.
That course, the Discovery Practicum, differed drastically from other traditional law school classes. As the name implies, the course focused exclusively on discovery rules, and we did not learn simply about the rules and the theory of discovery, we actually engaged in discovery. There was not a lecture component to the practicum; instead, students interacted with Prof. David Thomson, the materials, and each other. This provided the backdrop for students to fully engage with the law and facts of the case as one would in practice.
I believe courses like the Discovery Practicum will drastically change how law students understand law and procedure and will actually provide them with the skills necessary to practice law. After the Discovery Practicum, I felt I understood the basics of litigation and that I was armed with the skills to effectively begin my career. . . .
I was fortunate to attend a law school that provided a curriculum that was balanced between theory and practice. At DU Law, I found there were numerous opportunities to participate in a clinic or externship, and the law school offered practicum courses that mirrored the practice of law. . . .Law school may not have prepared me for every step, but my experience in the practicum certainly made those early steps a lot easier. I graduated from law school not only learning how to 'think like a lawyer' but also with a set of tools and skills to actually be a lawyer."
You can read the rest of the article here or in the Denver Bar Association: The Docket (February 2012).
Big firm partners are doing well. Associates? Not so much
From the Wall Street Journal:
Law firms are finally starting to recover from the recession, but they aren't taking their young lawyers along for the ride.
Even as profits return, cautious partners with one eye on damaged balance sheets and the other on stingy clients plan to hang onto the lean silhouettes they acquired during the downturn.
That means little relief for young associates—who took on hefty law-school loans, only to run into layoffs and stagnant pay in the years since 2008—and fewer chances for new law-school graduates to get in on the ground floor. And the elusive brass ring of partnership has grown more remote.
"What happens if Greece falls apart again?" says Greg Nitzkowski, managing partner at Paul Hastings LLP, an international firm that has reduced entry-level hires by about a third since 2008. "We just think it's prudent to plan as if this coming year is going to be a relatively flat year.…We're not planning for a big upsurge in demand."
Conditions at law firms have stabilized since 2009, when the legal industry shed 41,900 positions, according to the Labor Department. Cuts were more moderate last year, with some 2,700 positions eliminated, and recruiters report more opportunities for experienced midlevel associates.
But many elite firms have shrunk their ranks of entry-level lawyers by as much as half from 2008, when market turmoil was at its peak. Salaries and bonuses for those associates have remained generally flat. Meanwhile, a degree at a top law school can cost $100,000 or more.
Associates at prominent law firms say some of their peers hired during the boom years are happy just to have jobs at all. "The world has changed," says a senior associate at a top firm.
During the downturn some firms pared associate ranks through layoffs and by delaying start dates for fresh law-school graduates. And many firms for routine tasks now use less-expensive alternatives to young associates, such as contract attorneys and outsourcing firms.
"Law firms basically focused a lot of head-count reductions during the recession on associate ranks, says Dan DiPietro, chairman of Citi Private Bank's law-firm group. "They feel like the associate ranks are where they want them to be."
White & Case LLP, an international law firm, plans to hire about 60 entry-level lawyers this year, compared with prerecession classes of 90 to 100.
"The efficiency of law practice has just changed dramatically in the past five years," says Bill Dantzler, a hiring partner and head of the firm's tax practice. "We don't have to have these armies of young associates. It's good for the clients, it's good for everybody."
That means reputable firms can be even more picky about whom they hire. While firms still compete for the highest-ranking graduates from Ivy League and other top law schools, it is a different story for solid candidates who lack gold-plated résumés. Students with lower class rankings or from second-tier schools who once would have made the cut "wouldn't have a prayer of getting in now," Mr. Dantzler says.
For those who do land jobs at big law firms, the hours remain grueling. In 2010 associates at firms with more than 700 lawyers billed an average of 1,859 hours—the equivalent of more than seven hours a day—according to the National Association for Law Placement.
As head counts fell, the average workload for those associates has risen 2.3% since 2007, or about 50 extra hours a year.
And the road to partnership is longer and more uncertain than in the past. Many lawyers now toil eight or even 10 years before being chosen. A decade ago, the most common partnership track took seven years. Other firms have thinned their top ranks of partners who didn't bring in enough business, making it even tougher to elbow into a spot.
Partners at several large law firms also say they don't plan to raise associate salaries, which haven't increased since 2007. December bonuses remained roughly the same as in 2010, with first-year associates at elite firms such as Cravath, Swaine & Moore LLP and Weil, Gotshal & Manges LLP getting $7,500. The most senior associates received bonuses of $37,500 to $42,500.
"Most firms are hesitant to lock themselves into something they can't sustain," says Paula Alvary of consulting firm Hoffman Alvary. "While there is clear evidence that work levels are returning, they're not at prerecession levels for most firms."
Still, many people continue to pursue law as a career, not least because the median starting salary for entry-level lawyers at top New York firms is $160,000. That is nearly double the going rate in 1996, before the tech boom drove salaries skyward.
And phones are ringing again at law-firm recruiters. Junior lawyers who once clung white-knuckled to their jobs are loosening their grips and moving to corporations' law departments or to law firms where they might have better shots at making partner.
Eric Fishman in 2010 took what many colleagues then saw as a huge risk when he left one of New York's elite practices for midsize Pryor Cashman LLP, where he hoped to get more experience running cases and building a practice.
"There was little chance many of my peers would have considered a move from a big law firm at that time," says Mr. Fishman, now a senior associate at the respected firm. "Now they're less fearful; the economy is getting better."
But the pace of such movement isn't what it was. Before the downturn, firms lost between 25% to 30% of their associates after a few years, people in the industry say. R. Bruce McLean, chairman of Akin Gump Strauss Hauer & Feld LLP, says the attrition rate at his firm is around 15% now.
"It's like lots of things in our economy," he says. "The outlook is brighter, the anxiety level is diminished, but it's not completely gone.…This is still a period of anxiety for our entire associate population. This is not what they anticipated when they started law school."
Should a middle-aged professional go to law school?
From the ABA Journal blog:
A woman who describes herself as a middle-aged, midcareer government relations professional is thinking about a career change.
The woman tells the Careerist she is going through career counseling and is thinking about becoming a lawyer with a focus on public service law. The blog asked two experts for advice. Both urged the woman to interview lawyers who did the same thing. And both urged caution.
Marilyn Tucker, director of alumni career services at Georgetown Law Center, says some federal agencies have law related-positions that don’t require law degrees. “Ask yourself whether a law degree is really necessary for what you want to do. Is it worth the cost?” Tucker advises. “Keep in mind that you will likely make less as a junior public interest lawyer than what you are currently making.” Tucker also warns that going to law school at this stage is risky, and “age discrimination is definitely out there.”
Recruiter Dan Binstock of Garrison & Sisson says the woman may be a good candidate for an evening program at a law school. “Don't quit your day job, in case you don't like law school,” he says. “If you have enough money saved up and your debt will not be overwhelming, going to law school can’t hurt. But it also can’t hurt to learn how to fly a helicopter.”
Techniques for Teaching Law 2
Here’s a valuable addition to your bookshelf: “Techniques for Teaching Law 2” (Gerald Hess, Steven Friedland & Sophie Sparrow ed.) (Carolina Academic Press 2011). The book contains a great number of explanations of general teaching principles and of concrete teaching ideas from a wide variety of law professors who care about teaching. Given the editors, you know from the beginning that this is a great book. Disclosure: Jim Levy and I have made modest contributions to this effort.
January 29, 2012
Course Portfolios: First-Year Contracts by Gillian Hadfield
A few weeks ago, I mentioned the course portfolios on the Educating Tomorrow's Lawyers Website, which gives examples of doctrinal courses with strong skills elements. A recent addition to this page by Gillian Hadfield illustrates how a first-year contracts course can better prepare students for practice.
"I strongly believe that our efforts to bring problem-solving and team-based approaches into legal education should start in first year. I teach a first year Contracts course that still covers all the key doctrines but simultaneously gets students developing their skills in legal argument, analysis, judgment, and team work right out of the gates. This approach also significantly improves their understanding and retention of the legal rules and cases that have made up first year Contracts for decades."
"A key goal of the course is to develop situated understanding of legal doctrines and in particular to focus on the development of fact-rich arguments and (on-point) counterarguments. Ambiguity and alternative interpretations of facts—and the exercise of judgment about the plausibility and strategic value of alternative interpretations—are emphasized. Other goals include the ability to see how legal issues interrelate, how their structure informs the assessment of the likelihood of success on alternative strategies for the client, and the development of judgment in identifying the most important issues on which to focus."
She concludes that "I have been teaching Contracts for 20 years and I feel confident that students master legal rules and doctrines better in this course than in the conventional course."
The above can only begin to demonstrate the wealth of detail on Hadfield's contracts portfolio page. In addition, to discussing her methods in detail, she includes class materials, such as an outline, study materials, and a sample exam.
Hot off the press - "Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument"
Authored by professors Austen L. Parrish and Dennis T. Yokoyama, both of Southwestern School of Law, it's just been released by Carolina Academic Press and is available here for purchase.
Here's a description from the publisher followed by a partial table contents:
Effective Lawyering takes a unique approach to legal writing and oral advocacy. Many excellent legal writing books exhaustively detail how to write effectively. Those books — which are written primarily for first-year law students and are often several hundred pages long — meticulously explain the dos and don’ts of effective advocacy and provide numerous exercises for students to complete. Effective Lawyering, which can serve as a useful supplement to these lengthy introductory texts, takes a different approach. The book assumes the reader has learned the basics of legal writing, and at most needs only to be reminded about them. The book also assumes that most practitioners (and, for that matter, law students) lack the time to read lengthy discussions of all the subtleties of legal method.
Effective Lawyering concisely describes useful, yet often neglected, writing techniques. The book has pithy discussions of: (1) ways to avoid recurring, yet frequently overlooked, writing problems; (2) sensible approaches to writing common legal documents (trial court and appellate briefs, memoranda, letter writing, and academic writing); and (3) methods for preparing an oral argument. In addition, it provides the reader with a series of checklists to turn to when undertaking a writing project or preparing for oral argument. In sum, this book is not for the novice who requires a comprehensive guide. Nor is it for the sophisticated writing expert, looking for nuanced discussions about esoteric topics not commonly covered in legal writing books. But it is for practitioners and law students who want to be refreshed on the basics of effective lawyering: fundamentals that they most likely learned in the first year of law school, but perhaps have forgotten.
While maintaining the same structure, tone, and approach of the original edition, the Second Edition of Effective Lawyering provides expanded coverage and more detailed information in every chapter, as well as revised checklists at the end of each chapter.
Techniques for Effective Legal Writing
Effective Writing Checklist
Trial Court Briefs
Trial Court Brief Checklist
Appellate Brief Checklist
Effective Oral Argument
Oral Argument Checklist
Interoffice Memorandum Checklist
Letter Writing Checklist
Academic Writing Checklist
Recommended Reading and Selected Bibliography
Sample Memos and Letters
A more detailed table of contents can be found by clicking here.
Tips for writing better parentheticals - Part 2
In this second post from guest blogger Nicholas Wagoner (of CircuitSplits.com), we learn more tips for writing effective parentheticals in briefs. For those of you who missed Part 1, you can find it by clicking here.
Crafting Perfect Parentheticals (Part 2 of 3)
Earlier this month in a piece entitled “Common Parenthetical Pitfalls,” we learned how to diagnose poorly drafted parentheticals. Today we shift our focus to studying ways to cure poorly drafted parentheticals, as outlined in Ross Guberman’s new book on legal writing, Point Made: How To Write Like the Nation’s Top Advocates.
So what does it take to craft perfect parentheticals? In Point Made, writing guru and former chief judge of the Third Circuit, Ruggero Aldisert, boils it down to three key ingredients:
(1) the parenthetical must tell the reader why you are citing the source if it’s not clear from the preceding sentence,
(2) the parenthetical must show the reader where the case fits into the theme or focus of the piece as a whole, and
(3) the parenthetical must do so in a clear and concise manner.
A thoughtful mixture of these three ingredients, Judge Aldisert explains, should produce a parenthetical in one of the following three flavors:
1. A “participle parenthetical” that begins with an “-ing word” (e.g., “holding”).
For example, in Contrerasv. Attorney General of the United States, the Third Circuit wrote, “Panels of the Seventh Circuit have issued conflicting decisions on the matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (recognizing due process right) with Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (denying due process right).” No. 10-4235, at n.3 (3d Cir. Jan. 4, 2012).
Point Made encourages readers to feel free to “depart from the -ing format when you’re simply providing various examples of the same thing,” as the following case illustrates:
Discrete groups in our society often have been excluded from jury pools. See, e.g., Taylor, 419 U.S. 522 (1975) (women); Thiel, 328 U.S. at 219 (daily wage earners); Hernandez v. Texas, 347 U.S. 475 (1954) (Mexican Americans); Smith, 311 U.S. 128 (African Americans); Norris v. Alabama, 294 U.S. 587 (1935) (same).
Brief of the NACD, ACLU, and NJP as Amici Curiae in Support of Respondent Smith, Berghuis v. Smith, 130 S. Ct. 1382 (2010) (No. 08-1402), available at http://www.aclu.org/files/assets/amicus_brief.pdf.
2. A parenthetical that consists of a single-sentence quotation.
In his appellate brief in United States v. Martha Stewart, defense attorney Walter Dellinger demonstrates how to effectively use this form of parenthetical:
To have “waived” a Crawford claim, Stewart would have to have foreseen the most significant Confrontation Clause ruling in the last half-century, but nevertheless deliberately (and irrationally) decided to ignore core constitutional violations that substantially prejudiced her. Not only is there no evidence to support such a supposition, this Court has emphasized how unrealistic it is. See Bruno, 383 F.3d at 78 (“[O]nly a soothsayer could have known with any certainty that [Crawford] would change the legal landscape.”); United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994) (“[P]enaliz[ing] defendants for failing to challenge entrenched precedent . . . would . . . insis[t] upon an omniscience . . . about the course of the law we do not have as judges.”).
Reply Brief of Defendant Martha Stewart at 30–31, United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (Nos. 04-3953(L)-cr & 044081(com)-cr), available at http://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=16218.
3. A “hybrid parenthetical” that alternates between the two.
In Gill v. JetBlue Airways Corp., the court uses the “hybrid” parenthetical form to great effect in the following passage:
District Courts within the First Circuit have generally adopted the Hodges approach, holding that “service” includes activities peripheral to point-to-point transportation itself. See Chukwu v. Board of Dir. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995), aff’d mem., 101 F.3d 106 (1st Cir. 1996); DeTerra, 226 F. Supp. 2d at 277; Seymour v. Continental Airlines, Inc., 2010 U.S. Dist. LEXIS 105980, 2010 WL 3894027 (D.R.I. 2010). Even those courts that have found particular activities to be outside the scope of “services” contemplated by the statute have done so through reasoning that is consistent with the Hodges standard. See Somes v. United Airlines, Inc., 33 F. Supp. 2d 78, 82-83 (D. Mass. 1999) (holding that the in-flight provision of medical equipment is not a “service” because it is not a “bargained-for or anticipated” element of air travel); Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28, 39 (D. Mass. 2002) (same).
Civil Action No. 10-11454-FDS (D. Mass. Dec. 14, 2011). Notice how the following parenthetical (1) tells the reader why Somes is cited (i.e., to show that Gill and Somes rely on the same legal standard even though they reach seemingly inconsistent outcomes), (2) shows where the case fits into the focus of the court’s opinion (i.e., it acknowledges seemingly inconsistent precedent and explains why this is in fact not the case), and (3) conveys these nuanced points in a clear and concise manner.
To recap, in Part I we looked at “common parenthetical pitfalls” before learning how to “craft the perfect parenthetical” in Part II. Stay tuned for Part III, which will consist of a list of top “parenthetical starter words.”
Most Significant Disciplinary Cases of 2011
Each January, the Disciplinary Board of the Supreme Court of Pennsylvania identifies the most significant Pennsylvania disciplinary cases of the past year.
In selecting the cases, The Board looks at several factors, including (in no particular order):
- Unusual or extraordinary fact situations;
- Decisions which address legal issues that often come up in disciplinary cases;
- Decisions which discuss the meaning of one of the Rules of Professional Conduct or Rules of Disciplinary Enforcement;
- Decisions which present reviews of prior cases on a subject;
- Decisions addressing new issues, especially involving technology;
- Decisions regarding situations which may arise regularly in the practice of law.
Here’s a link to summaries of those cases.
On the national front, John Steele of the Legal Ethics Forum has identified his Top Ten Ethics Stories of 2011.