Saturday, April 6, 2013
Lawyers tend to see the world through legal eyes, and psychiatrists likewise see the world through the eyes of their profession. Now we learn the answers to legal and medical questions posed by the TV series “The Walking Dead.” Over at Wired, we learn the answers (Warning: below are some spoilers for season 3. Also, even some of the questions below are a bit gruesome):
Do the Undead Have Legal Responsibilities?
Are Mercy Killings Legal During the Zombie Apocalypse?
Was It Illegal for Rick to Help Andrea Commit Suicide?
Was It Legal for Rick to Chop Off Hershel’s Leg?
How Does the Zombie Apocalypse Affect Moral Reasoning?
What Makes the Governor a Psychopath–But Not Rick?
Why Do the People of Woodbury Follow the Governor?
The National Rifle Association appointed a task force to flesh out its proposal for trained armed guards in all American schools. Here is a link to the task force report on the National School Shield Proposal. You may be underwhelmed.
Here is an article on the proposal from Education Week with links to other proposals.
The lack of effective feedback to students is one of the top deficiencies of legal education. Doctrinal classes give very little feedback. Most doctrinal classes have one exam at the end of the semester. Six weeks later, when the student gets the exam back it will usually only have a grade on it with no comments. Most professors will meet with their students about the exam, but this comes well after the exam is over and the student has moved on to other topics.
This is not an effective method of educating students. Students need frequent formative feedback to be effective learners. Frequent formative feedback allows students to progress slowly, fixing their mistakes before they move on. Without effective feedback is it any wonder that law students forget what they learned in the first year by the third year?
A couple of days ago, the New York Times had an excellent article on giving students and employees effective feedback. The article argues that, while novice learners prefer positive feedback and experts prefer negative feedback, it is important to give both types of feedback to all learners. The article notes, "Those who have studied the issue have found that negative feedback isn’t always bad and positive feedback isn’t always good. Too often, they say, we forget the purpose of feedback — it’s not to make people feel better, it’s to help them do better." As one expert remarked, ""We need to separate the emotional side from the technical points.”
It is important to be clear when we give negative feedback. “We say, 'That was a great piece of work, there was just a small problem,’ ” Mr. Harford said. “What we tend to hear is, ‘That was a great piece of work.’” "Professor Fishbach also said people giving feedback often didn’t give enough information, offered it too late or told subordinates what would happen if they did something wrong rather than what they were actually doing wrong. Employees need to know in detail what they should do to get promoted, for instance. If you tell them simply that they’re not going to get promoted, she said, 'That’s not feedback — it’s already an outcome.'"
While it is important to be clear in giving negative feedback, one should also avoid judgmental language. For example, "Peter Sims, author of 'Little Bets: How Breakthrough Ideas Emerge From Small Discoveries,' said the film company Pixar used an idea it called 'plussing.' The point, he said, is to 'build and improve on ideas without using judgmental language.'"
In sum, "That’s the trick then: making negative feedback precise and timely enough so that it’s helpful but neutral enough so that it’s not perceived as harshly critical. That’s particularly difficult in a culture like ours, where anything short of effusive praise can be viewed as an affront. But, again, if we look at feedback as an opportunity to make someone work better rather than feel better, we’re more likely to do it successfully. As Professor Fishbach said, 'We’re probably unaware that people would like to know how to improve, and they deserve to know it. It’s their right.'"
(Scott Fruehwald) (hat tip: Ruth Anne Robbins)
Friday, April 5, 2013
Professor Henderson, one of the leading commentators on the "law school crisis," has authored a new article entitled "A Blueprint For Change" which is available at 40 Pepp. L. Rev. 461 (2013) and here on SSRN. From the abstract:
This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.
I think student have difficulty in getting a sense of good writing style. Here is a definition of style from The Writing Center at the University of North Carolina—Chapel Hill:
Have you ever wondered what your instructors mean when they write “wordy” or “passive voice” or “awk” in the margins of your paper? Do you sometimes sense that your sentences could be stronger, clearer, shorter, or more effective? Do you often feel that you know what you mean but do not know how to say it? If you sometimes get feedback from your instructors that you need to “tighten your prose” or “look at your word choice,” you may need to work on your writing style—the way you put together a sentence or group of sentences.
Part of the problem with style is that it’s subjective. Different readers have different ideas about what constitutes good writing style, and so do different instructors and different academic departments. For example, passive voice is generally more acceptable in the sciences than in the humanities. You may have an instructor who keeps circling items in your paper and noting “word choice” or “awkward” and another who comments only on content. Worse yet, some of what readers identify as writing problems may technically be grammatically correct. A sentence can be wordy and still pass all the rules in the grammar handbooks. This fact may make it harder for you to see what’s wrong, and it may make you more likely to think that the instructor is picky or out to get you when you read her comments. In fact, the instructor probably just cares about your development as a writer. She wants you to see what she thinks interferes with your argument and learn to express your ideas more directly, elegantly, and persuasively.
Here is a link to the Writing Center’s electronic handout on the subject. It discusses wordiness, passive voice, nominalizations, weak verbs, and ostentatious erudition, all with helpful examples.
Thursday, April 4, 2013
OK, you did your legal writing class moot court exercise as a 1L, then joined a moot court team during your second year and competed a few rounds against other schools. But now that you're about to graduate, where do you go to get more appellate experience with real cases? It isn't easy since most partners aren't going to hand over the reins in an appellate case by having the most junior associate in the firm argue the case. To the rescue comes this column from the ABA's Litigation Section which offers some tips for helping brand new lawyers find opportunities to hone their appellate oral advocacy and brief writing skills post law school.
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Take a Pro Bono Appeal
While legal education provides a helpful foundation for practice, there is no substitute for hands-on experience. Therefore, one of the best ways to learn how to manage an appeal is to actually do one. Although a firm’s paying clients might be less than thrilled about a new associate taking over a complex appeal, there are many litigants without counsel who would be grateful for an attorney to take their case. Where an appeal would otherwise be advanced pro se, appellate courts are equally thankful to have a pro bono attorney articulate the issues on appeal and present cogent legal arguments.
Every federal circuit and many states have some form of pro bono appellate program. While some, such as the Second Circuit Court of Appeals, have minimum practice requirements, others do not. In jurisdictions without minimum requirements, new associates should review the court’s website or contact the clerk’s office to find out how to apply to take pro bono appeals. Once you apply and begin thinking of accepting an appeal, it is also important to confer with your firm’s appellate-practice group to make sure the issues presented do not conflict with the firm’s current work or clients.
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Offer to Edit Briefs
There are two important skills that new associates generally have and seasoned attorneys often lack: researching and cite checking. Even the best appellate attorneys can use a little help with their cite checking, and who better to assist than an eager young associate? Offering to take on the onerous task of reviewing citations is an excellent way to show that you are diligent and detail-oriented. Also, for those with recent clerkship experience, chances are you are familiar with the court’s preferred writing and style, and you can impress the partner by making sure the brief conforms to the court’s preferences. Mention this skill when asking the partner if you can edit and cite check a brief, and you are sure to get in on the job.
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Offer to Assist with Moot-Court ArgumentsWatch or Listen to Oral Arguments
Put your moot-court experience to work by offering to assist the appellate attorneys in your office prepare upcoming oral arguments. New associates can be a cost-effective way to fill a moot panel, and the benefits are two-fold: First, the firm gets a mock judge who has recent experience with argument settings through, for example, a clerkship; second, the associate gets to see how a seasoned appellate attorney prepares a case for oral argument. You will also get familiar with the briefs and the legal issues.
While doing billable work is the primary concern for most new associates in law firms, there are some valuable learning opportunities you can avail yourself of during your non-billable time. One of these is watching or listening to oral arguments. Most federal and state courts either stream arguments live online or post prior arguments. Pick an argument by a well-respected advocate and spend 20 minutes getting a sense of how an appellate practitioner handles the process.
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Get Involved in the State Bar
Many state bars have sections or practice groups devoted to appeals. Join this group and attend a meeting.
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Continue reading here.
The Rules Committee of the Connecticut Superior Court has rejected requiring new lawyers to spend a day in “boot camp” to learn about the practice of law. From the Connecticut Law Tribune (excerpts):
After lengthy discussions, the Rules Committee of the Connecticut Superior Court has voted down a proposal to require new lawyers to participate in one day of career training before launching their careers. The proposed "boot camp" for new lawyers was seen as a compromise to a Connecticut Bar Association plan to bring mandatory legal education for lawyers in the state.
The plan for a one-day training for newly admitted Connecticut lawyers was one of two recommendations that a Rules Committee task force on MCLE came up with earlier this year. The other idea, for an annual "professional day" in each judicial district, during which lawyers would voluntary take part in seminars and legal education discussions, will move forward. That proposal did not need the approval of the Rules Committee.
A main objection is that no empirical evidence indicates that CLE programs improve the quality of lawyering.
Though 46 states now have CLE, Connecticut opponents have also noted that there is no empirical evidence that there is a higher quality of lawyering in places where CLE is required.
Superior Court Judge Elliot Solomon was selected to lead the task force to study the feasibility of an MCLE program, and how much it would cost to run. From the beginning of his assignment last year, Solomon noted deep division among lawyers. Opponents of MCLE included members of regional bar groups like the New Haven County Bar Association. That group polled its members and found 70 percent of its 1,300 members did not like the idea of MCLE, citing concerns about time away from work and costs.
Wednesday, April 3, 2013
From the National Jurist Magazine:
Arizona State University is the latest school to launch a program designed to hire and mentor recent graduates.
The Law Group will be a stand-alone, nonprofit firm, modeled after a teaching hospital. It will be a full-service, fee-based institution that will provide legal services to clients, focusing on those who cannot afford to pay current market rates.
It is designed to prepare recent graduates to move from the classroom to practice by using experienced attorneys as supervisors.
. . . .
The firm will be comprised of four to five litigation and transactional practice groups, with five recent College of Law graduates serving as associates in each, for terms of up to three years. The groups will each be overseen by supervising attorneys. In addition to providing on-the-job training, the firm will provide formal training to junior lawyers on substantive areas of law, essential skills, and client development and retention. The firm will hire about 10 ASU law graduates per year for a total of 30 associates at any one time.
Read more here.
This is one of my pet peeves. Don’t write “I only have eyes for you,” when you mean “I have eyes only for you.” There is a difference. Consider how the following sentences differ in meaning:
- Only John hit Peter in the nose.
- John hit only Peter in the nose.
- John hit Peter only in the nose.
- John only hit Peter in the nose.
“Only” is an adverb. Place it as close as you can to what that it modifies. Here’s a longer explanation from Grammar Girl.(ljs)
Professor William D. Henderson: Law Students Have an Important Role to Play in the Future of Legal Education
Professor William D. Henderson believes that law students have an important role to play in the future of legal education. (here) He declares, "I urge law students to ask us law professors tougher questions about the current state of legal education, albeit with respect. If they ask tough questions, we will all be better off."
He continues, "First, we need your skepticism to question our methods and our motives. The legal marketplace is undergoing significant changes. We did not adequately anticipate these disruptions. In addition, we do not fully understand their breadth and depth. Because we are human, we are reluctant to admit our confusion. Even worse, we may even deny there is a problem. After all, the confluence of high student debt and a soft legal market happened on our watch.
Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals. All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings. As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others. Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals. This is a goal worthy of your time and talent."
I believe that it will take all relevant groups--legal educators, attorneys, law firms, politicians, the public, and law students--to make the changes that are necessary in legal education. I agree with Professor Henderson that law students are especially important to the future of legal education and that they should speak up. I also share his warning: "At the beginning of this essay, I failed to mention one key proviso to my 'question authority' admonition. I told the law students that when they question authority, they should do it respectfully. Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect. Your elders did not create the challenges that lie ahead. We are not your enemy. Our limitation is that we are human, and therefore imperfect; and so are you."
About this time a year ago, a number of students started a blog on how law students could affect the future of legal education. The blog was insightful, informative, and polite. I gave the students some guidelines on how they could influence legal education. (here) Unfortunately, the blog has disappeared. I urge law students to use their voices, and maybe some students will create a new blog on the future of legal education. As a famous commercial used to say,"Those who are not part of the solution are part of the pollution."
Tuesday, April 2, 2013
The blog Above the Law has been conducting a poll that asks current law students to rate the quality of their schools in several categories including faculty and instruction, career counseling and help finding a job, and how good is the school's social life. In particular ATL has also asked students to rate the quality of the practical legal education they are receiving. So far only students in Boston, the greater NYC area, and Chicago have been surveyed but we've got the results for you below and will update the story as students in more regions are polled. Survey participants were asked to rate schools based on a 4 point scale with with "1" being the lowest and "4" the best.
Practical and Clinical Training:
1. Northeastern (3.92)
2. Suffolk University Law (3.24)
3. Harvard (3.20)
4. Boston University Law (3.12)
5. Boston College Law (2.93)
Practical and Clinical Training
1. CUNY (3.50)
2. Seton Hall (3.44)
3. Fordham (3.42)
4. NYLS (3.40)
5. NYU (3.30)
6. Brooklyn (3.28)
7. Cardozo (3.22)
8. St. John’s (3.11)
9. Hofstra (3.11)
10. Columbia (3.02)
11. Rutgers-Newark (2.88)
Practical and Clinical Training:
1. Northwestern (3.58)
2. Loyola University – Chicago (3.53)
3. Chicago-Kent (3.26)
4. University of Chicago (3.00)
4. DePaul University (3.00)
4. John Marshall (3.00)
The ABA Section on Legal Education and Admission to the Bar has released employment statistics showing the class of2012’s employment statistics are 5.4% better than those of the Class of 2011. Here is the chart:
Metacognition is our awareness of the learning process. It is thinking about one’s own thinking. Metacognition involves monitoring and control of an individual's cognition and the learning outcome and reflection of the individual as learner.
Understanding metacognition and how to use metacognitive skills is a major part of becoming a successful learner. Helping law students become metacognitive learners will make them better lawyers and life-long learners. However, most students do not acquire metacognitive skills on their own. Rather, they require a “coach” (a law professor) to develop expertise.
This article shows how law professors can help their students understand metacognition and develop metacognitive skills. Part II of this article discusses metacognition in general, and Part III shows how law professors can help their students develop metacognitive skills. Subjects in Part III include developing metacognitive awareness, teaching metacognition in the classroom, teaching students how to use metacognition while studying, teaching students metacognition in one-on-one meetings, and using formative assessments to develop metacognition.
Monday, April 1, 2013
According to the National Law Journal story, this makes South Dakota the first state in the nation to pay lawyers to practice in underserved, rural areas. But don't pack your bags yet, the program anticipates only 16 attorneys will be eligible and they're already in South Dakota, it's just a matter of shifting them from one place to another. The program is modeled after those already in use to get doctors, dentists and nurses into underserved rural areas though it is not limited to brand new law grads, all can apply no matter their age.
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Governor Dennis Daugaard on March 21 signed first-in-the-nation legislation establishing incentive payments to as many as 16 attorneys who agree to practice in rural areas for at least five years. If the pilot program works, it could provide a blueprint for others states desperate for small-town lawyers. "South Dakota has enough attorneys — they're just not in the right locations," said state Senator Mike Vehle, who sponsored the bill. "We do this for doctors, dentists and nurses, so why not lawyers?"
Participating attorneys will receive the equivalent of 90 percent of the in-state tuition and fees at the University of South Dakota School of Law — about $12,000 — for each of the five years that they practice full-time in a rural county. That's on top of any earnings from their practice during the subsidy period, said Greg Sattizahn, director of policy and legal services for the South Dakota Unified Judicial System. The program will cost nearly $1 million, with the state picking up half the tab.
Vehle and Chief Justice David Gilbertson patterned the subsidy after a well-established incentive program for rural doctors, dentists and nurses. Gilbertson has been increasingly concerned about the decline in rural attorneys since he became the state's top judge in 2001. "I had made a commitment to visit each courthouse in the state, and as I drove around the rural areas it became obvious to me that the attorneys I used to know were gone," he said. "They had died or moved away, and no one had replaced them." Younger attorneys, it seems, prefer to live and practice in cities.
Continue reading here.
From the National Law Journal (excerpts):
New York state's court of last resort has refused to revive a lawsuit by disgruntled New York Law School graduates who alleged their alma mater enticed them to enroll through fraud. As the first of 15 similar lawsuits to reach a courtroom, the case had been seen as a bellwether.
The New York State Court of Appeals offered no explanation for refusing to hear Gomez-Jimenez v. New York Law School. The vote was 4-1, with Judge Robert Smith dissenting. Judge Jenny Rivera—a professor at the City University of New York School of Law for 15 years before her appointment to the court in February—abstained.
Nine graduates sued the law school in 2011, alleging it had induced them to enroll by lying about how well its graduates fared in the job market. They sought $225 million in compensation.
[Plaintiffs’ attorney]Strauss allowed that the high court's decision not to hear the appeal does not bode well for the three other cases against New York law schools. A trial judge in January dismissed a nearly identical action against Albany Law School; an appeal was pending. Plaintiffs are awaiting decisions at the trial level in cases against both Brooklyn Law School and the Hofstra University Maurice A. Deane School of Law.
While New York courts have been hostile to the law school suits, they have had more success elsewhere. A federal judge in New Jersey on March 20 denied a motion to dismiss a fraud case against Widener University School of Law, ruling that the alumni claims were plausible. California state court lawsuits against the California Western School of Law; Golden Gate University School of Law; the University of San Francisco School of Law; Southwestern Law School and Thomas Jefferson School of Law have survived initial motions to dismiss.
Still, cases against DePaul University College of Law; Chicago-Kent College of Law; and The John Marshall Law School have been dismissed, as has the case against the Thomas M. Cooley Law School, which is on appeal.
The Golden Gate University School of Law has joined Educating Tomorrow's Lawyers Consortium, which is "committed to innovation in the spirit of the Carnegie Report." (here)
Description of Program:
"Consistent with the promise made in our mission statement to “blend practical skills training with legal theory throughout the curriculum,” GGU Law integrates skills training and professional development across our curriculum, preparing students to be critical thinkers, problem solvers, and leaders in the legal profession. As a long-time leader in experiential learning, GGU Law offers comprehensive skills instruction as an essential part of our educational program to enhance students’ experience and prepare them for the realities of law practice today. In first-year lawyering electives, students confront real-world scenarios, develop their professional identity, and exercise lawyering skills in advanced substantive subject areas. Our Honors Lawyering Program weaves traditional classroom learning, simulation skills training, and client-centered clinical opportunities in a coordinated, intensive summer program after the first year, followed by a semester-long apprenticeship experience. GGU Law’s successful litigation program also offers students an innovative immersion program in the summer after the first year, which integrates evidence, trial advocacy, and theatre training. Finally, all students complete an experiential learning requirement and must gain practical hands-on legal experience in a clinic, externship, or simulation course prior to graduation. Our program innovations and enhancements focus on producing lawyers who possess a keen sense of their professional identity and development, confront ethical rules in the context of real-world legal practice, and demonstrate exceptional writing and research skills. GGU Law students graduate client and practice ready."
Sunday, March 31, 2013
There's so much hand-wringing these days over the tough job market law grads face that it's easy to forget once people land the law jobs they covet, many find the actual practice of law so unpleasant they look for ways to leave. If you're one of them, here's a three step approach to planning your own exit strategy courtesy of the Career Center column at Above the Law.
getting a handle on their money situation; to become as confident and exact as possible in understanding (i) their expenses, as well as any (ii) safety net and other sources of financial support they can call upon if needed.
The second step in leaving law behind is about not letting our past undermine our future. More specifically, this step involves resolving any lingering demons law school may hold over your head (squeezing out more of an ROI from my law school “investment,” ensuring my identity is tied to being an attorney, what else would I do if I’m not a lawyer, etc.) that prevents you from moving forward with positive change in your life.The third step? Now this is where the rubber hits the road, and the leave law behind process can become increasingly more difficult, but also highly rewarding. The third step focuses on exploring your Unique Genius. Your Unique Genius is made up of those skills and strengths that come so naturally to you, so effortlessly to you, that you don’t even think of them as a skill. It is upon these skills that you do so well that you will begin to base your post-lawyer life and career. It is with these strengths at which you excel that you will begin to create a life of confidence and self-worth
Continue reading here.
Particularly in the coming weeks leading up to exams, the stress on our students will accelerate. During their professional careers, they also will encounter times of stress. Here are some simple techniques, compliments of the ABA CLE blog:
Since stress affects the body, one of the first things you can do is a quick mental body scan. Simply take stock of where you are feeling tension in your body. Typical stress points are the jaw (clenched) and hands (rolled into fists). Others are the neck and shoulders (hunched up). And then there’s the brow (furrowed). As you notice the bodily tension, release it with your out-breath and imagine you are loosening up those tight areas.
Stress affects our ability to breathe deeply and easily. Shallow chest breathing is a sure sign of distress. A solution is to exhale slowly several times to slow things down which also enables you to take in a nice big in-breath. To make this even more effective, place one hand on your chest and the other on your belly. Your chest should be still and all the action should be happening with your belly.
Other stress reduction techniques include cognitive reframing (changing perspective), meditation, open focus attention, exercise and sleep.
The blog link will also permit you to find a podcast on the subject.