Saturday, August 17, 2013
Chapman University’s law school is the recipient of the second largest reported gift to
any law school in the United States thanks to a $55 million donation from
prominent real estate developer Dale E. Fowler and his wife Sarah Ann. The law
school will be named “The Dale E. Fowler School of Law.” A special
ribbon-cutting event will take place September 10 to commemorate the naming,
featuring keynote speaker former Secretary of State George Schultz.
You can read more here.
In this blog post, the Wall Street Journal discusses Professor Bernard Burk's (North Carolina) new draft article entitled What's New About the New Normal: The Evolving Market for New Lawyers in the 21st Century In it, Professor Burk predicts that although the job market for new lawyers (especially at BigLaw) will remain depressed, falling enrollments at law schools also mean there will be less competition for the available jobs. Translation: The job market is so bad, it will be good for those entering law school three to five years from now.
From the WSJ Law Blog:
[Professor Burk writes]
The class of 2012 found something over 26,000 Law Jobs. That was dreadful considering that there were over 46,000 graduates,but that number appears to be falling rapidly. Assuming that the contraction in the overall capacity of the legal academy continues as it has begun, the job prospects for those happy few (or perhaps more accurately, happier fewer) beginning law school three to five years from now should be considerably brighter for those further from the top of the class and the top-ranked schools.
A word of caution, though. It may be easier to land a job, but that doesn’t mean it’s going to be a top-dollar one.
Mr. Burk tells Law Blog that it’s the market for jobs at smaller firms and in government that could get less competitive, along with lower-paying document-review positions at larger firms.
“All of which means that while it appears that law school is a questionable gamble for all but those confident of a good finish at a strong school, that may only be true right now,” writes Mr. Burk.
Friday, August 16, 2013
Thanks to our buddy Joe Hodnicki at the Law Librarian Blog for tipping me to this recent survey conducted by The Research Intelligence Group (and funded by LexisNexis) that asked digital native associates at a variety of law firms how they conduct research. More specifically, the survey queried "190 young attorneys equally represented by large and small law firms across a variety of practice areas . . . [who were] in practice for five or less years . . . ." The survey results were summarized in a report called Rebooting Legal Research in a Digital Age by Steven A. Lastres, the Director of Library & Knowledge Management at Debevoise & Plimpton. Below are some of the key findings and recommendations to law schools about research instruction based on the survey results:
- Newer attorneys spend more than 30% of their time doing legal research
- Approximately 50% of associates think legal research should be a larger part of the law school curriculum
- Over 80% of associates use an extensive range of content from traditional primary law and secondary materials to News, Court Transcripts, Verdicts, Dockets, Public Records and more.
- Legal Classification systems are rarely used (only 12% begin with a legal classification system)
- Attorneys use free online research resources but spend most of their time, over 8 hours per week using paid-for online research services.
Key recommendations [regarding] what law schools and employers can do to update and enhance legal research instruction:
- Adjusting time allocated to hard copy vs. online research
- Reducing emphasis on legal classification systems
- Mastering use of treatises and other highly used sources such as legal news, regulatory materials and public records.
Thursday, August 15, 2013
From the school's website:
Coastal Law has created The Center for Law Practice Technology (CLPT), a focused unit within the school that will offer certificates in legal technology and law practice management. According to Coastal Law administrators, the CLPT is designed to prepare students for a new and evolving legal marketplace that increasingly demands knowledge and skills related to technology and innovation.
Richard Granat and Stephanie Kimbro, acknowledged leaders in the online legal technology movement, have been appointed as Co-Directors of the CLPT. They will also serve as affiliate professors at Coastal Law.
“At its core, the certificate offered through the center will ensure students graduate with the technological competence all lawyers need in light of the demands of the profession, namely how to leverage technology to serve clients more effectively and efficiently,” Granat said. “However, we also understand it is perhaps even more important to prepare students for new positions in the burgeoning market of companies offering technology solutions for legal services, including electronic discovery, legal process outsourcing, law practice management software, automated document assembly and more.”
For those interested in pursuing more traditional career paths, Coastal Law Vice President of Strategy and General Counsel Terri Davlantes said students earning certificates through the CLPT will know how to create a virtual law firm that provides 24/7 access for clients, how to automate frequently used legal documents, how to leverage social media to develop a law practice brand, and the legal ethics surrounding the delivery of online legal services.
Davlantes added the CLPT furthers Coastal Law’s mission to provide “service to the underserved.”
“Many Americans cannot afford a lawyer or they do not qualify for the limited legal aid programs that may be in place in their communities,” she said. “The legal profession faces a delivery problem in that we have failed to develop sustainable models for delivering legal services that are affordable and accessible to all.
“We must evolve and innovate how we deliver those important legal services and the CLPT is a step in the right direction.”
Pauline Maier has passed on. She was a professor at MIT and
a prominent scholar of the late American colonial history, the American
Revolution, and the Founding period. Legal writers may be interested in
Wikipedia’s description of her writing and research styles:
Maier’s writing is characterized as serious and unadorned, with a crossover
appeal from scholars to intelligent readers who enjoy a well-told story of
well-researched scholarly history.
In 'Ratification', Maier attributed her masterful storytelling to Barbara
Tuchman’s insight that the writer can build suspense by never acknowledging
a development until the characters in the narrative could know it.
Professionally, her research-writing technique is self-described as looking for something comparative to come up with new questions. For example, in “American Scripture” she found over 90 local declarations and then compared them to that of the Second Continental Congress. Popular support for the Declaration of Independence was built on how much was known and how widely the newspapers circulated. Massachusetts did not control Virginia, there was a confluence of ideas, assumptions, and similar responses to similar events
Here is the link to the entry.
Wednesday, August 14, 2013
Abstract: In addressing best practices in legal education, this article explores reasons why Langdell’s case method is inefficient, myopic, lifeless, and simply wrong in its general elevation of certain appellate cases over other sources of law. In demonstrating the factual and semantic impossibility of separating legal theory from practice, this article also discredits: (1) Langdell’s strange notion that legal practice renders lawyers unfit to teach law, (2) related claims that real lines can be drawn between “doctrinal” and “practical” courses, (3) related views that legal writing professors and clinical professors cannot be “core” law school faculty, and (4) misguided fears that law schools embracing “practice” are somehow less academically rigorous than law schools which do.
In reviewing the inseparability of legal theory and practice, this article also reviews the modern cognitive theory of embodied meaning, the reasons why embodied meaning also fuses theory and practice, and reviews the importance of understanding metaphor and category usage in such embodied legal meaning. In exploring the importance of metaphor in legal education, this article also addresses the inseparability of the liberal arts from best practices in legal education. To supplement this discussion, appendices on metaphorical traps for lawyers and on stock metaphors are included.
Given the deficiencies in Langdell’s case method, the problems with Langdell’s views of experienced faculty, and the inseparability of legal theory and practice, this article suggests new approaches to pedagogy, course books, and faculty selection. Among other things, it proposes: (1) abandoning the case method except in subjects such as Constitutional law where cases actually comprise important primary materials, (2) revising course books to incorporate hornbook material and actual practice examples, (3) recognizing the importance of substantial practice experience when hiring new faculty, (4) erasing arbitrary lines between “core” and “non-core” faculty, and (5) placing greater emphasis upon the humanities in legal education.
When you tell a child not stick peanuts up his nose, what happens? He sticks peanuts up his nose, 'natch. When you tell the court in your legal brief that the opposing party will no doubt make argument "X," what happens? To your detriment, your opponent is now going to make that argument even though it never occurred to her before. That's the most recent legal writing tip from Mark Herrmann - Chief Litigation Counsel at Aon, author of The Curmudgeon's Guide to Practicing Law and Above the Law columnist extraordinaire - in the following post.
. . . .
“Never tell a small child not to stick peanuts up his nose.”
Why does that matter?
Or maybe I should start with a more basic question: What the heck does that mean?
You’re writing an opening brief. You know what the other side’s best response will be to one of your arguments. So you drop a footnote saying: “In response to this point, the other side will surely say X. But X is wrong for the following three reasons. . . . ” And then you wrestle the other side’s argument to the ground.
. . . .
Never tell a small child not to stick peanuts up his nose. If you tell a small child not to stick peanuts up his nose, you’ve guaranteed yourself a trip to an ear, nose, and throat specialist, so the doctor can pry six peanuts out of the kid’s nose.
“It’s the same with opposing counsel. You know a great argument that the other side should make. If you don’t mention the argument, the other side may miss it. But if you include your footnote preempting the other side’s best argument, you’ve guaranteed that a big chunk of the other side’s brief will wallow in your great argument. Be careful when you try to preempt the other side’s arguments; you may simply be telling a young child not to stick peanuts up his nose.”
. . . .
If you were 100 percent certain that the other side would make an argument, then you might preempt it. If you were concerned that the other side might miss the argument, but the court would think of it, and you’d lose without having had a chance to brief the issue, then you might preempt the argument. But you always thought long and hard before anticipating the other side’s arguments, for fear of telling a small child not to stick peanuts up his nose.
But Mark's not done there. He's got two more great tips for aspiring litigators. Click here to see what they are.
From the Connecticut Law Tribunal:
A former legal secretary at the Waterbury law firm of Grady & Riley has been charged with stealing more than $1 million and forging dozens of checks and documents.
Barbara Kalpin, of Southington, was a longtime and trusted employee at the firm, who spent about $500,000 over the last few years at an off-track betting venue in New Haven for
horse and dog racing, Waterbury police said. She wrote 93 checks from a client
fund that she managed, also using the money to pay credit card bills and to
finance multiple mortgages on her home.
Kalpin, who is facing two counts of first-degree larceny and 112 counts of second-degree forgery, and is awaiting arraignment next week.
Meanwhile, state Chief Disciplinary Counsel Patricia King said that the firm will be investigated. "Generally, lawyers have an obligation to supervise their staff. That's according to the Rules of Professional Conduct," King said. "At this point, I'm not in a position to say whether that duty was violated by this particular firm because I don't have all the information."
The firm's founder, Francis Grady, said that he self-reported the incident to the Statewide
Grievance Committee in May. "The grievance was filed by me," Grady
said. "We're sad that we've had a long-term employee embezzling money."
You can read more here.
I don’t know if the secretary here was bonded, but the lesson to make sure that
anyone who handles money is bonded. The media frequently reports embezzlements
from school boards, churches, and small businesses. This advice also applies to
any students and school administrators who handle money. For example, is your
SBA student treasurer bonded?
Tuesday, August 13, 2013
Hamline, St. Thomas and William Mitchell have cut faculty and/or staff while the University of Minnesota has opted to enroll more students. From the Star Tribune:
Twin Cities law schools are being forced to make difficult choices about where to cut as they confront what has become a nationwide pullback in enrollments.
Some have admitted fewer students and are cutting faculty or staff to make up for the loss in tuition revenue. Others are admitting bigger classes at the risk of a potential drop in national rankings.
Hamline University School of Law opted for the smaller class — 56 percent smaller than in 2010 — and turned to its biggest operating expense, faculty, to balance the budget. Since 2011, when the school began offering early retirement incentives, 10 faculty members have retired and four more have accepted agreements to retire in the next academic year.
“We are exploring whether or not we need to reduce it even by a few more,” said Hamline law dean Don Lewis.
. . . .
Hamline’s Lewis said he won’t admit a larger class for money. Doing so “in this environment is not a good choice.”
But after admitting a small class last year, the University of Minnesota Law School can’t afford to do so again. It is aiming to enroll more students. Dean David Wippman recognizes this could mean a drop in the median LSAT and GPA scores used by U.S. News & World Report in its rankings.
“It’s something that we have to pay a lot of attention to,” Wippman said.
The change doesn’t necessarily mean lower standards, he said, “it’s just we’ll have a slightly different mix.”
The U’s law school offered retirement incentives, but no faculty members accepted. Nine staff members left through a voluntary program.
University of St. Thomas School of Law is on track for its smallest class in more than 10 years after receiving 59 percent fewer applications this year than in 2010. Dean Rob Vischer said he decided to not renew a visiting professor’s contract and to eliminate 2 ½ staff positions.
To get faculty and staff more in line with a smaller student body, William Mitchell College of Law Dean Eric Janus chose not to replace two faculty members who retired and a third who took another job. They’ve also reduced the staff size by 20 percent and cut operating costs elsewhere, such as replacing computers less often.
. . . .
Continue reading here.
South Carolina state lawmakers are proposing that the Charleston School of Law merge
with the College of Charleston. Republican representative Stephen Goldfinch of
Murrells Inlet is a major proponent of the merger. He commented, “I believe the
legislature would support such a merger. It could be done tomorrow.”
In the past there have been informal discussion about the possibilities of a
merger, but nothing solid had been finalized. The chairman of the College of
Charleston’s Board of Trustees Greg Padgett, commented, “we would welcome every
opportunity to discuss how the College of Charleston can better serve the
people of Charleston and the state.” He goes on to say that there is a definite
interest in discussing and overseeing the facts and small details involved in
such an alliance.
You can read more here at JDJournal.
Monday, August 12, 2013
Campbell is part of the Raleigh-Durham "triangle" region and this story comes to us from the Triangle Business Journal:
Clinics are a staple of students’ third and final years of law school. They’re a chance for students to work under law professors in serving clients of limited means.
It’s usually low-income individuals or public-interest nonprofits, such as one that focuses on keeping a particular watershed pollution-free. Campbell’s two existing clinics are for elder law and juvenile law, both of which are fairly common among law schools.
Legal clinics focused on helping business owners are a bit rarer. Neither UNC nor Elon University, in Burlington, has one. NC Central University has a general small-business clinic, which shares a focus with community development, as one of its 10 clinics. Duke University has a clinic that serves entrepreneurs and start-ups.
The imbalance is certainly understandable. Business owners may be nervous at the prospect of relying on non-attorneys for legal advice, and can pay for fully professional representation. And law students who represent, say, moderate-income taxpayers in tax issues, are still gaining valuable experience they’ll be able to put to use later in providing tax advice to businesses.
Still, Leonard’s idea strikes me as a potential step in a fruitful direction.
. . . .
Continue reading here.
In 1951, philosopher Bertrand Russell set out these ten commandments. They focus on not being arrogant and on being open to new ideas—by you and by your students. Here they are, from Brain
- Do not feel absolutely certain of anything.
- Do not think it worth while to proceed by concealing evidence, for the evidence is sure to come to light.
- Never try to discourage thinking for you are sure to succeed.
- When you meet with opposition, even if it should be from your husband or your children,
endeavor to overcome it by argument and not by authority, for a victory dependent upon authority is unreal and illusory.
- Have no respect for the authority of others, for there are always contrary authorities to be
- Do not use power to suppress opinions you think pernicious, for if you do the opinions will
- Do not fear to be eccentric in opinion, for every opinion now accepted was once eccentric.
- Find more pleasure in intelligent dissent than in passive agreement, for, if you value
intelligence as you should, the former implies a deeper agreement than the latter.
- Be scrupulously truthful, even if the truth is inconvenient, for it is more inconvenient
when you try to conceal it.
- Do not feel envious of the happiness of those who live in a fool’s paradise, for only a fool will
think that it is happiness.
Sunday, August 11, 2013
One of the charges against legal education reform is that it will be less rigorous than traditional legal education. However, legal education reform is more rigorous than traditional education because it involves higher stages of thinking.
For over 10 years, much of legal education reform has been based on Bloom's taxonomy (e.g., here, Schwartz et. al., Teaching Law by Design, at 69-70 [Schwartz I], here at 21, here), which was "first published in 1956 as the result of an effort (headed by Benjamin Bloom at the University of Chicago) to establish standard terminology through which educators could discuss and clarify teaching objectives; design tests to measure achievement of the target objectives; and assess whether tests did actually measure such achievement." Bloom found that "mid-twentieth-century testing from primary through post-secondary American schools tended to rely heavily on recall of factual material." "Bloom’s Taxonomy has fueled efforts among educators and curriculum designers to increase emphasis on more complex objectives, called 'higher order thinking skills.'" (quotes from here at 21)
Paul S. Ferber has succinctly described the six steps of Bloom's taxonomy (here):
1. Knowledge: The student can recall or recognize an idea. Knowledge is remembering what was covered in a way close to the way it was originally encountered in the educational process. This step includes a range of complexity, from remembering simple facts to remembering a complex theory. The progression is from the specific and relatively concrete to the more complex and abstract. An example of a question requiring a student to demonstrate knowledge is: What are the elements necessary to create a contract?
2. Comprehension: The student can grasp the meaning and intent of the material remembered. There are three types of comprehension behavior: translation (being able to put what one knows into other language); interpretation (being able to reconfigure what one knows in a way which makes it more accessible by focusing on the relative importance of the ideas, their interrelationships, and their relevance to generalizations in the original communication); and extrapolation (being able to make inferences with respect to implications, consequences, and effects that flow from the knowledge). An example of requiring a student to demonstrate comprehension would be: Describe the essence of the objective theory of contract formation.
3. Application: The student can select and correctly use the appropriate knowledge to solve a new problem. An example of a question requiring a student to demonstrate ability to apply knowledge would be: In view of the following facts, was a contract formed?
4. Analysis: The student can break down material into its constituent parts and detect relationships among the parts and the way they are organized. Skill in analysis includes five specific abilities: (1) to distinguish fact from hypothesis; (2) to identify conclusions and supporting statements; (3) to distinguish the relevant from the extraneous; (4) to determine how one idea relates to another; and (5) to detect unstated assumptions. An example of an exercise requiring students to demonstrate analysis is the process of briefing a case.
5. Synthesis: The student can combine separate elements and parts from multiple sources to create a pattern or structure not clearly there before. Synthesis requires creative behavior. An example of a question requiring a student to demonstrate ability to synthesize would be: To what extent do the cases of X v. Y, M v. N, and A v. B establish a new rule of contract formation?
6. Evaluation: The student can use specified criteria and standards to make judgments about the value of ideas, solutions, methods, or other material presented. It is critical that the student be given clear standards to use in making the evaluation. An example of a question requiring a student to demonstrate the ability to evaluate would be: To what extent are the cases C v. D and R v. O consistent with the objective theory of contracts?
Doctrinal classes do a good of teaching 1 and 2 and sometimes 4, but they often leave 3, some of 4, and 5-6 to be learned by students on their own, if at all.
Knowledge, comprehension, and analysis will remain in legal education because they are the foundation for all learning. These three categories can be taught in part by traditional law school methods, such as the Socratic method and the casebook method.
However, law students need to think more deeply using the other parts of the Bloom taxonomy.
Applying knowledge to problems should be an essential part of legal education. Yet, most doctrinal classes rarely practice this important skill. (I am aware that a few professors are including problem-solving exercises in their classes, but this is not enough.) All law school classes should include some kind of application exercises because such exercises are essential to learning. First, active learning engages the students and leads to deeper thinking. (Schwartz I at 29; Schwartz et al. What the Best Law Teachers Do, 211-16). Second, students remember more and can manipulate knowledge better when they have applied their knowledge. (Schwartz I at 19) Finally, "[e]ducational research indicates that while learners can master particular pieces of information or discrete skills, unless they have the opportunity to actively apply and use their new skills or knowledge to achieve a goal, they are able to apply them only in the context in which they were originally learned." (Gerdy, Teacher, Coach, Cheerleader, and Judge: Promoting Learning through Learner-Centered Assessment, 94 L. Lib. J. 59, 66 (2002)). In sum, problem-solving is the highest level of legal learning (Schwartz at 41), and students need to master problem-solving before they graduate from law school.
Studies have shown that law students find it difficult to synthesize cases. (Dorothy H. Evensen et. al., Developing an Assessment of First-year Law Students’ Critical Case Reasoning and Reasoning Ability: Phase 2, http://www.lsac.org/lsacresources/Research/GR/GR-08-02.pdf, *4 (Law School Admissions Council 2008)). The solution to this problem is simple: give the students case synthesis exercises. Some legal writing texts, particularly, the Shapo, include synthesis exercises, and my introduction to law book to be published soon by ABA Publishing contains an entire chapter on case synthesis.
Finally, evaluation is an important skill for law students. They need to evaluate their analysis, not just accept the first answer. They need to think about what the opposing counsel will argue. They need to be able to evaluate what they have learned to know if they are ready to be a lawyer. Finally, they need to know how to evaluate how they learn so they can be life long-learners.
In sum, adding the innovations suggested by legal education reformers to traditional methods of law school teaching will lead to deeper understanding by law students. Legal education reformers do not want to tear down traditional education, but to add to it--to make it more rigorous.
For more on legal education reform, I suggest reading Schwartz et. al., What the Best Law Teachers Do (2013).
The Lawyerist blog has published a great cheat sheet on tips for conducting more effective internet research including instructions for a modified Boolean search on Google using what's known as a "proximity operator" and a technique for finding files (e.g., pdf, PowerPoint, spreadsheets) within a website. Also part of the post is a list of links for internet research resources including this one that provides a comparison chart of search features for the major search engines like Google, Bing, Yahoo and Ask.com. That site in particular would be a good one to pass along to students as part of their legal research instruction.
From the ABA’s Litigation News:
Two attorneys received nine-month suspensions after admitting to influencing their
client’s version of events and pursuing a fraudulent suit for over a year. In the Matter of Rios.
ABA Section of Litigation leaders explain that this case from the New York
Appellate Division, First Department, sends a strong message to lawyers: Ensure
that a solid factual underpinning exists before taking on new cases, and do not
manipulate the facts to create a legal basis for the case.
NewFirm Opens Its Doors
About three years after graduating from law school, two classmates opened a
personal injury firm together. A few months later, the attorneys met with a
woman who claimed she had fallen on a badly cracked sidewalk while exiting a
church. She could not remember the name of the church or its precise location.
After agreeing to take the case, the pair began to investigate. They notified
the only church that fit her description about the incident and sought
information from the city as to sidewalk repairs.
When visiting the site, the attorneys found no defects in the only sidewalk abutting
the church. The attorneys did notice, however, that the sidewalk across the
street from the church was badly cracked. The attorneys photographed both
sidewalks. Meanwhile, based on information they obtained from the city, the
attorneys concluded that their client had no viable claim against the church.
Qualifications for a Claim
The attorneys showed the client photographs of the two sidewalks, making clear
that if she fell on the sidewalk next to the church, she had no claim, but if
she fell across the street, she could pursue a claim. When they then asked
where she fell, the client stated she had fallen across the street from the
church. The attorneys brought suit based on the new location.
As the case approached trial, the attorneys retained trial counsel. Tellingly,
before giving the file to the trial attorney, the attorneys sanitized the file
by removing documents that reflected their initial investigation. Ultimately,
the case was dismissed after trial began when the client was impeached by her
criminal convictions and her prior testimony denying them.
You can read more here.
On a recent post on Brian Leiter's Law School Reports, former dean Joseph Tomain declared: "There is a bit of disingenuousness here that goes unstated. Today, law schools are proliferating 'innovative' programming as revenue raising activities as traditional applications decline. Those efforts are certainly market-responsive. They are not necessarily based on sound, tested pedagogies."
This statement couldn't be more wrong. Legal education reform is based on solid education research.
Dean Michael Hunter Schwartz has based his many studies of legal education on "instructional design." Over ten years ago, he wrote, "Instructional designers presuppose that there are core methodologies for teaching all subjects well. These methodologies, the product of thousands of educational studies performed across all instructional levels, allow the instructional designer to tailor instruction to the learning characteristics of the learners, the needs of the instructional system and the nature of the learning task." (here at 356 & Fn. 35)
In the years since Professor Schwartz's article, there has been a mountain of scholarship on education and learning, both inside and outside legal education. You can find selected bibliographies of research on legal education here and on general education here. If you read the legal education books and articles, you will see that they are well-supported by general education research.
There is much to debate about legal education reform. However, those who oppose legal education reform should not be doing so based on the argument that it has not been tested because that argument is completely wrong.
P.S. I also recommend What the Best Law Teachers Do by Michael Hunter Schwartz, Gerald F. Hess, & Sophie M. Sparrow (2013).