Legal Skills Prof Blog

Emotional Intelligence in Business and Academia

Several years ago, researchers in emotional intelligence studied how successful emotionally mature business executives are. “Emotionally mature” includes such characteristics as self awareness and empathy. Their findings:

We found that of all the elements affecting bottom-line performance, the importance of the leader’s mood and its attendant behaviors are most surprising. That powerful pair set off a chain reaction: The leader’s mood and behaviors drive the moods and behaviors of everyone else. A cranky and ruthless boss creates a toxic organization filled with negative underachievers who ignore opportunities; an inspirational, inclusive leader spawns acolytes for whom any challenge is surmountable. The final link in the chain is performance: profit or loss.

From this body of research, we discovered that emotional intelligence is carried through an organization like electricity through wires. To be more specific, the leader’s mood is quite literally contagious, spreading quickly and inexorably throughout the business.

Common sense tell us that these findings apply to the academic world as well. Emotionally intelligent professors create a climate in which learning and creativity flourish. Emotionally intelligent administrators create a climate in which the best qualities of academia flourish.

(ljs)

 

Professor Jim Moliterno on Resistance to Change in Legal Education

Professor James Moliterno has posted an article on SSRN concerning the resistance to change in legal education.

The Future of Legal Education Reform

Abstract: "The history of the legal profession’s self-regulation during self-identified crisis times (such as the present) is not a happy one. The profession has resisted change. When it has instituted change, such change has been directed not at the existing members of the profession, but at new entrants. Mostly, the change that has come has been forced by the influence of society, culture, economics, and globalization — not by the profession itself. These change agents include Watergate, communist infiltration, the arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis that blends with dramatic changes in technology, communications, and globalization. In every instance the profession has held fast to its history and its ways long after those ways have become anachronistic. The profession seems to repeat the same question in response to every crisis: How can we stay even more the same than we already are? Legal education has fared little better in this mode."

Some key excerpts:

"The short story is that the legal profession is ponderous, backward-looking, and self-preservationist."

"Albert Einstein taught us, 'You cannot solve a problem from the same consciousness that created it. You must learn to see the world anew.' The American legal profession tries to solve problems with the same thinking that created them. It clings to the past and precedent. It 'protects, preserves, and maintains.' It acts as if preserving the status quo will solve all, when in fact it will solve nothing. This backward thinking, the same thinking that preceded the crisis, exacerbates the impact of the crisis."

"Often justified for its 'gatekeeper' function of protecting the public from incompetent lawyers, the profession has lost sight of the function of the bar exam as a gatekeeper. To be a rational gatekeeper, passage through the gate must be related to what is on the other side of the gate—in this instance the practice of law."

"I have met lots of lawyers in my thirty-two years since law school. So far I have never had a lawyer say that she solved a client’s problem solely based on what she learned during a particular Tuesday afternoon session of the Torts or Contracts class. Client problems are more complex than that, and almost always require some measure of synthesis of topics."

"By pressuring students to be prepared for a dizzying number of subjects, the bar exam impedes reforms that would assist students in being prepared to practice law."

"But rather than abandon the opportunity for education in the third year, legal education should produce value in the third year."

"The most advantageous answer for this kind of education is sophisticated experiential education. The legal education system should abandon the term 'skills education,' because its usual meaning has become too narrow and too pejorative in some circles. So, adding to experiential education means more clinics, to be sure, and now-traditional skills courses (legal writing, trial advocacy, negotiation, etc.), but it means far more. This 'far more' should come in the form of sophisticated, practice-setting, sensitive simulation courses taught by a mixture of professors and expert practitioners. In these courses, students are urged to make the transition from student to lawyer. Students continue to learn law, but now do so as lawyers do, with a client’s need as the driver, rather than as students do, with a three-hour exam as the driver. In such circumstances, students transition to the thought processes of lawyer-problem-solver and away from learning for no more reason than acquiring knowledge. This kind of third year could be a year with one foot in the academy and one in the practice. Far from being exclusively skills courses, these courses develop habits of the lawyer’s mind that are not developed in the traditional courses aimed at appellate legal analysis. The third year should be a kind of “'mental pathways’ transition time.'”

(Scott Fruehwald)

Study finds mental fatigue impairs physical performance

This study suggests that if your goal is physical conditioning, you're better off hitting the gym in the morning rather than after a tough day at the office.  For me, a lot of the reason for going to the gym is about stress relief which means I feel like I get more out of it by going after work rather than before.  So your specific exercise goal may dictate whether you become a morning or evening person when it comes to scheduling your gym visits.  From The Journal of Applied Physiology:

Mental fatigue is a psychobiological state caused by prolonged periods of demanding cognitive activity. Although the impact of mental fatigue on cognitive and skilled performance is well known, its effect on physical performance has not been thoroughly investigated. In this randomized crossover study, 16 subjects cycled to exhaustion at 80% of their peak power output after 90 min of a demanding cognitive task (mental fatigue) or 90 min of watching emotionally neutral documentaries (control). After experimental treatment, a mood questionnaire revealed a state of mental fatigue (P = 0.005) that significantly reduced time to exhaustion (640 ± 316 s) compared with the control condition (754 ± 339 s) (P = 0.003). This negative effect was not mediated by cardiorespiratory and musculoenergetic factors as physiological responses to intense exercise remained largely unaffected. Self-reported success and intrinsic motivation related to the physical task were also unaffected by prior cognitive activity. However, mentally fatigued subjects rated perception of effort during exercise to be significantly higher compared with the control condition (P = 0.007). As ratings of perceived exertion increased similarly over time in both conditions (P < 0.001), mentally fatigued subjects reached their maximal level of perceived exertion and disengaged from the physical task earlier than in the control condition. In conclusion, our study provides experimental evidence that mental fatigue limits exercise tolerance in humans through higher perception of effort rather than cardiorespiratory and musculoenergetic mechanisms. Future research in this area should investigate the common neurocognitive resources shared by physical and mental activity.

(jbl).

How to Perpetuate Bad Writing in Law Reviews

At the annual Scribes Dinner at the National Conference of Law Reviews, plain English guru Professor Joe Kimble offered the law review students some tongue-in-cheek advice on how to perpetuate bad law review writing. (Now published in the Michigan Bar Journal) His words reminded me of the well-known quote from Fred Rodell:

There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature--and I by no means except those fancy rationalizations of legal action called judicial opinions--is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style.

I hope Joe made some impression on his audience. I can attest to the difficulty of trying to modernize the dowdy world of law reviews.

(ljs)

The Job Market: Not as Bad as You Think?

Here’s a short video from Bloomberg with an optimistic slant. Most job statistics are based on the number of law grads who have or don’t have jobs 9 months after graduation. If you look at the numbers 12 or 18 months out, you may find that many more have law jobs. Some viewer comments after the video take issue.

(ljs)

How Much Do Public College Presidents Make?

You may be surprised how much executive compensation some of them receive. Here’s the data, compliments of the Chronicle of Higher Education.

(ljs)

Advice on Writing from Famous Authors

Brain Pickings has collected advice on writing from over 30 famous writers, ranging from Kurt Vonnegut to Joan Didion. Lots of interesting and enlightening insights.

(ljs)

Tips for finding a good domain name for your law firm

For any new law grad starting a law firm, whether you're hanging a shingle or you've decided to form a small firm with some law school buddies, here are some good tips for finding and registering an appropriate domain name courtesy of attorney@work.

• It must be short, easy to remember and easy to spell.
• It must conjure up an image of you (as in your smiling face) or of your brand—and by “brand” I mean one or two simple keywords that will lead to you every time: your name, your location, your practice specialty.
• If you buy a domain with an extension other than .com, be certain to investigate who owns the .com version. If it’s a person or business that could be confused with you, don’t buy. If there’s a published website offering the same or similar services as you, you need to find new keywords and the .com to go with them. Otherwise, you’re already starting in a hole SEO-wise. The established site will likely always rank higher than you because it has been live longer using them. (Sometimes the SEO stuff is just plain old common sense.) I’m no lawyer, but when I worked in the litigation department of a trademark/patent firm, the words “confusingly similar” were the ones that I recall never wanting to hear.

Word to the wise; the "confusingly similar" language the author refers to has to do with potential liability for trademark infringement if your domain either bears a visual similarity to a distinctive or famous mark (i.e. you might be cybersquatting under Section 1125(d) of the Lanham Act) or if it causes consumer confusion because the public might mistakenly believe your website is affiliated with the owner of a registered mark under Section 1125(a). You want to make sure you avoid both of those situations when you're selecting a domain name.

(jbl).

 

Educating Tomorrow's Lawyers-- Law Jobs: by the Numbers tm

Educating Tomorrow's Lawyers has uploaded Law Jobs: by the Numbers tm to their website.  This employment rate calculator is "an interactive online tool that gives prospective law students the most transparent and complete law school employment rate information available."  It "empowers prospective students to build, analyze, and compare rates among law schools based on 2011 and 2012 data released by the American Bar Association, all with just a few clicks of a mouse. Users can 'choose their own' formulas to tailor employment rates and prioritize the jobs that are valuable to them." 

You can read the rest of the press release here. 

(Scott Fruehwald)

The difference between "fewer" and "less"

Do you know when to use one versus the other?  Below is a quiz on the difference between "fewer" and "less" courtesy of Lynn Gaertner-Johnston's Business Writing blog.   After you take the quiz, click here for the answers along with some helpful pointers on keeping the two straight.

1. He would like to be able to express himself using fewer/less words.
2. Would you like to receive fewer/less email?
3. This checkout lane is for people who have fewer/less than 15 items.
4. Fewer/Less than 30 percent of participants could identify passive verbs.
5. Next time please give me fewer/less strawberries.
6. Can someone who is fewer/less than 44 inches tall ride this attraction?
7. She had fewer/less commuting problems when she lived in Seattle.
8. I leave for San Jose in fewer/less than two weeks.
9. He had fewer/less than $40 in his wallet when he arrived in New York.
10. I have fewer/less miles on my rewards program than I thought I had.

(jbl).

UPenn’s Proposed Policy on Teaching Online Outside the University

The University of Pennsylvania has issued “for comment” a policy for professors interested in teaching online beyond the confines of the university. Here are the main policy principles:

• A faculty member’s primary professional obligation is to the University. This includes both a primary commitment of time and effort to University activities and a commitment not to compete with the University without advance permission. 
• The scope of this obligation is broad, in that it includes not engaging in extramural activities that conflict with the University’s “outstanding or prospective commitments for teaching and research.” (Policy II.2; emphasis added.)
• With regard to teaching, this has always meant that faculty members may not teach elsewhere without advance permission.
• With regard to faculty business engagements with outside firms or groups, the Policy makes clear that a faculty member may not take on outside assignments that might be “suitable and appropriate activities for execution within the University” (Policy III) without first offering that opportunity to the University and receiving University permission.
• Because of the broad scope of the Policy, it is critical that faculty members make early and full disclosure to their department chair and dean of any situation or proposed engagement that potentially raises a conflict of interest.

  You can read more here. The policy fails to make any mention of a central consideration: money. This proposed restrictive policy limits the ability of professors to supplement their salaries.  To what extent will the university compensate the profs for their online efforts in house? Beyond that question, I think that online education is about to explode so massively that universities will not be able to contain it within the traditional institutional model of academia.

(ljs)

Complaining to Your Boss About a Colleague

Sometimes, a coworker’s conduct or inaction forces you to respond and even bring the problem to an administrator. How do you raise the issue in a professional manner that doesn’t make you look like a whiner? Here’s advice from Nancy Mulloy-Bonn, the Director of ALI-CLE:

1. Your boss’ time is scarce, and she does not relish a visit from a complainer.  
2.  What exactly is your complaint?  
3.  What action are you asking your boss to take?  
4.  Speak in the affirmative, not the negative.  
5.  Focus on facts, not speculation or opinion.  
6.  Speak for yourself and no one else. You
7. Don’t preface your remark with, “Please don’t tell anyone I spoke to you about this.”  
8.  Use your best ammo, and discard the petty stuff.

You can read more here.

(ljs)

Many College Presidents Are Doubtful About MOOCs.

Discussion about MOOCs—Massive Open Online Courses—pervades the education media. I strongly suspect that MOOCs are about to explode in the legal education world. Yet a recent Gallup survey indicates that college presidents have doubts about this educational development (excerpts):

But it turns out that -- when asked privately -- most presidents don't seem sure at all that MOOCs are going to transform student learning, or reduce costs to students -- two of the claims made by MOOC enthusiasts and an increasing number of politicians and pundits.

. . .

On MOOCs, only small minorities of presidents strongly believe that they will improve the learning of all students (3 percent), solve colleges' financial challenges (2 percent) or cut what students spend on higher education (8 percent). Much larger shares of presidents strongly disagree with those statements. Presidents were more likely to see MOOCs promoting creative pedagogies or getting the best teachers in front of more students, but even on those topics, many presidents appear doubtful.

You can read more here.

(ljs)

"The Paradox of Access to Civil Justice: The 'Glut' of New Lawyers and the Persistence of Unmet Need"

This article is by Professor Emily Spieler (Northeastern) and can be found at 44 U. Tol. L. Rev. 365 (2013) and here on SSRN.  From the abstract:

This article, written for a collection of essays by law school deans, reviews the existing data on unmet needs for legal services for both poor and moderate-income people, the distribution of lawyers in the U.S., and current efforts to fill the needs. It then explores possible roles for law schools and argues that access to civil justice and economic survival for law school graduates are intertwined. We know that the vast majority of lawyers in the U.S. work in small community practices where individual and family legal needs are most often addressed. At the same time, there appears to be a market failure between the growing supply of lawyers and the unmet need for legal services in these communities. Current efforts in law schools to expand experiential education, encourage pro bono activities and develop incubators are important, but law schools also need to focus on the costs of legal education, reforming curriculum, engaging fully in access to justice discussions, addressing gaps in our knowledge regarding legal practice and unmet needs, and assisting in developing scalable models to expand access to justice. We might then be able to develop solutions that simultaneously expand the availability of legal services and help to create meaningful work for our graduates.

 (jbl).

New York Lawyers Must Disclose Their Pro Bono Hours and Contributions

From the New York Law Journal:

New York lawyers must disclose on their biennial registration forms how many pro bono hours they provided and the amount of financial contributions they made to pro bono programs during the previous two years.

The new reporting requirements of Part 118 and Rule 6.1 of the Rules of Professional Conduct were approved by Chief Judge Jonathan Lippman and the presiding justices of the Appellate Division's four departments on April 23 and went into effect yesterday (See Announcement).

Lippman's Task Force to Expand Access to Civil Legal Services recommended increasing the voluntary pro bono goal for lawyers in the state to 50 hours a year from 20 (NYLJ, Dec. 7, 2012). That proposal was also implemented yesterday.

Sounds like the Court is getting serious. Will other jurisdictions follow suit?

(ljs)

Have you heard about the ReInvent Law Lab?

The ABA Journal Blog's "New Normal" column today features a profile of two Michigan State law profs who have founded something called the ReInvent Law Laboratory which seems to be part think-tank, part law school curriculum reform initiative and part CLE.  What ties these projects together is the common goal of helping both law students and practitioners prepare for the dramatic changes presently overtaking the legal profession.  One of the more intriguing ideas floated by the ReInvent Law Lab profs is the development of a law school course that teaches students entrepreneurial skills so they can think of innovative ways to better deliver legal services.  Here's a link to the ReInvent blog where you can sign up for a newsletter and here's an excerpt from the ABA post that helps explain what it's all about.

Greetings from ReInvent Law, our law laboratory devoted to technology, innovation, and entrepreneurship at Michigan State University College of Law. You read that right. We are law professors with a laboratory where we teach technology, analytics, innovation, and entrepreneurship in legal services. We are law professors devoted to training lawyers for the law jobs of the 21st century. And yes, math will be on the exam. This is the New Normal in legal education.

. . . .

Entrepreneurship is one cross-cutting and core component that is often missing in legal education. At most institutions, {law + entrepreneurship} involves law students advising would-be entrepreneurs. While we support such efforts, this conception largely misses significant, emerging opportunities that are being created in the legal market. To this end, we are interested in training lawyers to be entrepreneurs, not merely to advise them. This training is useful for a variety of future pursuits, whether to better understand clients or to embark on one’s own entrepreneurial endeavor. Along with traditional legal training, entrepreneurship pedagogy also can help inspire students to curate new markets for legal services and thereby help fill the vast access-to-justice gap. Many appropriately bemoan the reality that millions in this country go without needed legal representation, but few actually craft scalable solutions to help tackle the problem. Clinics are simply not sufficient. The answer is better regulatory and business models with technology and analytics as core components.

Continue reading here.

(jbl).

Six Skills Every Law Student Needs to Master

From The Careerist.  A very good column. Here are the six skills:

1. Improve your writing.

2. Talk like an adult.

3. Learn to read a financial statement.

4. Hang out with B-School students.

5. Always network in person.

6. Think like a creative problem solver and a businessperson.

(ljs)

Professor Richard Epstein on Legal Education: A Reply

A few days ago, one of my co-bloggers had a post on Professor Richard Epstein’s review of Stephen Harper’s, The Lawyer’s Bubble. In this post, I will comment on Professor Epstein’s remarks on legal education reform.

He argues, "If 50 years ago students could make good use of three years of a law-school education, they certainly can do so in today's vastly more complicated world." If we adopted this attitude to other areas, we would not be using computers or we would still be traveling by horse and buggy. As Professor Epstein acknowledges, the world is more complicated today. Not only has technology created a different world from 50 years ago, we have a much more diverse student body in our law schools. Most importantly, our knowledge of the brain and learning has changed radically in recent years. As one prominent education scholar has noted, "We have learned more about how the mind works in the last twenty-five years than we did in the previous twenty-five hundred." (Daniel T. Willingham, Why Don’t Students Like School 1 (2009)).

Professor Epstein elaborates: "Nonetheless, Mr. Harper charges that academics like me, who are obsessed with high theory, cause ‘institutional inertia’ in law schools and prevent the sort of evolution necessary to gear students up for the 21st-century legal market. The author's recipe for change includes large doses of hands-on instruction on business relations and practice skills. But law schools can't just be "practical training" centers, as Mr. Harper would have them; they must make sure that their students grasp the fundamentals of legal theory and doctrine. Future lawyers must also be capable of connecting law with collateral disciplines ranging from corporate finance to game theory to cognitive psychology."

I agree with Professor Epstein that law graduates must grasp the fundamentals of legal theory and doctrine. However, in attacking "practical training," he fails to understand what most of us in the legal education reform movement are arguing. We want to bring the learning from cognitive psychological studies of education into legal education to make the teaching of law more effective and deeper.

First, as I mentioned in a post earlier this week, knowledge is organized in long-term memory the way we learn it, and it is difficult for one to retrieve long-term knowledge when it is needed for a different purpose. As a group of education scholars have declared, "students performed better when their knowledge organization matched the requirements of the task, and they performed worse when it mismatched." (Susan Ambrose et.al., How Learning Works 48 (2010)). Consequently, because law schools mainly teach students to be appellate lawyers and legal philosophers, lawyers have trouble retrieving and transferring their legal knowledge when they need it for a different task, such as writing a client letter, drafting a contract, or writing interrogatories.

Second, the new approaches to teaching based on the neurobiology of learning reinforces law students’ abilities to remember, retrieve, and manipulate knowledge. Legal education research has shown that students remember things better when they apply their knowledge. This is because when one manipulates knowledge, the neurons in long-term memory where the knowledge is stored are fired strengthening the neurons. In addition, more connections are created between the neurons (synapses) so there are additional ways for short-term memory to retrieve the knowledge.

For example, the best way to learn the doctrine and theory of defamation in a torts class is to go over the material, then after the students understand the principles, have them apply those principles to problems. Every doctrinal class should have a significant problem-solving element so that the students will have a deeper undrstanding of the concepts.

Similarly, classes that are labeled "skills classes" bring about deeper learning of concepts. Skills teachers do not teach skills in a vacuum. Skills must be taught in a knowledge domain, such as civil procedure or fair use. I have used personal jurisdiction problems several times in my legal writing classes. After they were done with the assignment, my students frequently told me that they understood personal jurisdiction much better than they did other civil procedure concepts that they learned in their doctrinal class.

Other skills classes also strengthen and deepen doctrinal knowledge. Learning to write interrogatories involves much more than being able to follow the format. To write effective interrogatories, one must be able to understand doctrine well enough to be able to elicit the answers (factual knowledge) necessary to win a case. I would wager that those who can write effective interrogatories have deeper knowledge of a field than those who can just do well on an exam on that field.

There is no reason to misunderstand what the legal education reformers are saying. For example, Michael Hunter Schwartz has written a series of articles and books on legal education and how to apply the new principles in law school classes. (E.g., Michael Hunter Schwartz, Sophie Sparrow, and Gerald Hess, Teaching Law by Design (2009)). I have posted drafts of two articles on SSRN; Teaching Law Students How to Become Metacognitive Thinkers and How to Become an Expert Law Teacher by Understanding the Neurobiology of Learning. Also the theory in this post comes mainly from three easily-readable books on education: Daniel T. Willingham, Why Don’t Students Like School (2009); Susan Ambrose et.al., How Learning Works (2010) and Duane F. Shell et. al., The Unified Learning Model (2010).

Richard, as you may remember, a couple of years ago, we had an e-mail exchange where we both agreed that recent learning in cognitive psychology could illuminate how we understand legal theory and jurisprudence. I believe that the same applies to legal education.

(Scott Fruehwald)

Time magazine reviews "The Lawyer Bubble"

A few days ago we posted an excerpt of a fairly harsh review of Steven Harper's new book The Lawyer Bubble courtesy of the Wall Street Journal.  Harper, as you may remember, blogs at The Belly of the Beast.  Today comes a more favorable review via Adam Cohen at Time magazine. 

Is There a Lawyer Bubble?

A new book by a former litigator at Kirkland & Ellis, one of the nation’s largest law firms, has delivered a frisson to the already rattled legal profession. In The Lawyer Bubble: A Profession in Crisis, Steven J. Harper argues that legal jobs are disappearing not because of short-term economic fluctuations but because of powerful long-term trends. 

. . . .

Harper begins his case with a basic and troubling set of facts: roughly 45,000 law students graduate each year with an average of more than $100,000 in debt — and only about half of them will find long-term, full-time jobs that require a legal degree. Even for graduates who get law jobs, he argues, the legal world is changing fast. Law firms that once prized professionalism and collegiality, he says, are increasingly operating like typical bean-counting businesses. And many law graduates are finding work only as “contract attorneys,” which often means doing document-review drudgery for low pay.

The decline in the market for lawyers is being driven by an array of forces. For some time now, but particularly since the economic downturn of 2008, corporate clients have been less willing to sign off on hefty legal bills. They have increasingly been balking at the top hourly rates of $1,000 that some partners charge — and at costly expenses, ranging from air travel to sushi dinners to copying charges.

And as a result of globalization, an increasing share of American legal work — particularly more by-the-numbers assignments, like document review — is being shipped overseas. Lawyers in India and other lower-wage markets are willing to do the work for a fraction of what American law firms would charge. Taking away even more of this work: newly sophisticated legal software that can do “document review” and other tasks for which lawyers were once needed.

. . . .

Harper’s big-picture argument is undoubtedly correct, and it is a real cause for concern. Bar associations and legal academics have begun talking about how the profession should adapt — discussions that are long overdue. The biggest problem with The Lawyer Bubble is not the warning it is sounding but its title; unlike tulips and other speculative bubbles in the past, lawyers will always be a necessity not a fad. But then, The Very, Very Challenging Job Market for Lawyers doesn’t have the same ring to it.

Continue reading Mr. Cohen's review here.

(jbl).

An Accurate Summary of 1L Classes

An Accurate Summary of 1L Classes

Humorous, I hope. Maybe the bar review version. Please click here. (contains a few vulgar words)

(ljs)