Monday, March 20, 2017
How to Con Black Law Students: A Case Study by Elie Mystal.
"But encouraging African-American students to attend Arizona Summit will not help them achieve their goals. It will hobble them. Going to a law school that doesn’t prepare most of its students to pass the bar is not an “opportunity,” unless “opportunity” means being saddled with debt that you’ll spend the rest of your life trying to pay back."
"For-profit schools like Arizona Summit prey on students with high aspirations but little knowledge about how the postgraduate system really works. Many black students aren’t just the first people in their families to go to graduate school — they are the only people they know in the game. Information passed down from family, friends or mentors is hard to get when you don’t have people in your life who have been there. Too many aspiring black students are trying to piece together education plans based on career fairs and Google searches."
"The best thing any historically black college could do to “disrupt” exclusionary legacies in legal education would be to arm its students with the very information from which they have been excluded, information that would help them get into good schools — or at least keep them out of predatory ones. Anything less is a hustle."
The above is why the ABA needs to set minimum percentages for bar passage. Actually, the Council did last year, but the proposal was rejected by the House of Delegates at the urging of more than 90 law school deans. I ask the question again: how does having minority students fail the bar help diversity in the legal field? As I've said before, my answer is that, if law schools are going to admit students with questionable indicators, they need to concentrate on educating those students once they are admitted. See How to Help Students from Disadvantaged Backgrounds Succeed in Law School.
Sunday, March 19, 2017
In this column from U.S. News and World Report, several law school admissions officers weigh-in on how applicants hoping to increase their chances of admittance can write a resume that gets attention (including an example that helped the author gain admittance to Harvard). One expert consulted for the article advises law school applicants to shape their resume in a way that differentiates themselves from the pack since "one hundred percent of admissions is differentiation." That same consultants says that applicants should also try to find a way to give admissions officers a strong sense of who you are as an applicant. And if you can also demonstrate that you have a commitment to public service as well as a familiarity with the legal system, that's even better. You can read the full column here.
Professor Catherine Baker presents her method: a five point method for organizing your abstract and making it inviting to the conference committee. You can access her advice here. Much of it will seem familiar to those of us who have studied how to write introductions to arguments.
Trial lawyer John Balestriere advises us to layer our writing. I think his metaphor encapsulates what many of us teach. The metaphor may help improve our ability to send our message to students. Here are the high points:
We should write our advocacy writings in layers, summarizing the main points as quickly as we can in early layers and building on the layers in the document.
This means in a typical trial court brief, we should exploit thoroughly the first advocacy layer of a table of contents. If done well, all the reader has to know is your table of contents in order to know your entire argument (if not the nuances of it or the entire story of the case).
In a brief the next layer to exploit is the preliminary statement. By the time the reader is done with that — and hopefully it is only a few pages — the reader should not only know your argument, but some of the key support for it, and the story of the case (told truthfully but from your perspective).
This layering rule doesn’t simply apply to complex memoranda of law which have these discrete sections. It applies to letters, even emails: the first line or two of shorter and less structured documents should state succinctly what you’re looking for and why you deserve it. Then layer as appropriate, but assume your busy clerk or judge or arbitrator may only have time to read the first few sentences of whatever you write.
You can read the full posting here.
Saturday, March 18, 2017
How to respond? At Vitae, we find the varying advice of a variety of professors. The article offers its own advice (here).
My thoughts: I try to abide by the distinction that some professional make between empathy and compassion. Empathizing with a student’s plight rarely improves the student’s coping skills. However, compassion calls for helping the student decide how to solve or cope with a problem. Compassion is more constructive.
From the GreaterGood website (here):
Compassion is not the same as empathy or altruism, though the concepts are related. While empathy refers more generally to our ability to take the perspective of and feel the emotions of another person, compassion is when those feelings and thoughts include the desire to help. Altruism, in turn, is the kind, selfless behavior often prompted by feelings of compassion, though one can feel compassion without acting on it, and altruism isn’t always motivated by compassion.
By the way, this is one excellent website.
Friday, March 17, 2017
Thursday, March 16, 2017
From the Associated Press:
The State Bar of California approved an ethics rule that would subject lawyers to discipline for having sex with their clients.
California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.
The new rule would completely ban sex between lawyers and clients with some exceptions.
As of May 2015, 17 states had adopted a blanket sex ban drafted by the American Bar Association, according to an ABA committee that looked at implementation of the group's ban.
Still, California's proposal was divisive.
You can read more here.
Wednesday, March 15, 2017
In this post, we make a departure from our regularly scheduled programming by way of a guest post by a colleague of mine in the law department at the U.S. Air Force Academy where I've been working for the past year as a visiting professor of law (yes, USAFA has a law department as legal studies is a very popular major here). Our guest blogger, Captain Carman Leone, has served several years in the United States Air Force JAG Corps litigating cases as both a prosecutor and defense attorney. He just finished his first semester as an Assistant Professor of Law at USAFA and offers the following observations about the importance of so-called “soft skills” to success in the classroom.
Applying 'soft skills' learned in the courtroom to the classroom
As a trial attorney, I always believed in the importance of establishing a professional persona in the courtroom. One of mentors, Mr. George J. Lavin, Jr., refers to this as “silent advocacy.” See George J. Lavin, Jr., Silent Advocacy: A Practical Primer for the Trial Attorney (2006). Lavin explains that “silent advocacy involves the continued, steady, unabated combination of your appearance, your demeanor, your professional preparation, and your helpfulness. . .” Id. It is critical to success in the courtroom because your audience, the jurors, are constantly asking themselves: “Do we trust these [lawyers]?; do we even like [them]?; are [they] prepared and do they seem knowledgeable?; are [they] helping us do our jobs?” According to Lavin, a more favorable response to these questions often results in a better result for your client at trial. As a result, I would often poll jurors post-trial to help me assess how they answered these questions about me. Where I fell short, I adjusted my courtroom behaviors.
As I transitioned to the classroom, I was acutely aware of the importance of establishing the right professional persona with my students. I had heard rumors that students could smell inexperience on new faculty. In an effort to hide the stench, I focused on Lavin’s tenets of success. For example, to establish a professional persona on the first day of class, I memorized students’ names before meeting them. Several said that they found this gesture incredibly touching. A powerful start, followed by meticulous preparation for each class, led to a classroom environment where I established mutual trust and respect.
Lavin also taught me the importance of being self-aware and in control of my demeanor. Periodically, students would make off-color jokes, nod off, or speak out of turn. Just as I had to learn to control my facial expressions and visible annoyance following a barbed objection or adverse ruling at trial, I consciously worked on how to respond to these classroom incidents in a positive way that maintained my professional demeanor. This, in turn, established mutual respect.
Having finished my first semester teaching, I have come to appreciate the importance of “soft skills” to successfully communicate with an audience whether it’s a group of jurors I am hoping to persuade or a classroom full of students. While the audience and purpose may be different, I found the fundamentals of success to be the same.
Section 6134, entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” provides:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
The District Court for the District of Columbia found “harangue or oration” to be unconstitutionally vague. The D.C Circuit disagreed:
Employing the tools of statutory interpretation, we hold 40 U.S.C. § 6134 gives a core meaning to both ‘harangue’ and ‘oration.’ This core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct. Thus, the district court erred in striking the terms as void for vagueness.
The Pillsbury Winthrop Shaw Pittman law firm blog (here) explicates:
The DC Circuit noted the “[t]he longstanding principles of statutory interpretation hold that ‘a word is known by the company it keeps.'” It went onto note that “[t]he prohibitions surrounding ‘harangue’ and ‘oration’ demonstrate concern with disruptions of the Supreme Court’s order and decorum.” The prohibition of noises that tend to disrupt the Court’s operations “should illuminate the construction of ‘harangue’ and ‘oration.'” By keeping this concern in mind, the use of “harangue” and “oration” refers “to public speeches that tend to disrupt the Court’s operations, and no others.”
You can access the case, United States v. Brownstein, here.
Tuesday, March 14, 2017
There are the habits of highly effective leaders. There also are the habits of highly ineffective leaders. From Education Week, they are:
Be reactive (not proactive)
There's no end in mind - Everyone in the school is working on their individual goals...if they have one...and the leader doesn't think about the future as much as they keep getting stuck in issues in the present.
My way or the highway
Seek to be understood - Ego first. My way or the highway. Get on board or get out.
Discord - These leaders always seem to be in disagreement with someone.
Efficacy Killers - These leaders are consistently going after new initiatives so their staff feel tired, lost and insecure. They micromanage and look for compliance on all issues.
You can read full explanations here.
Reframing Legal Education Around Professional Identity Formation: Professional Formation as Social Movement By William M. Sullivan
I, along with several others, have been advocating that all law schools include professional identity training in their curriculums. Last month, the Holloran Center at University of St. Thomas School of Law presented a symposium entitled "The Next Steps of a Professional Formation Social Movement." William M. Sullivan spoke at that symposium and published a paper in connection with the professional formation social movement in The Professional Lawyer Volume 23, Number 1. Professional Formation as Social Movement by William M. Sullivan (lead author of Educating Lawyers: Preparation for the Profession of Law). Excerpts:
"Could current efforts to reshape legal education and give more emphasis to professional identity formation be harbingers of a developing social movement in higher education? I want to argue that they should be seen that way. Furthermore, I want to suggest that conceptualizing those efforts as a social movement helps to explain why recent workshops on the formation of student professional identity focused on the creation of core groups have generated so much enthusiasm, energy, and commitment from faculty and staff from several dozen law schools."
"The premise of workshops recently held by the Holloran Center for Ethical Leadership in the Professions and co-sponsored by Educating Tomorrow's Lawyers, is that recent changes in how law is practiced and organized amount to a tectonic shift in the ground beneath legal education. Massive shake-ups in the market for attorneys place new value on educating beginning lawyers who are ready and able to move into the world of practice. To use the business terminology of the hour: this is law's moment of disruption. The Holloran Center, long a thought leader on the critical role of professional formation in the development of effective, service-oriented lawyers, has responded to this disruption through several ground-breaking empirical studies that lay out the goals for positive innovation. They detail the competencies beginning lawyers need (including a foundation of an ethical professional identity) in order to succeed in this changing, much less stable professional environment."
"In short, the Holloran Center research concludes that effective career development requires the cultivation of values and dispositions fully integrated with the mastery of technical skills and professional relationship competencies."
“To effectively serve students in today’s legal milieu, law schools must be organized to help individual students develop a proactive stance toward career success by serving clients and the public well. . . . [A] successful response depends on how well legal educators are able to understand their new challenges as opportunities that can call out innovative adaptation.”
"[P]rofessions are more like the arts than the intellectual disciplines. They are finally about expertise in performance. Systematic rigor, the great value of the university, has an important contributory role in the formation of professionals but it cannot be the final goal."
"Today, however, the need to provide professionals who can think in flexible and innovative ways may portend a shift in that inherited imbalance in the training of professionals. Thanks to studies of how expertise is actually acquired, it has become evident that even in scientific discovery the boundaries between theory and practice are rarely clear or fixed. For example, the crucial expertise of experimental science is passed on in the intimate settings of laboratory work. There the practices, even the personal commitments of senior investigators and their interactions with their students are inextricably bound up with the process of learning."
“Such knowledge is by nature finally an internalized disposition. . . . It is the formation of identity that guides and finally controls what is learned and how it is understood, an insight that has now begun to gain traction in the education of both physicians and lawyers.” (emphasis added)
“The key insight in all this is that meaning trumps information because it shapes how information gets framed. And meaning and identity continue to develop through the student’s interaction with the whole milieu in which learning occurs, with teachers, mentors, peers, and clients. If this is correct, then legal education will need reshaping to emphasize attention to the formative effects of students’ various educational experiences.”
"But if history is a guide, the new focus in legal education on professional identity formation and the creation of core groups of faculty and staff at different schools around the country portend a possible breakthrough moment of just that epochal kind. That would indeed be a tipping point."
Here is the revolution I see from William Sullivan's paper: Law schools not only need to include professional identity formation in the curriculum, they need to frame the curriculum around it. This would indeed be a disruptive innovation, which would create a 21st-century approach to legal education.
Monday, March 13, 2017
When young lawyers decide that Big Law is not for them and decide to open a new practice of business, they may have to face financial realities, not to mention the continuing burden of paying off school debt. Still, they do leave. From Law.com:
The attrition rate [from Big Law] for 2015 was 20 percent, up by 2 percentage points from 2014, according to the NALP Foundation, which reports that 71 percent of all associates who left their jobs in 2015 had been working at their firms for five or fewer years. Law firms with more than 500 lawyers reported a range of 12 percent to 25 percent attrition. (The 2015 attrition rate is equal to total associate departures from Jan. 1, 2015, to Dec. 31, 2015, divided by total associates employed as of Jan. 1, 2015.)
You can read more here.
From the ABA Journal online
A University of Pittsburgh School of Law professor says he was passed over as a guest on a local CBS affiliate news show, because he is Iraqi-American and a Muslim. And in the wake of these allegations William M. Carter Jr., dean of the law school and a constitutional scholar, has said that he will no longer appear on KDKA-TV programming.
Haider Ala Hamoudi, whose academic work centers on Middle Eastern and Islamic Law, was suggested as a guest for KDKA last month, the Pittsburgh Post-Gazette reports, after a producer asked a school spokeswoman for professors to speak on a TV panel about the initial travel ban order issued by President Donald Trump’s administration.
According to Hamoudi, who later contacted the station, the producer asked a school spokeswoman “what I ‘was.’ ” The spokeswoman listed his academic-related titles, Hamoudi wrote in an email obtained by the newspaper, and he says the producer responded that she could not have a Middle Eastern man on the panel.
Kudos to the dean! You can read more here.
On International Women's Day last week, the Legal Writing Institute and the Association of Legal Writing Professors launched an initiative aimed at correcting gender and related disparities among U.S. law faculty. (here) The announcement, called "the “Full Citizenship Project for All Law Faculty,” was based on "the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women." The announcement noted, "The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions."
In reaction to the announcement on the TaxProf, Professor Jason Yackee made two comments there that showed an egregious ignorance of the role of legal writing professors in the academy. This post's purpose is to examine the role of legal writing professors in today's law schools.
(more after the fold)
"There is a wellbeing crisis in the legal field and legal education may be the catalyst." For those of us who have taught at law schools for many years, Professor Austin's statement speaks loudly. She has just posted a wonderful article on mindfulness on SSRN.
Positive Legal Education: Flourishing Law Students and Thriving Law Schools by Debra S. Austin.
"There is a wellbeing crisis in the legal field and legal education may be the catalyst. Law students are the most dissatisfied, demoralized, and depressed of graduate student populations. The Socratic method is infamous for inducing anxiety in law students and law school grades are often determined by a single final exam at the end of a grueling semester. Law students cite competition, grades, and workload as major stressors, and if legal educators ignore their harmful impact, it will likely suppress learning and fuel illness.
Law students start law school with strong mental health and high life satisfaction measures, and within the first year of law school experience a significant increase in anxiety and depression. The impairment in wellbeing continues beyond the first year of law school and into legal practice. A recent study surveyed 12,825 lawyers and discovered that 23% of licensed, employed attorneys identify as problem drinkers, 28% experience depression, and 19% suffer from anxiety. Lawyers rank 4th in suicides among professionals and many recent lawyer suicides are linked to depression. Something bad is happening to law students and the wellbeing crisis bleeds into legal practice.
Lawyers are leaders in business, government, and the legal system, possessing the power to drive social progress, but they are not living up to that responsibility. Law school socializes students to extreme competition and punishing levels of stress which compromise both wellbeing and cognitive capacity. Lawyers shape policy, and when they are educated to believe that competitive enterprises are the most productive, they promote replicating them throughout society. Neuroscience and Positive Psychology research has established that when it comes to solving problems, cooperative endeavors outperform competitive initiatives. The American love affair with competition stifles creativity, hinders innovation, and thwarts social progress. Competition promotes antagonistic behavior, a combative mentality, and the eternal cycle of the never-ending feud, where all energies are spent on the battle with the opposition, and problems are rarely improved or solved. Progress toward a more equitable society will be enhanced when legal education entrepreneurs train lawyer leaders to be divergent thinkers whose focus is on problem-solving.
This article proposes a new field of inquiry called Positive Legal Education that leverages research findings from Positive Psychology, neuroscience, and Positive Education to inspire innovation in legal education and curate a culture of wellbeing in the legal field. Section II of this Article describes the negative impact legal education has on law student wellbeing. Section III explains neuroscience research on habit learning, knowledge acquisition, and the impact of stress on cognition. Section IV details the five Positive Psychology elements required to achieve wellbeing. Section V demonstrates how wellbeing initiatives have improved academic performance and thriving in secondary and college education. Section VI illustrates how law student knowledge-base, legal skill acquisition, and professional identity development can be enhanced with discipline-specific growth mindset and self-efficacy training, and the shift from the grade curve to competency-based grading. Section VII depicts how lawyers can become transformational leaders. Section VIII covers four practices lawyers can undertake to deal with the harmful effects of stress. The article concludes with recommendations for scholars and legal education entrepreneurs who want to transform legal education."
I have advocated for several years that law schools teach professional identity in addition to the ethical rules. I hope Professor Austin's article moves more law schools to offer professional identity courses.
Sunday, March 12, 2017
In case you missed it, check out the results of the IAALS survey on what legal skills lawyers say new law grads need
The Lawyerist blog just Tweeted a reminder about a key survey conducted by DU's Institute for the Advancement of the American Legal System in which the think tank queried 24,000 attorneys across all 50 states and law firms large and small about what legal skills they believe new lawyers must possess. The results, originally released in August and definitely worth reviewing here in case you missed this story the first time around, may surprise you. As IAALS characterizes it, respondents focused not so much on the traditional practical skills that are the focus of so much attention by legal educators these days but instead on personal traits and characteristics like one's work ethic, integrity and resilience. As someone who's been teaching legal writing students for 20 years, I can't say that I find this conclusion unexpected. I've often observed that a student's work habits, openness to constructive criticism and ability to bounce back from setbacks and disappointments tells me more about how that person will ultimately do in my course and beyond than their grades at any particular moment in time (and so far I haven't been wrong about this). That's also what the respondents to IAALS's survey said as well; that most of the mechanics of law practice can be learned on the job as long as the candidate is willing to work hard and has a conscientious attitude. Whether the personal characteristics that contribute to professional success in law can be taught in school or not is probably subject matter for a different study. In the meantime, check out this excerpt from the IAALS survey (with commentary by the Lawyerist):
First, current lawyers don’t care nearly as much that new lawyers have top-notch legal skills as you might think. Sure, things like being good at legal research are important, but not as important as some other things.
76% of characteristics (things like integrity, work ethic, common sense, and resilience) were identified by half or more of respondents as necessary right out of law school, while just 46% of professional competencies (like arriving on time, listening attentively, and teamwork) were identified by half or more as similarly necessary. Legal skills (like legal research, issue spotting, and legal analysis) were identified by half or more of respondents as necessary right out of law school to an even lesser degree than either characteristics or professional competencies. Specifically, fewer than half of the legal skills we asked about—just 40%—were identified as necessary right out of law school.
Why are “traditional” legal skills ranked so low? Because current practitioners believe—and rightly so—that those skills can be acquired over time. Integrity and resilience are a bit tougher for one person to impart to another. What existing lawyers want is what IAALS calls a high CQ–”character quotient.” New lawyers should be well-rounded people that display a blend of what we often call soft skills—empathy, courtesy, diplomacy—and intellectual capabilities. They also need to be able to do the things expected of good employees in any job setting: Be on time. Respond to people promptly. Pay attention to detail.
Access the full study here.
Non competition clauses are a great subject for Legal Writing problems. From state to state, the law varies widely. Drinker Biddle’s Laborsphere blog, offers an article surveying the status of these clauses as they apply to psychologists and psychologists.
The subject is also attractive, because there are legitimate arguments for honoring these clauses fully and also for rejecting them or limiting their scope.
You can read more here.
Saturday, March 11, 2017
From Harvard Law Today:
Starting in the fall of 2017, Harvard Law School will allow applicants to submit either the Graduate Record Examination (GRE) or the Law School Admissions Test (LSAT) to be considered for admission to its three-year J.D. program.
The pilot program to accept the GRE is part of a wider strategy at Harvard Law School to expand access to legal education for students in the United States and internationally. . . .
In recent years, the Law School has taken other such steps, including: conducting interviews via Skype; eliminating the requirement for a “seat deposit” for accepted students; and launching a deferred-admissions pilot program to encourage and accept applications from Harvard College juniors who commit to two years of post-collegiate work experience prior to starting law school.
You can read more here.