Monday, October 30, 2017
Kathleen Elliott Vinson (Suffolk), Writing Lockdowns: A Path to Mindful Writing
As is often said, lawyers are writers. Thus, good writing is critical for success in the law. Yet even the best writers sometimes struggle. The writing process may include peaks and valleys, starting out in the “forest of delusions of grandeur,” and then traveling into “crippling insecurity-ville.”1 Along the way, procrastination and writer’s block may contribute to feelings of being overwhelmed when writing efforts stall and deadlines loom. Layer on the fast-paced digital world of constant multi-tasking and hyperconnectivity to e-mail, social media, and text-messaging, and writers can be left feeling distracted and frazzled while their focus decreases and their stress rises. Now more than ever, writers need to find ways to practice mindful writing.
Mindful writing means focusing on the task at hand, not dwelling on past writing projects or worrying about future ones. It may seem simple enough, but it isn’t easy. Being a mindful writer, focused on the present, is a skill that can be learned with practice, and it pays big dividends in the legal profession.
Sunday, October 29, 2017
In her recent article, Teresa Kissane Brostoff argues that teaching mindfulness (meditation) is a method of giving students an opportunity for experiential learning. Meditation for Law Students: Mindfulness Practice as Experiential Learning, 41 Law and Society Review 157 (2017). From the abstract:
Mindfulness practice combined with simulations involving the interpersonal skills of deep listening, counseling, interviewing, and negotiating satisfies the ABA requirement of experiential learning and offers students a new way to approach lawyering skills.
Students learn to reflect, rather than react, while appreciating the intrinsic value of everyone involved in the interaction. Mindfulness training as experiential learning helps students to be ready to approach their professional experiences with focus, presence, acceptance, and compassion.
By offering an experiential learning curricula that includes mindfulness education, law schools will further demonstrate that they care about the well-being of their students and are taking steps to help them to develop balance in their personal and professional endeavors.
You can access the article here.
Saturday, October 28, 2017
This past August, the National Task Force on Lawyer Well-Being issued its report with 44 specific recommendations for improving the well-being of the legal profession, specifically in light of the problems lawyers face with substance use, addiction and mental disorders, including depression and thoughts of suicide. Here are its recommendations for law schools.
- Create Best Practices for Detecting and Assisting Students Experiencing Psychological Distress.
27.1 Provide Training to Faculty Members Relating to Student Mental Health and Substance Use Disorders
27.2 Adopt a Uniform Attendance Policy to Detect Early Warning Signs of Students in Crisis.
27.3 Provide Mental Health and Substance Use Disorder Resources.
- Assess Law School Practices and Offer Faculty Education on Promoting Well-Being in the Classroom.
- Empower Students to Help Fellow Students in Need.
- Include Well-Being Topics in Courses on Professional Responsibility
- Commit Resources for Onsite Professional Counselors.
- Facilitate a Confidential Recovery Network.
- Provide Education Opportunities on Well-Being Related Topics.
33.1 Provide Well-Being Programming During the 1L Year.
33.2 Create a Well-Being Course and Lecture Series for Students.
- Discourage Alcohol-Centered Social Events.
- Conduct Anonymous Surveys Relating to Student Well-Being
You can access the report here.
Friday, October 27, 2017
Columbia Law School is joining Harvard Law and Northwestern in the growing club of law schools that accept the GRE score for admissions. The change will affect applicants for the fall of 2018, and the school said in a press release that the move was to prepare students to be leaders in the legal profession as well as other fields.
“As part of its ongoing commitment to preparing students to be leaders in the legal profession, as well as other fields such as science, technology, public policy, and business, Columbia Law School will accept Graduate Record Exam (GRE) scores in addition to LSAT scores from applicants to the three-year J.D. program beginning on a trial basis in fall 2018,” Columbia stated on its official website.Columbia said that accepting GRE exam scores as well as the LSAT will allow more candidates to apply.
“The GRE will allow an even broader pool of candidates to apply to Columbia Law School,” Columbia Law wrote. “The GRE is offered frequently in hundreds of locations around the world and is accepted by a wide range of graduate and professional degree programs. This option could be particularly attractive to those whose academic or professional pursuits—such as engineering and the life sciences—have historically not been aligned with the study of law. Encouraging such individuals to pursue a law degree reinforces Columbia’s commitment to fostering an interdisciplinary approach to legal studies.”
You can read more here.
Is this the beginning of a trend? I wonder is anyone has studied the value of the GRE in measuring one’s aptitude for legal studies.
Thursday, October 26, 2017
In a forthcoming issue of the Journal Legal Education (Vol. 67: 2018), Scott Dodson and Jacob Hirsch propose a code of conduct governing the relationship of student law reviews and authors.
The headnotes for the rules are:
- Scope and Authority
- Pre-Submission Journal Disclosures
- Pre-Offer Communications
- Acceptances and Rejections
- Post-Acceptance Conduct
Each rule has subsections and an accompanying commentary.
You can access the article here.
Wednesday, October 25, 2017
I found the best rules for resolving the problem on the Smith Moore Leatherwood firm. First, when you have to deal with grey areas in citation form, pick one solution and stick with it; be consistent. Second, and most important and most practical:
The author of a brief shall use the version of the Bluebook in effect the year the author graduated
from law school.
You can read more here.
Tuesday, October 24, 2017
What does it mean to “brand?” In the commercial world, here is what it means: “A brand is a name, term, design, symbol, or any other feature that identifies one seller's good or service as distinct from those of other sellers” (American Marketing Association).
In our professional world, branding is a way to publicize who we are and what we do:
The original notion of a person as brand isn’t new. Tom Peters wrote about it in a seminal essay titled "The Brand Called You" in the late '90s. But as the web grew and matured, along with the birth and rise of social media, it has become paramount for professionals, students, and, yes, professors to push forth their brand value lest they get lost. In a way, it is a version of the old academic mantra of "publish or perish," but instead of the narrow readership of academic journals, the audience is wide and often unknowable. Basically, it’s the world that is online and on the web.
But how to go about publicizing yourself on the internet? In an article on the Chronicle of Higher Education, Professor Scott Talan offers advice (here). Should you brand yourself?
What does all this get you? Visibility and possibility. Also, more influence and control over your presence on the web. Your brand online. This way, others will know you "exist," and that’s worth a lot (online) these days.
Monday, October 23, 2017
Let me recommend Richard Abel’s book review of Engines of Anxiety: Academic Rankings, Reputation, and Accountability by Wendy Nelson Espeland and Michael Sauder 66 Journal of Legal Education 961 (2017—here).
Professor Abel places US News rankings and their influence in historical and contemporary contexts:
The cozy world of pre- 1970s American legal education, populated by a relatively small number of white men who tended to know one another and acted unselfconsciously (indeed, unconsciously) according to particularistic criteria, has been replaced by a complex system of institutions claiming legitimacy by reference to universalistic, allegedly meritocratic, criteria and populated by a far larger and more diverse membership. Because of these changes, impersonal selection criteria have replaced personal contacts.
Rankings, that is, impersonal selection criteria, he argues, offer a convenient—if unfortunate—criteria for evaluating schools and individuals. Is there any hope for change? His prognosis is bleak. He ends his review in these words:
Jennifer Mnookin, my dean, captured the essential dilemma in an e-mail to the UCLA Law School community in March 2017, taking satisfaction in the improvements of our rankings, both overall and for specific programs, while emphasizing that they “should be taken with several very large grains of salt.” The “U.S. News methodology is, bluntly put, a deeply imperfect measure . . . . Nevertheless, these rankings are closely-watched and influential.” Rankings may indeed be the latest manifestation of Weber’s iron cage—a roach motel where you can check in but can never check out.
From the Best Practices Blog: Cultivating Self-Directedness among Law Students by Benjamin Madison. On self-directedness and professional identity training.
"Self-directedness, in particular self-directed learning, is a skill that students (and lawyers) need. In his book Self-Directing Learning, Malcolm Knowles defines self-directed learning as 'a process by which individuals takes the initiative . . . in diagnosing their learning needs, formulating goals, identifying the human and material resources for learning, choosing and implementing appropriate strategies, and evaluating learning outcomes.' (Malcolm Knowles, Self-Directed Learning 18 (1975)."
"Intrigued by this concept, my colleague Natt Gantt and I surveyed students at a number of schools in two sets of surveys to highlight the significance of self-directedness. . . . The first survey sought from students their top goals leaving law school. One of the top goals, ranking even higher than paying off student loans, was to find meaningful employment. The other survey, of the same schools, asked students to fill in a survey that assessed the degree to which they possess self-directedness. The results showed that most law students are lacking in this quality. We observe in the article that students need to understand—have us 'connect the dots' for them on this point—that if they are going to find meaningful employment, they need to cultivate self-directedness." (survey here)
"In short, the professional identity movement continues. As it does so, its benefits for legal education become even clearer. We only hope that more schools agree and take advantage of the efforts of the working groups seeking to move the ball forward in this important area."
For more on developing self-directedness in professional identity training, see Developing Your Professional Identity: Creating Your Inner Lawyer (2015).
Sunday, October 22, 2017
The answer may be social skills. From Quartz:
New research from the Sutton Trust, a British foundation focused on social mobility, finds that 88% of young people, 94% of employers, and 97% of teachers say these so-called life skills are as or more important than academic qualifications. Perhaps more surprising: more than half of teachers surveyed—53%—believe these “non-cognitive” or “soft” skills are more important than academic skills to young people’s success.
“It is the ability to show flexibility, creativity, and teamwork that are increasingly becoming just as valuable, if not more valuable, than academic knowledge and technical skills,” said Peter Lampl, founder and chairman of the Sutton Trust.
The teachers’ perspective flies in the face of a decades-long movementfrom governments in the US and UK toward increased standards and testing. The more educators emphasize test scores, the more teachers feel hamstrung to focus their teaching on preparing for those tests, which crowds out the space to teach a subject they might love, or to underpin the subject with creative and collaborative projects and lessons to help build social and emotional learning, or character.
You can read more here.
Saturday, October 21, 2017
Recently, the Hon. Victoria A. Graffeo and Lana Ivy presented a webinar “Why It Is Advantageous to Use Appellate Attorneys for Cases on Appeal” hosted by The Knowledge Group. From the Harris Beach firm blog, here are their critical pieces of advice:
Select the Best Arguments: It is important to select the points (usually no more than three) that are most likely to resonate with the judges. Too many issues will weaken your case and potentially lead to questioning that will waste your precious oral argument minutes.
Develop a Theme: Develop a theme that will be of interest to the particular court handling your case. If it is the State’s highest court, think about the policy ramifications of your client’s position. Such courts are not solely interested in the resolution of your case; they are concerned with how the rule in your case will affect future similar cases.
Focus on Policy Issues: Experienced appellate attorneys know to take a broad view of the issues being raised in order to present the issues and the outcome you are advocating in the most persuasive way to the court.
Format for Cases: Avoid the use of long string cites in briefs that break the flow for the reader. If there are several important cases relevant to your point, discuss them in sentence form.
Know the Record: Study the record and keep a list of pertinent record references. Judges will test your knowledge of the record and will expect you to give them specific record references in support of your contentions.
Think, Then Respond: Do not repeat a judge’s question as part of your answer; better to take a second or two to gather your thoughts than to parrot back the inquiry.
Answer Immediately When Asked: Always answer the question presented; do not indicate that you will get to that point later in your argument because you will most likely not reach it and you might alienate that judge.
Keep Your Audience in Mind as You Draft an Appellate Brief: At the trial court level, the brief may not be the heart of your submission. At the appellate level, it is your entire submission. Keep procedural history as simple as possible, and focus on your strongest points. The kitchen sink approach is not a good strategy at the appellate level. Use the correct standard of review and keep the hierarchy of case law in mind. Trial court decisions are generally not very compelling to appellate courts.
Rework The Statement of Facts From the Briefs Below: Do not make the mistake of copying the Statement of Facts from the trial court brief. Include only facts pertinent to the issues on appeal: if the issue is whether a piece of evidence is admissible, the procedure is more important; if the issue is whether there is a question of fact, then facts are more important. Omit dates that are not relevant. Accurately cite to the record. Use the Statement of Facts as an opportunity to shape the story. Keep the Statement of Facts brief and interesting: do not get bogged down in technical jargon and details that are not relevant.
Questions Presented: This is an important section for both Appellant and Respondent – take your time writing it. Do not pass up the opportunity to present your case rather than just stating the issues. Get your audience agreeing with you early. Questions Presented should track your points in the argument section. No Questions Presented are usually required in reply briefs.
Argument: Cite relevant authorities. Argue why the court should reverse or affirm under the pertinent standard, not just why the trial court was right or wrong. Why is it important? What precedent does it set if the Court doesn’t do what you ask? What are the public policy implications?
Friday, October 20, 2017
Here, we’re talking about students who claim they deserve better grades, because they feel entitled to them. Here is an academic definition of “entitlement”:
“a self-centered disposition characterized by a general disregard for traditional faculty relationship boundaries and authority” or it can be described more functionall: “a sense that they [students] deserve what they want because they want it and want it now.”
In the archives of Faculty Focus, we find a six suggestions for dealing with these students. The suggestions come from Lippmann, S., Bulanda, R. E., and Wagenaar, T. C. (2009). Student entitlement: Issues and strategies for confronting entitlement in the classroom and beyond. College Teaching, 57 (4), 197–203. Here are the highlights:
- Make expectations explicit.
- Give students something to lose by negotiating. What the authors recommend is that faculty agree to re-evaluate work but that reassessment may result in the grade being raised or the grade being lowered (or it may stay the same).
- Provide examples of “excellent” work.
- Ask students to make the case first in writing.
- Resocialize students and faculty. “Explain your philosophy of teaching and learning and your focus on student responsibility. … Socialize students into assuming responsibility for their own efforts and their own learning so that they are less likely to blame you for any shortcomings.”
- Institutional responses. The authors believe that institutional climate plays a role in determining how students behave and that certain climates diminish the amount of entitlement students may feel. They use rigorous first-year seminars as an example of how some institutions establish intellectual expectations for students.
For the full discussion, please click here.
Thursday, October 19, 2017
The rules here follow the New York Times Manual of Style. From Geoff Pullam’s posting on the Chronicle of Higher Education:
The worst trouble I have is with a curious principle governing capitalization after a colon. In Britain, what follows a colon does not get uppercased. My early history (I was educated in England) exposed me to too much of the British practice, so despite decades of writing American English, I tend to do this:
The first rule of Fight Club is: you do not talk about Fight Club.
For The New York Times (and a range of other American publishers) that’s an error. The correct version would be:
The first rule of Fight Club is: You do not talk about Fight Club.
However, this example does not violate NYT style:
Fourth rule: only two guys to a fight.
The relevant regulation is interestingly abstract — you can’t even explain it to students unless they know basic grammar. The New York Times Manual of Style and Usage (2015, Page 66) says: “For consistency, capitalize what follows a colon if it is a complete sentence.” Now, this is badly put; what they mean by “complete sentence” is “independent clause” — a clause that could be a complete sentence if you used it on its own. But what’s interesting to me is that the edict cannot be enforced by current word-processing software.
Sounds good to me. You can read more here.
Wednesday, October 18, 2017
A new study has found that college students' reading comprehension improves "significantly" when they read print versus screens. What makes this study somewhat unique is that the researchers tested reading comprehension across a variety of texts that varied in length. Their overall conclusion was that the medium matters.
This new study, which is summarized here at the Business Insider, confirms my own observation having read several empirical studies comparing print to screens. While you can find data to support the proposition that the medium makes no difference when it comes to reader comprehension, the problem is that many of these studies don't control for things like the length or complexity of the text. So, yes, there are studies that find screens have no deleterious effect on student comprehension but when you drill down a bit deeper, it turns out some of these studies tested reading comprehension using very short passages of a page or less. This new study synthesizes the results of several studies that used texts of various lengths to conclude that, overall, the medium makes a difference.
It also reinforces the point that other researchers have made that there's no one-size-fits-all approach when it comes to reading. In some contexts, like browsing the news or reading a popular novel for pleasure, screens have advantages. In other contexts, particularly when the material is complex, print is the superior format. And although this new study found that students say they prefer screens to print, I've also read numerous other studies and polls results that conclude those preferences vary depending on the task at hand. Thus, college students have told researchers that in terms of cost savings, they much prefer digital textbooks but when it comes to the need to comprehend difficult material for class, they prefer traditional books.
After months of speculation, the California Supreme Court announced today that it is keeping 1440 as the minimum passing score for the bar exam. (here) "'The court has reviewed the standard setting study, the State Bar’s Final Report, the amicus letters submitted pursuant to the court’s order of Sept. 14, 2017, and the policy concerns raised in submissions on this issue. Based on that review and balancing all considerations, the court is not persuaded that the relevant information and data developed at this time weigh in favor of departing from the long-standing pass score of 1440,' the California Supreme Court wrote in a letter to Michael G. Colantuono, president of the bar’s Board of Trustees, and Leah Wilson, the organization’s executive director."
"'Although the lower pass rates associated with the recent administrations of the California bar exam have generated concerns, the downward trend in pass rates appears to be consistent with a broader national pattern: statistics published by the National Conference of Bar Examiners disclose that the decline of California’s overall pass rate from 2007 to 2016 mirrors the average 9 percent decline of overall pass rates observed nationally over the same period,' the justices wrote."
From Above the Law, "The California Supreme Court is unwilling to lower the cut score at this time because there are obvious improvements that could be made to law school admissions that would prevent so many graduates from failing the bar exam. The state Supreme Court justice are turning this around on the law school deans who have beseeched them to lower the cut score by instead imploring that they raise their standards." (here)
As I have said on this blog many times before, if law schools want to produce more minority lawyers, they should educate them better by using the latest techniques from educational scholarship. A few law schools are doing this, but not enough.
According to a posting by the Kellogg School of Management at Northwestern, the essential trait is warmth:
There is, however, one simple fact that leaders ignore at their peril: those who demonstrate high levels of “interpersonal warmth” have a better chance at long-term success.
“Warmth is the differentiating factor,” says Loran Nordgren, an associate professor of management and organizations at the Kellogg School. He cites a Zenger Folkman study that looked at 50,000 managers and found that a leader’s overall effectiveness is predicted more by warmth than competence. “If you’re seen as low-warmth, you have something like a 1-in-2000 chance to make the top quartile of effectiveness as a leader.”
The lesson for aspiring business leaders is not to smile more broadly. Instead, Nordgren recommends simply being aware of one’s perceived warmth and taking steps to manage that perception whenever possible.
Thus, warmth alone is not enough. Here is an example from The Simpsons:
Moe, the sleazy, inept bartender, would fall squarely within the low-competence, low-warmth quadrant. Mr. Burns, the oligarch, is high competence, low warmth. Homer, who is basically a well-intentioned guy with an impulse-control problem, might be categorized as low competence, high warmth. The exemplar of good leadership in The Simpsons would be Lisa. “She’s accomplished and intelligent, but also other-focused and empathetic, and she conscientiously advances both sets of characteristics.”
An important point: Not only do you need to have warmth, you need to make sure that others perceive that you are a warm person.
For some advice, please click here.
Yesterday, I listed preLaw Magazine's 20 Most Innovative Law Schools. Today, I am focusing on Valparaiso, which preLaw mentioned for its practical training program.
Here is the description of Valpariso's curriculum from its website:
"Valparaiso University Law School provides a comprehensive study of the foundations of law, an introduction to its substantive areas, and the opportunity to study areas of specific interest. The curriculum focuses on legal analysis, practical training, perspectives on law, legal research, and legal writing."
PreLaw emphasizes Valparaiso's Intro to Experiential Learning Class. Here is the rest of its first-year curriculum:
"THE FIRST YEAR
- Seven-week sessions expedite assessment and feedback
- New courses on the foundation of legal analysis and professional communications taught by senior faculty
- Students engage in live-client contact in the first semester of law school.
LEGAL WRITING AND RESEARCH
Rigorous training in legal writing begins in the first year and extends into the second and third years at Valparaiso Law. This includes not just traditional seminars but courses on appellate advocacy, legal drafting, legal journalism, and subject-matter specific advanced legal writing and drafting courses. Valparaiso Law graduates have a reputation for strong legal writing and research skills, and the new curriculum has embraced and enhanced that strength.
CORE SUBSTANCE & SKILLS
Required Courses: Full-Time First-Year Studies
Fall Semester (Two seven-week sessions, total 14 credits)
100/101 Contracts I & II (full semester) Cr. 2.5 & 2.5
110/111 Criminal Law I & II (full semester) Cr. 2 & 2
131 Legal Research I (full semester) Cr. 1
135 Foundations (first 7 wks.) Cr. 2
145 Legal Communications (second 7 wks.) Cr. 1
170 Torts I (second 7 wks.) Cr. 2
315S1 Professionalism Education Requirement Cr. 0
Spring Semester (Two seven-week sessions, total 16 or 17 credits)
120/121 Civil Procedure I & II (full semester) Cr. 2.5 & 2.5
130 Legal Writing I (full semester) Cr. 2
160/161 Property I & II (full semester) Cr. 2.5 & 2.5
171 Torts II (first 7 wks.) Cr. 2
181 Legal Research II (full semester) Cr. 1
182 Legal Methods (full semester) Cr. 1
MANDATORY for all 1Ls that are on probation or in the bottom quartile of the class at the end of their first semester:
191 Intro to Experiential Learning (full semester) Cr. 1
315S2 Professionalism Education Requirement Cr. 0"
Valparaiso also emphasizes practical training in the second and third years: "Valparaiso Law has long been a stronghold of clinical and externship training. Our practical skills training extends from the beginning of the first semester to third-year practicums, nationally recognized externships, and eight live-client clinics in one of the oldest clinical programs in the country."
Tuesday, October 17, 2017
In the October 2017, Michigan Bar Journal, attorney Chadwick Busk addresses the question. Does “shall” mean “will,” or does it mean “must”? The different meanings obviously have different consequences. To complicate matters, the commentators give divergent advice.
This article, however, gives the best advice. If you want “shall” to create an obligation, define the meaning of “shall” at the beginning o the contract, and be consistent in using the word:
In the end, the best advice in deciding whether to use shall or will in your business contracts may be this: choose one or the other, stick to it, define your selection in the contract as imposing an obligation on the appropriate party, and leave it at that.
You can read more here.
Monday, October 16, 2017
From PreLaw Magazine: The 20 Most Innovative Law Schools.
Technology and Business
Technology and Digital Tools
Access to Justice
Other Innovative Programs
- North Texas
- Mitchell Hamline
I will have more on this article over the next few days.
the summer of ’67
two weeks’ notice
mind your p’s and q’s
check their I.D.’s
These examples illustrate the problem. In many cases, we may not be sure whether an apostrophe is called for. At WordRake, Gary Kinder spells out the formal rules.
In all cases, I try to revise my sentences so that I don’t need the apostrophe and thus escape having to remember what the rule is. Besides, apostrophes often look awkward.
You can access the rules here.