Monday, October 13, 2014

Does your legal malpractice policy cover client data breaches?

That's the interesting question raised by this short post on the Law Technology News blog called Is Cyberloss A Physical Loss?  There's Insurance For Everything But Maybe Not Digital Losses.  The author, Canadian lawyer Marlisse Silver Sweeney, spoke with the managing partner at an insurance defense firm who noted that most attorney malpractice policies limit coverage to services rendered.  In the event of a security breach that results in client data loss, a standard malpractice policy might not cover any claims brought by the client.  Apparently insurance companies are aiming to fill some of the gaps raised by digital data losses.  To take another example, general liability policies typically cover only physical losses meaning that lost digital data as the result of a security breach might not be covered.   Some of the new products being offered by insurance companies include things such as “technology errors and omissions liability protection policy,” and “technology umbrella excess liability protection policy.”  I'm not very familiar with the insurance industry or professional malpractice insurance policies in particular but these are obviously issues digital lawyers need to consider when shopping for coverage and in considering client data storage options.

Thanks to Law Technology New I'm a bit wiser.

(jbl).

October 13, 2014 | Permalink | Comments (0)

Should Students Get Paid for Externships?

The current ABA answer is no. According to Interpretation 305-2 of the ABA Standards and Rules of Procedure for Approval of Law Schools, a law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.

Recently, the Council of the ABA Section of Legal Education and Admissions to the Bar reviewed its standards and chose not to change this rule. However, in August, the ABA House of Delegates referred this provision back to the Council for reconsideration.

I believe that students should receive compensation. Law schools and bars are imposing time consuming experiential requirements on students. This trend is a good one; however, it consumes the students’ time and may make it very difficult for students to hold down part-time paying jobs. Given the expenses of law school, compensated externships would provide a way for students to balance their checkbooks. In an ideal world, students would not receive compensation for credit-bearing experientials. However, in this economy and in a world for high law school expenses, we need to compromise with reality.

For a story on this issue in the Student Lawyer, please click here. Click here to watch a video of the ABA House of Delegates debate on Interpretation 305-2. 

(ljs)

October 13, 2014 | Permalink | Comments (0)

Sunday, October 12, 2014

"Changing Markets Create Opportunities: Emphasizing the Competencies Legal Employers Use in Hiring New Lawyers (Including Professional Formation/Professionalism)"

This is a new article by Professor Neil Hamilton (St. Thomas - Minnesota ) and available at 65 S.C. L. Rev. 547 (2014) and here on SSRN.  From the abstract:

To guide legal educators and law students in responding to challenging markets both for entry-level employment and for applications to law schools, this article analyzes empirical research on the competencies that legal employers, the profession itself, and clients are looking for in a new lawyer. The article advances the proposition that law schools can build on an existing strength of helping each student develop knowledge of doctrinal law, legal analysis, legal research, legal writing and oral advocacy to do better at helping each student develop additional important competencies (and have evidence of those competencies) that legal employers, the profession, and clients and value, particularly the professional formation (professionalism) competencies.

The article also helps each student understand the importance of developing transferable skills (or competencies) that equip the student to respond over a career to changing markets for legal services. An overall theme for both legal educators and law students is to view these changing markets as opportunities to grow in new directions and thus to differentiate from competitors.

(jbl).

October 12, 2014 | Permalink | Comments (0)

The 50 Most Impressive Law School Buildings

According to Best Choice Schools, here are the 50 most impressive law school buildings in the world.  Here are the top ten:

10. University of Iowa College of Law, Boyd Law Building: Iowa City, Iowa, USA

9. University of Colorado Law School, Wolf Law Building: Boulder, Colorado, US

8. The School of Law, University of Hertfordshire, Law Court Building: Hatfield, Hertfordshire, UK

 7. William and Mary Law School, Henry C. Wolf Law Library: Williamsburg, Virginia, USA

 6. Sandra Day O’Connor College of Law, Arizona State University: Tempe, Arizona, USA

5. School of Law, University of Leeds, The Liberty Building: Leeds, UK

 4. Southwestern Law School, Bullocks Wilshire: Los Angeles, California, USA

 3. Thomas Jefferson School of Law: San Diego, California, USA .

 2. The School of Law, University of Northumbria at Newcastle, City Campus East: Newcastle upon Tyne, UK

1. Durham Law School: Durham.

Beauty is in the eye of the beholder, or so they say. For the rest, with photos, please click here.

(ljs)

October 12, 2014 | Permalink | Comments (1)

Saturday, October 11, 2014

Here come the "limited licensed legal technicians"

A new article by Professor Elizabeth Chambliss (S. Carolina) discusses the recommendations last January by the ABA's Task Force on the Future of Legal Education that state bars consider licensing non-lawyers to deliver limited legal services as a way of improving access to justice for clients who otherwise might not be able to afford a lawyer.  Professor Chambliss discusses in her article programs begun by three Washington law schools to train legal paraprofessionals who will become eligible to deliver legal services in that state by 2015.  She also discusses similar measures under consideration in three other states including New York and California.  Here's the cite and link to SSRN - Law School Training For Licensed "Legal Technicians"? Implications For The Consumer Market. 65 S.C. L. Rev. 579 (2014) (also available here)- and the abstract is below:

In January 2014, the ABA Task Force on the Future of Legal Education released its report calling, among other things, for limited licensing and the expansion of independent paraprofessional training by law schools. In Washington State, all three law schools are collaborating with community college paralegal programs to design and deliver specialized training for “Limited License Legal Technicians” (LLLTs), who will be licensed to deliver limited family law services beginning in 2015. At least three other states, including California and New York — which together contain nearly twenty-six percent of U.S. lawyers and seventy-six law schools — are actively seeking ways to expand nonlawyer training and licensing in high-need areas such as family law, immigration, landlord–tenant, foreclosure, and consumer credit.

The involvement of ABA-approved law schools in the delivery of paraprofessional training could play a key role in the standardization of titles and training for nonlawyer practitioners — that is, the creation of paraprofessional “brands.” Such standardization could facilitate the development of a national consumer legal market by promoting quality assessment and professional mobilization, on the supply side, as well as consumer awareness of and demand for new paraprofessional roles. 

This Article examines the status of the Washington LLLT initiative and its reception in other states. It argues that, while the Washington model faces strong headwinds in the form of lawyer resistance on the one hand and unregulated competition on the other, law school training for licensed legal technicians is a promising means for institutionalizing a nationally recognized, independent paraprofessional brand, which itself could promote broader consumer access to — and demand for — routine legal services.

(jbl).

October 11, 2014 | Permalink | Comments (0)

Eight Traits of Great Trial Lawyers

After many years on the trial bench , Judge Mark W. Bennett   identifies those eight traits:

During my time as a federal trial court judge, I have identified—and this Article will discuss—eight traits of highly effective trial lawyers: (1) unsurpassed storytelling skills, (2) gritty determination to become a great trial lawyer, (3) virtuoso cross examination skills, (4) slavish preparation, (5) unfailing courtesy,(6) refined listening skills, (7) unsurpassed judgment, and (8) reasonableness. By mastering these, one can become a feared and admired trial lawyer.

 You can read his article here: Eight Traits of Great Trial Lawyers: A Federal Judge’s View on How to Shed the Moniker 'I Am a Litigator' also published in Review of Litigation, Vol. 33, No. 1, 2014

 (ljs)

October 11, 2014 | Permalink | Comments (0)

Friday, October 10, 2014

Happy Birthday to us!

Today the Legal Skills Prof Blog is 4 years old.  Thanks to my great and dedicated co-bloggers Lou and Scott and all our loyal readers.

4yearcake

(jbl).

October 10, 2014 | Permalink | Comments (0)

Indemnity Clauses: An Exercise in Identifying Ambiguities

In the Michigan Bar Journal, attorney Jeffrey Ammons offers a column that could easily be turned into a law school class hour. In his article,  Indemnification: Banish the Word!,  he identifies the many ambiguities that often plague standard  indemnity clauses and offers a list of questions that the lawyer should ask in drafting a new clause.

In class, a professor could work through the standard clause’s infirmities and then task students  to draft a new one. Here is the article.

(ljs)

October 10, 2014 | Permalink | Comments (0)

Thursday, October 9, 2014

Boston College Law School opens new "Center for Experiential Learning"

Below is the school's press release.  You can visit the website for The Center for Experiental Learning here.

Boston College Law School is proud to announce the opening of its new Center for Experiential Learning.  Established in the renovated Smith Wing of the school, the Center, a signature initiative of Dean Vincent Rougeau, now serves as the hub for all of the school’s practice-focused programs and innovative teaching offerings.  The Center provides space for all of the law school’s clinics, including its international programs, and is home to the school’s expanding externship and judicial placement program.  The Center also includes the school’s wide selection of Advocacy Programs.  In addition, the “Innovation Lab” at the Center will nurture new or revamped classroom courses and hybrid practica where faculty members can effectively meld theory and practice in the essential doctrinal courses and seminars our students take.

The mission of the Center is to integrate experiential and interdisciplinary learning into all aspects of BC Law students’ education.  Clinical students now work side-by-side not only with students from other clinics, but also with classroom faculty with an interest and expertise in the students’ clinic work.  The Center also connects students and faculty to the broader University.  BC’s Graduate School of Social Work, the Carroll School of Management, and the Center for Human Rights and International Justice each has a presence within the Center’s activities.

While the school has integrated its clinics into the Center, it also maintains a satellite office in Waltham, MA, in the same office where three of its clinics were formerly located.  The Center has also begun a partnership with the Boston College Neighborhood Center in Brighton, MA, to serve clients there.

(jbl).

 

October 9, 2014 | Permalink | Comments (0)

SCOTUS Amicus Briefs: Do They Influence the Justices?

A recent Bloomberg article (here) reports that leading Supreme Court advocates question the worth of amicus briefs. For example:

The value of filing a U.S. Supreme Court amicus brief is falling as a professional U.S. Supreme Court bar grows, Kirkland & Ellis, LLP partner Christopher Landau said at an Oct. 3 press briefing.

When you have competent counsel representing the parties—as most Supreme Court cases do—the need for supplemental briefs espousing additional arguments declines, he said.

He added that there are probably too many amicus briefs filed in most Supreme Court cases.

When the justices see a large stack of amicus briefs, they probably roll their eyes, Landau, who clerked for both Justices Antonin Scalia and Clarence Thomas, said.

There is more value in who files the amicus brief than what's actually in it, he said.

However, another high profile attorney suggests that they may have value if they offer a counterintuitive argument. Also, the Court may be seeing more “true amicus briefs,” that is, briefs filed by experts who have no stake in the case’s outcome.

(ljs)

October 9, 2014 | Permalink | Comments (0)

Illusions of Competence: Using Empirical Research on Undergraduate Study Behaviors to Maximize Law Learning

An important article on metacognition and how students learn:

Illusions of Competence: Using Empirical Research on Undergraduate Study Behaviors to Maximize Law Learning by Jennifer M. Cooper.

Abstract:     

"We all recognize that many incoming law students lack the critical thinking, reading, writing, and study skills required for law study. Empirical research reveals that these students also have “illusions of competence” in their thinking, writing, and study skills. These "illusions of competence" lead to reliance on ineffective and improvised study methods like rereading, cramming, and rote memorization.

Study strategies and habits are better predictors of effective learning and academic success than standardized test scores. Little empirical research exists on effective study skills and behaviors for academic success in law school. However, a wealth of empirical research has been done at the undergraduate level on study skills and behaviors.

Retrieval practice, the testing effect, spaced study, and periodic review are study skills and behaviors correlated with effective learning and academic success. While highlighting, rereading, and cramming are negatively correlated with academic success.
 
This Article summarizes the empirical findings on study skills and behaviors and suggests simple, practical ways to integrate this research into the law school classroom. Law professors (doctrinal, skills, and clinical), law students, and legal administrators will benefit from the research summary and the integration of research findings into the law school classroom."
 
On retrieval: "The majority of educational research has focused on getting information into memory or 'encoding' the information and the effects of encoding on learning.  In order to understand learning, one must understand that retrieval is not just a neutral assessment of one’s knowledge, but the process of retrieval itself creates learning. Retrieval not only produces learning, but may be a more effective learning activity than encoding itself.  Retrieval is not just a read-out of stored knowledge; the act of retrieving knowledge itself creates learning."
 
On the testing effect: "The 'testing effect' is a robust finding that testing a person’s memory enhances long-term retention compared to restudying or rereading the material.  Using a wide range of study materials and tests, the testing effect has been shown to promote learning rather than just assess learning."
 
"Rereading alone does not work. The more times students reread material, the more they believe they have learned it, but the opposite is actually true – the more times students practice retrieving material, the better they actually learn it.  The ‘testing effect’ challenges the assumption that students only ‘learn’ via class lectures, reading, highlighting, and rereading and that testing should only be used to ‘measure’ what students have learned."
 

October 9, 2014 | Permalink | Comments (0)

Wednesday, October 8, 2014

Cardozo Law School launches tech start-up clinic and Data Law Initiative

Cardozo Law School continues to update and revamp its curriculum to focus on more practical skills training following changes announced last July that added more practice oriented courses to the curriculum some of which are jointly taught by faculty and local practitioners.  This time, Cardozo has announced the launch of a tech start-up clinic where students will gain transactional practice experience by helping New York tech companies (more details from the school's website here).  In addition, Cardozo has launched something called the Data Law Initiative which will train students in fields like information governance, e-discovery, data privacy, social media law, and cybersecurity according to the school's website.  Participating students are eligible to earn a certificate in Data Law after completing the requisite course and externship credits.   PreLaw Magazine has some additional details about these  recent additions and updates to the Cardozo practical skills curriculum:

Cardozo revamps curriculum, greater focus on practical skills

 

. . . .

 

“In the new legal landscape our faculty have recognized that aspiring lawyers need more specific skills relevant to future careers in order to be competitive in traditional and emerging fields of the law,” said Dean Matthew Diller. “We owe it to our students to make sure that we do everything we can to tailor their law school experience in order to meet the needs of the rapidly changing legal profession.”

 

The restructured curriculum will be realized through three major changes. The law school will offer professional concentrations in about 12 areas of law. Students who choose to take on a concentration will receive counseling from alumni and faculty mentors. Students will be required to take at least six credits of practical training via clinic, externships or simulations.

 

Additionally, the law school’s winter break will be lengthened in order to host Lawyering Skills Month,”a month full of workshops, simulation courses and other intensive offerings for students. Over 200 Cardozo students participated in Lawyering Skills Month this year but that number is expected to grow now that it has been revamped to have a broader range of offerings.

 

. . . .

You can continue reading the preLaw Magazine story here.

(jbl).

October 8, 2014 | Permalink | Comments (0)

LinkedIn Ranks Universities

Yet another ranking system. LinkedIn ranks schools based on which are launching graduates into desirable jobs in certain fields. The career fields are accounting, design, finance, investment banking, marketing, media, software development, and software development in startups.

See what you think (here).

(ljs)

October 8, 2014 | Permalink | Comments (0)

Tuesday, October 7, 2014

Legal sector sheds 4,600 jobs in September

That makes it the biggest single month loss of jobs in five years according to the Wall Street Journal Law Blog which means you have to travel all the way back to the height of the Great Recession to find worse news.  It also wipes out the job gains for August which, ironically, had been the single largest increase in legal jobs during the past year.  The September losses also means that 2014 is running a legal jobs deficit.  The Wall Street Journal Law Blog has more details here.

(jbl).

October 7, 2014 | Permalink | Comments (0)

Top 25 Universities to Work For

According to Forbes, here are the top 25 universities to work for—based on a survey of employees. The top five, in order, are BYU, Carnegie-Mellon, Clemson, Princeton, and Cornell.

(ljs)

October 7, 2014 | Permalink | Comments (0)

Monday, October 6, 2014

Networking icebreakers for professionals

The successful job hunting strategy is going to involve lots of networking.  There's just no way around it even though the vast majority of people neither like it nor are very good at it.  Walking into a crowded room full of strangers with the goal of making professional contacts can be intimidating at best and at worst it's a downright anxiety provoking experience.  This post from the Business Insider may help a bit insofar as it gives a pretty good list of conversation icebreakers as well as solid advice on the art of good conversation like focusing on the other person's interests rather than talking about yourself.  Working up the courage to approach and knowing how to open is 90% of the battle   After that, it's easy (and even enjoyable).  So here you go - a bunch of suggested topics to open with in bullet form.  You'll need to go to the Business Insider to see the many examples provided there for turning these general topics into actual openers as well as some general tips and advice for working the conversation in an advantageous way.

21 Conversation Starters Professionals Can Use To Break The Ice

 

  • Common event
  • Company/job
  • Business/industry
  • Location
  • Sports
  • Travel
  • Hobbies/interests

 . . . . .

 

Generally speaking, though, when you meet new people, you can be sure they all have one thing in common: self-interest. "One subject in which they're interested and know a lot about is themselves," she explains. "When you approach another person with this point in mind, it makes it easier to start a conversation. The skill is to immediately show sincere interest in them."

 

Conversely, one of the biggest mistakes in starting a conversation is when you try to think of something interesting, clever, or even impressive to say about yourself, rather than drawing that out in the other person.

 

. . . .

 Continue reading here.

(jbl).

October 6, 2014 | Permalink | Comments (0)

Attorney-Client Communications and the National Security Administration

Suppose the NSA were to listen in on confidential attorney-client communications. Surprise: it already does.

From the ABA Journal:

Press reports earlier this year indicating that communications between at least one U.S. law firm and a foreign government had been monitored by the Australian equivalent of the U.S. National Security Agency triggered a series of diplomatic exchanges between the ABA and the NSA, focusing on the extent to which government surveillance will recognize the protections of the attorney-client privilege.

On Feb. 15, the New York Times published a story under the headline “Spying by NSA Ally Entangled U.S. Law Firm.” The article recounted that a top-secret document obtained by former NSA contractor Edward J. Snowden shows the Australian Signals Directorate had monitored communications between the government of Indonesia and an American law firm it retained for help in trade talks with the U.S. government. The Australians did not identify the law firm, but the article noted that Mayer Brown, a global firm based in Chicago, was advising the Indonesian government on trade issues at the time the communications were monitored.

How can lawyers protect their clients’ interests? Here are suggestions from Professor Andrew Perlman, who served as reporter for the ABA Ethics 20/20 Commission. As he admits, there is no perfect solution:

In the meantime, Perlman says, lawyers should follow the revised provisions of Model Rule 1.6 as adopted in their states. “The rule requires ‘reasonable precautions,’ but what’s reasonable is going to vary depending on the circumstances,” he says. Meeting in person with foreign clients is an “extreme option” that “may be desirable in some situations, but it is probably not ethically required.” Another approach, encrypting email, “is not a perfect solution, but it is better than nothing,” says Perlman. “Another option might be best described as the Walter White solution [after the character in the Breaking Bad television series], where you and your client purchase prepaid phones that are used only for lawyer-client conversations.”

You can read more here.

(ljs)

October 6, 2014 | Permalink | Comments (0)

Men Are Overrepresented Among Law Graduates

According to a study by the American Institutes for Research, law is one of the top fields in which men are overrepresented among advanced degree recipients.

Table 1. Top 10 Academic Fields in Which Men Are Overrepresented Among Doctoral Degree Recipients

Academic Field

Doctoral Degrees per 100 Undergraduate Degrees (Men)

Doctoral Degrees per 100 Undergraduate Degrees (Women)

Women's Doctoral Degrees per 100 Undergraduate Degrees as a   Percentage of Men's

Communication Disorders Sciences   and Services

17.6

3.6

20.7

Missions/Missionary Studies and   Missiology

18.3

3.8

20.8

Law

32.4

9.9

30.5

Family and Consumer   Sciences/Human Sciences, General

4.2

1.4

32.3

Teacher Education and   Professional Development, Specific Levels and Methods

1.3

0.5

34.6

Bible/Biblical Studies

1.2

0.5

36.8

Health Services/Allied   Health/Health Sciences, General

8.9

3.3

37.3

Public Administration and Social   Service Professions, Other

16.1

6.3

39.1

Animal Sciences

7.1

2.9

41.2

Mathematics

10.4

4.3

41.5

 

N OTE: For purposes of this study, the J.D. counts as a doctoral degree.

Primary Source of Data

The U.S. Department of Education’s Integrated Postsecondary Education Data System (IPEDS) Completions surveys from 2002–2007 and 2010–2012 served as the source of data on degree recipients for this paper.

You can find the full study here

(ljs).

October 6, 2014 | Permalink | Comments (1)

Sunday, October 5, 2014

The Reader’s Limited Capacity: A Working-Memory Theory for Legal Writers

As I have written several times, I believe that legal education reform should employ knowledge of how the mind works--the neurobiology of learning.  Over the last twenty years, cognitive scientists have undertaken many studies of how humans learn, and educators have used these studies to develop new approaches to teaching.  Several scholars have recently applied this knowledge to legal education.

The Reader’s Limited Capacity:  A Working-Memory Theory for Legal Writers by Andrew M. Carter.  In this article, Professor Carter uses insights from the neurobiology of learning to determine how "to manage the working-memory loads that his or her writing imposes on the reader."  He calls his approach the "Cognitive-Load Theory of Legal Writing."

An excerpt:

"In applying cognitive-load theory to the legal writing process, two guiding principles emerge that firmly ground the concision and economy lesson of my reader-is-a-juggler lecture. First, the legal writer must reduce extraneous load in the interpretive stage by drafting sentences and paragraphs that can be processed automatically, i.e., without the need of dedicated working-memory resources. This allows full executive-attention resources to focus on completing the critical metacognitive functions of the post-interpretive stage. Second, the legal writer must manage the intrinsic load for the reader by chunking sentences and paragraphs that, after elimination of extraneous load, still threaten to exceed the reader’s working-memory capacity."

(Scott Fruehwald)

October 5, 2014 | Permalink | Comments (0)

In Nebraska, newly minted lawyers find jobs in small towns

A new program started by Nebraska State Bar Association called the Rural Practice Initiative seeks to place recent law grads looking for jobs in under-served rural communities (currently 12 of the state's 93 counties have no lawyers).  While the pay is less than city lawyers earn, there are various initiatives aimed at providing mentoring assistance and some loan forgiveness for those willing to move to sparsely populated towns.  And according to this article on the Omaha.com blog, next year will see a couple more initiatives launched to place new attorneys in smaller communities that lack access to legal services.  From Omaha.com:

Wanted: lawyers off Nebraska's beaten path

. . . .

With new financial incentives and expanded opportunities to get a taste of rural practice, public and private-sector officials across the state plan to make an even louder appeal to place more students like Hatfield in Nebraska’s most needy rural communities.

. . . .

 

Starting Jan. 1, 2015, a new program from the Nebraska Commission on Public Advocacy will begin paying participating attorneys up to $6,000 for every year they work in a county with 15,000 or fewer residents.

And come next summer, the Nebraska bar hopes to have greatly expanded its 10-week, paid summer clerkship program that is also part of the Rural Practice Initiative. Thanks to a $15,000 grant from the American Bar Association, the number of clerkships will grow from two or three to 10 or more, according to Sam Clinch, associate executive director at the Nebraska Bar Association.

“If you have a lawyer down the road, that’s fine,” Clinch said. “But if the nearest one is 100 or 150 miles away, it’s an access to justice issue.”

Meanwhile, the public advocacy commission’s Rural Practice Loan Repayment Assistance Program begins accepting applications next month and proposes to give selected attorneys up to $42,000 each in tuition repayment over a seven-year period, said Jim Mowbray, the organization’s chief counsel.

Mowbray and his colleagues primarily work with Nebraska counties to alleviate the costs of legal representation for people who can’t afford it. They also assist public defenders and court-appointed attorneys.

. . . .

You can continue reading here.

(jbl).

October 5, 2014 | Permalink | Comments (0)