Thursday, October 6, 2016
The answer may be yes.
The court in Newegg Inc. v. Ezra Sutton, PA (CV 15-01395 TJH C.D. Cal. Sept. 2016) (here), faced some interesting facts. Boiled down, a lawyer representing a co-appellee of Newegg at the Federal Circuit copied a substantial portion of a draft brief written by a lawyer for Newegg, and filed it.
According to news reports, after that, the lawyer withdrew that brief and filed a shorter one which, allegedly, still was based substantially on Newegg’s draft brief. Newegg then registered copyright for its brief after they were filed, covering both the draft and final brief. (My mind wonders… if you register copyright on a draft brief, what’s the scope of waiver?) Then Newegg sued the lawyer for copyright infringement.
Wednesday, October 5, 2016
From the Murtha Cullina LLP blog, here’s an account of a recent Connecticut case:
In that case, the defendant bank owned a piece of residential property, and had the property listed with a real estate agent. The plaintiffs owned an adjacent parcel of land. The plaintiffs claimed that there was a tree located on the bank’s property that was decayed, dangerous and in an unsafe condition. The plaintiffs further alleged that they gave notice of the condition to the real estate agent, who later came to the property to photograph the condition. Thereafter, the tree fell onto the plaintiff’s property destroying their tool shed and all of its contents. The plaintiff brought suit asserting two claims: negligence and nuisance.
But what happens when that tree falls, causing damage to the neighbor’s property? Is the bank liable?
The bank moved to strike the complaint on the grounds that Connecticut does not recognize causes of action between private landowners for damage claims attributable to a falling tree where the tree damages private property. Citing the Restatement (Second) of Torts, the bank argued that the general rule is that there is no such liability between private landowners for damage caused by natural conditions. The Bank also noted that the Connecticut Legislature has attempted – but thus far failed – to pass legislation that would create liability between adjoining landowners for removal of trees as further evidence that Connecticut does not yet recognize the plaintiff’s claims.
The bank won. However, in other jurisdictions, you may find a different holding. The case is Corbin v. HSBC Bank USA, N.A., (June 3, 2016) (here).
You can read more here.
The Florida Bar recently released results for the July 2016 bar exam. One figure stuck out: Florida International University placed first with a 88.8% pass rate for first-time takers. This compares to an overall pass rate of 68.2%. Florida's marque bar schools, Florida and Florida State, scored 78.6 and 78.8 respectively. How did a law school ranked 103 in U.S. News beat out higher ranked law schools? Through its Academic Excellence Program.
Here is a program summary:
"FIU Law’s Academic Excellence Program provides students with resources to help them succeed in law school, pass the bar examination, and develop strong practice skills. Starting in each student’s first semester, the AEP acts as an extended orientation detailing academic expectations and introducing students to the methods used on law school examinations. The principles at the heart of the program include contextualization (i.e. that all skills are learned in the context of students’ doctrinal classes), self-regulated learning (i.e. that students must monitor their own learning to ensure success), and formative assessment (i.e. that quality feedback enhances learning)."
As I have noted many times on this blog, general education research has demonstrated that these approaches are key to better student learning.
Louis N. Schulze, Jr., Assistant Dean and Professor of Academic Support, has written about the program:
"[O]ur AEP intentionally employs certain specific methods. But these methods are well outside the orthodoxy in terms of measures usually adopted to improve students’ law school success and impact bar results. We don’t focus on how to change our teaching, how to reteach doctrine, or how to give students more of some supposed cure-all. We have not transformed into a 'bar prep school.' Instead, we began teaching students how to teach themselves." (here)
He noted, "our program uses educational psychology and cognitive science to give students the tools to thrive academically."
He added, "But empirical studies demonstrate that the orthodox methods defy everything we know from science about how the brain acquires knowledge and develops analytical skills. Rereading is one of the worst ways to encode memory, yet tradition dictates that students study for exams and the bar by reading outlines endlessly. Following another person’s dictates on learning outsources the regulation of that learning and kills the crucial skill of metacognition, yet students blindly follow syllabi and bar prep courses’ one-size-fits-all programs. Relying solely on lectures prevents students from building their own cognitive schema, yet students spend weeks having their minds wired externally. Failing to leverage spaced repetition and forced recall practice makes learning far less effective and efficient, yet many students don’t start testing themselves, if at all, until just days before finals or the bar exam."
In sum, "Our program teaches our students, from day one of law school, how to make more effective learning methods the centerpiece of their studies."
In other words, FIU has succeeded by using the methods this blog and others (e.g, Michael Hunter Schwartz, Best Practices, the Carnegie Report) have advocated for several years: adopt learning methods that have been proven effective by general education researchers.
Congratulation to Professor Schulze and FIU.
Tuesday, October 4, 2016
From the New York Times DealB%k column:
The Constitution of the United States clocks in at 4,543 words. Yet a number of lawyers contend that 14,000 words are barely enough to lay out their legal arguments.
That’s the maximum word count for briefs filed in federal appellate courts. For years, judges have complained that too many briefs are repetitive and full of outmoded legal jargon, and that they take up too much of their time.
A recent proposal to bring the limit down by 1,500 words unleashed an outcry among lawyers.
“There are cases where the facts are complicated, and where areas of the law are complicated,” said Nancy Winkelman, a partner and appellate lawyer at Schnader Harrison Segal & Lewis in Philadelphia, and president of the American Academy of Appellate Lawyers.
The academy, which includes Chief Justice John G. Roberts Jr., who is known as a premier appeals brief craftsman, argued against a reduction before an advisory committee considering the change to the federal rule.
And lawyers in criminal, environmental and securities law insisted that briefs’ lengths should not be shortened because legal issues and statutes are more complex than ever.
As a result, the new word limit — which takes effect on Dec. 1 — will be 13,000 words, a reduction of 1,000 words. And appellate judges will have the freedom to opt out of the limits.
The new limit may not provide much relief for judges deluged with verbose briefs.
. . . .
Continue reading here.
And it’s not the only school to do so. From the Washington Post:
The university is opening a food pantry to help students who are hungry and low on funds obtain free food, seven days a week, no questions asked.
The Store, as GWU calls it, is part of a growing national movement to combat hunger among college students. Advocates say hundreds of campus pantries are distributing free food around the country, a
“A lot of schools are asking the question, ‘Do we have food-insecure students?’ ” said Clare Cady, co-founder of the College and University Food Bank Alliance. But she said that sometimes “image, risk and politics” prevent schools from taking action.
The alliance has 361 members, up from 15 in 2011 and 160 in 2014. Nearly all have active campus pantries. Among its members are Howard and Trinity Washington universities in the District, George Mason University in Northern Virginia and the University of Maryland at College Park.
You can read more here.
Monday, October 3, 2016
This article from Bar Leader Magazine (an ABA publication) profiles emerging partnerships between law schools and state bar associations to produce practice ready grads.
A recent study confirms what some bar associations and law schools have learned through experience: The changing legal market requires that law school graduates have more practical skills and professional attributes, as well as traditional legal training, to be better able to find employment after they graduate.
“New lawyers need some legal skills and require intelligence, but they are successful when they come to the job with a much broader blend of legal skills, professional competencies, and characteristics that comprise the whole lawyer,” says Alli Gerkman, director of Educating Tomorrow's Lawyers, which conducted the survey as part of its Foundations for Practice project. ETL is part of the Institute for the Advancement of the American Legal System.
The survey, to which more than 24,000 practicing lawyers across the country responded, is the first part of an effort by ETL to close the “employment gap” for law school graduates.
“This first phase was about understanding what legal employers need,” Gerkman said. “In the next phase, we want to take those results and work with law schools and legal employers to look at what they’re doing and evaluate whether they have programs in place that are ensuring that their students graduate with these foundations.”
Could this mean an increasing role for bar associations in helping law students gain necessary skills before the JD?
Daniel Webster Scholar: An alternative with a long history
The discussion about focusing more of the law school curriculum on practical skills in order to develop “practice ready” lawyers has been ongoing for years. While there is not universal agreement in the legal community about the need for change, some bar associations have decided to focus more attention on those topics, and have been working with law schools and on their own to help.
One of the longer running efforts is the Daniel Webster Scholar program at the University of New Hampshire School of Law. The program, which includes the New Hampshire Bar Association among its collaborators, offers some second- and third-year UNH law students the chance to combine parts of the regular school curriculum with the DWS version, which focuses on simulations, client interactions, and other work designed to give the students a solid background in handling many basic legal procedures, says John Garvey, DWS director and professor at the law school. Completion of the program functions as a bar exam, so graduates don't need take the traditional bar exam to begin practicing.
. . . .
Continue reading here.
When you’re in our profession long enough, you will receive requests to be an external reviewer of the work of a professor who is up for tenure or promotion. I comply with these requests and usually write two letters each year.
At The Green Bag, Professor Eric Goldman offers his ten top suggestions for writing review letters. I think the suggestions are valuable. You can access them here.
I also have reservations about these letters. The review committee often is sending requests to academics they don’t know. Some academics are thoughtful, objective people, and some are ill informed about the subject area or just mean spirited. Just look at the comments that readers send in to academic blogs. I would not take negative outside letters at face value.
As most of you know, July bar passage results are starting to trickle in, and they are not good. The Albuquerque Journal Editorial Board last week wrote about the poor pass rate in New Mexico. Excerpts:
"This year, the University of New Mexico School of Law started giving the national exam, which is used in about half of U.S. states.
The results weren’t pretty. The number of students who passed the exam on their first try (68 percent) in July was down 13 percentage points compared to July 2015 (81 percent) on the old state exam. Those who failed were disproportionately minorities and women. None of the 14 Native American students who took the test passed."
"The law school’s two deans – another arrangement rather unique to New Mexico – said, in a letter to alumni and other people associated with the school, that some other states that adopted the test also saw pass rates drop as well. But Arizona, which adopted the test in 2012, was not one of them. And Colorado’s pass rate dropped slightly from 2012 to 2015."
"In their letter, co-deans Sergio Pareja and Alfred Mathewson said the new exam will be studied to see what changes the school needs to make to boost the first-time pass rate to 80 percent by 2018. They also set a goal of having 85 percent of students pass within 18 months."
"There already are cries to abandon the uniform exam. That would be the wrong thing to do and an admission that we just can’t compete.
The question is not whether the test is too hard, but whether the law school needs to adapt to prepare its students with the uniform exam in mind."
"The deans are right to take this approach, and the suggestion by Regents president Rob Doughty, also a UNM law grad, that the school should refocus its efforts on fundamentals is a good one."
"Figure out what’s missing and fill in the holes.
That also means paying special attention to minority students and working with the legal community to prepare them."
Going back to fundamentals is the right approach, but what does going back to fundamentals mean? Luckily, there is a mountain of research on how learning can be improved both in general education scholarship and in legal education articles.
As I have mentioned here before, legal education reform must begin with the first year because the first year lays the foundation for the rest of law school.
First, law professors must stop hiding the ball; law teachers need to teach legal reasoning explicitly. (See my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013) here). Next, law professors need to do problem solving exercises in class; active learning helps students retain knowledge, and it helps them develop the ability to retain knowledge. (See chapter nine of my legal reasoning book.)
Second, first-year professors need to provide their students with frequent formative assessment--critical feedback. One way to do this is to have problem-solving exercises at the end of each chapter or unit. Newer casebooks are including such exercises. I especially recommend the Carolina Academic Press Context and Practice Series.
Third, law schools need to teach students about metacognition and introduce them to better study habits. (here)
Finally, law schools need to find a way to have smaller classes and to give students more individual attention.
The above will not result in a 100% bar pass rate, but education research has demonstrated that active learning significantly increases learning and problem-solving ability. We can't keep relying on nineteenth-century teaching methods.
Sunday, October 2, 2016
Deborah Burand (NYU) and Anne Choike (Michigan) have constructed a poster giving a visual example showing how a physical space can enhance learning goals and pedagogy.
To access the poster, please click here. Then, in the upper right hand corner, click on view/open.
Saturday, October 1, 2016
In Pennsylvania, state judges must retire at age 70. This November, voters will encounter a ballot proposition that would raise the age cap to 75. Its wording asks voters only if they approve requiring judges to retire at 75. Advocates of the proposition want the ballot’s wording to include additional information. They want it to explain that the current retirement age is 70 and that voters are being asked to extend it by five years.
The Pennsylvania Supreme Court has refused to order the ballot proposition to include this information.
The controversy raises an interesting question: How must context should a proposal include? You can read more here at the Philadelphia Inquirer.
The plaintiffs have refiled in the intermediate appellate court (Commonwealth Court).
Friday, September 30, 2016
Members of the D.C. Bar's Board of Governors talk about what they wish they knew while in law school, and offer advice on how law students can make the most of their time. Several of the Board members are law professors. Here are a few of their pieces of advice:
Susan Bloch (University of Michigan Law School) Georgetown University Law Center
Bloch, who has the perspective of both as a former law student and now as professor at Georgetown Law, says:
"Remember that everyone else starting in a law program is as confused and anxious as you are.
Read every assignment, be prepared for class, and review your notes after class.
Start outlining early, whenever you finish a chapter.
Look at old exams, but not until the middle of semester;earlier will probably scare you!
Keep an open mind about your future and what to do after graduation—there is more to life than big law firms.
Study groups are useful—if used for studying."
Benjamin F. Wilson (Harvard Law School) Beveridge & Diamond, P.C.
"Do good work, but simply doing good or great work is never enough. Get allies in your corner who will recognize and speak up about your successes.
Develop a second skill. Have something to fall back on for those times when you can't pursue your first passion.
Build a network. You never know when the person sitting next to you may be in a position to be helpful, now or in the future.
Work hard to develop a client base and an independent practice.
Seek to serve your broader community and make time for your family and friends."
You can read more here.
These tips come from HBR columnist Josh Bernoff, author of Writing Without Bullshit: Boost Your Career by Saying What You Mean. Interestingly, Josh is sharing this advice in response to a survey he conducted earlier this year among people who write as part of their job. The survey concluded that most of us overestimate our writing ability. Simply put - our writing is not as good as we often think. These tips are intended to help:
- Challenge yourself to be more concise.
- Identify your bad habits.
- Pair up with another writer
- Build disciplined feedback into your writing process.
And if you'd like to know how to implement these suggestions, you need to click here.
Thursday, September 29, 2016
Ask Not What You Can Do For Your Students; Ask What Your Students Can Do For Themselves by Louis Schulze
Louis Schulze has an interesting post about creating self-directed learners on the Faculty Lounge: Ask Not What You Can Do For Your Students; Ask What Your Students Can Do For Themselves. In it, he explains why students at his law school, FIU, did so well on the Florida bar.
"Our pass rate doesn’t come from what we’ve done for our students; it comes from what we’ve taught them to do for themselves."
"In addition, our AEP intentionally employs certain specific methods. But these methods are well outside the orthodoxy in terms of measures usually adopted to improve students’ law school success and impact bar results. We don’t focus on how to change our teaching, how to reteach doctrine, or how to give students more of some supposed cure-all. We have not transformed into a 'bar prep school.' Instead, we began teaching students how to teach themselves."
"But empirical studies demonstrate that the orthodox methods defy everything we know from science about how the brain acquires knowledge and develops analytical skills. Rereading is one of the worst ways to encode memory, yet tradition dictates that students study for exams and the bar by reading outlines endlessly. Following another person’s dictates on learning outsources the regulation of that learning and kills the crucial skill of metacognition, yet students blindly follow syllabi and bar prep courses’ one-size-fits-all programs. Relying solely on lectures prevents students from building their own cognitive schema, yet students spend weeks having their minds wired externally. Failing to leverage spaced repetition and forced recall practice makes learning far less effective and efficient, yet many students don’t start testing themselves, if at all, until just days before finals or the bar exam."
"Our program teaches our students, from day one of law school, how to make more effective learning methods the centerpiece of their studies."
"The increased use of new pedagogies in legal education is progress, but that progress is a necessary but insufficient condition for improvement. The academy also needs to think less about engineering short-term results using orthodox methods and more about producing life-long students of the law by empowering their use of the science of learning. Asking what our students can do for themselves requires us to cede to them the autonomy of learning so that they can control their own development and forge their own success."
ROSS is a new artificial intelligence software. According to its publicity:
[A]rtificial intelligence is a “system that is able to perform different tasks that you would normally think would require human intelligence.”
While traditional databases yield search results based on the keywords and phrases users input, ROSS does more than identify documents containing specific words. It understands and interprets questions, finds relevant law, and articulates an answer. It even evolves from user feedback.
“The system understands you. It is understanding the intent of your question, and because it understands you, it can continue to get smarter and improve,” [company CEO] Arruda said. “You are no longer working with a static piece of software. It is dynamic. It’s changing, and every time you log into ROSS, it’s smarter than the day before.”
ROSS is commercially available for bankruptcy practices and it will eventually be available for other fields of law.
In the Akron Legal News, lawyers comment on ROSS and artificial intelligence software systems generally:
Justin Alaburda, a partner at Brennan, Manna & Diamond’s Akron office, said that he would consider using artificially intelligent software so long as it performed as well as a human.
“Artificial intelligence is already used for electronic discovery and studies show that in the area of document review, the error rate of human review is higher than reviews performed by a software program that uses predictive coding,” he said. “I admit, however, that when it comes to legal research, my confidence level in the artificially intelligent software would have to be extremely high before I would be comfortable relying heavily on the software.”
James E. “Ted” Roberts, a partner at Roth, Blair, Roberts, Stratsfield & Lodge in Youngstown, said that there are likely limitations on what artificial intelligence can provide for a lawyer. He said it might be difficult to convey the nuance of a case’s facts to a machine and that a lawyer will be needed to apply these facts to law.
“Besides getting the facts of the research, applying those facts then becomes a matter of judgment and opinion and that’s where the lawyer’s education and experience comes in,” Roberts said. “Mechanically, some software can obtain some research, but then it’s going to take the lawyer to interpret it and apply it.”
But Alaburda said that the practice of law will always involve human judgment.
“While technology in the legal profession is continuously improving and evolving, I believe that it is best used in connection with, and not as a substitute for, human judgement,” Alaburda said.
You can read more here.
One of the things that legal writing teachers tell their students is please eliminate unnecessary words.
Here is a headline from today's New York Times:
U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes
I hope you can see that the headline could contain four fewer words. U.S. Just Made It Easier to Sue Nursing Homes
My version says the same thing, but it is easier to read. Someone needs to teach editing in journalism school.
Wednesday, September 28, 2016
From the Washington Post:
SAT scores fell modestly this year for the last high school class to take the old version of the college admission test.
The average total score for graduating students who took the old SAT at least once through January was 1484, out of a maximum score of 2400, the College Board reported Tuesday. That was 12 points lower than the national average for the previous class in a comparable period. The total drop included declines of three points on the critical reading section of the test, four points in math and five points in writing.
What does that result portend for future LSAT results? You can read more here.
New Issue of the Second Draft
The latest issue of this publication by the Legal Writing Institute is now out (here).
Here is the table of contents: (ljs)
President’s Greeting Kim D. Chanbonpin
From the Desk of the Co-Editor-in-Chief Abigail L. Perdue
Legal “Street” Writing Dyane O’Leary
Best Practices in Legal Education: How Live Critiquing and Cooperative Work Lead to Happy Students and Happy
Professors Anna Hemingway and Amanda Smith
The Serial Podcast: Bringing the Real World into First-Year Legal Writing Jessica Durkis-Stokes and Amy Vorenberg
Making It Stick: Using the Science of Successful Learning in Legal Writing Classrooms Craig Smith
Teaching Undergraduates, Teaching First Years Kristen Murray
Teaching Professionalism and How to “Act Professionally” by Coordinating Legal Writing with Professional Development
Written Advocacy Training Throughout a PracticeOriented Curriculum Matthew C. Cordon and R. Scott Fraley
Lawyering Skills and Clinical Cooperation: Teaching Spanish for Lawyers at John Marshall Kim D. Chanbonpin and Sarah Dávila-Ruhaak
Easy Ways to Incorporate Mindfulness in the Legal Writing Classroom Shailini J. George
Legal Writing Professors Without Borders: Exploring the Benefits of Integrated Teaching of Legal Writing, Doctrine, and More Sherri Lee Keene
From the Desk of the Writing Specialist Chantal Morton
News & Announcements
Dean Erwin Chemerinsky: In These Times, Innovation in Legal Education Should be Applauded: The ABA Should Grant Provisional Accreditation to UNT Dallas College of Law
"The lesson from the past several years of unprecedented struggles for many law schools is that this is a time when innovation in legal education should be encouraged.
Unfortunately, it appears that the American Bar Association is doing just the opposite in its treatment of University of North Texas (UNT) Dallas College of Law. The recommendation of the Accreditation Committee of the ABA to deny provisional accreditation to UNT raises disturbing issues concerning how important innovation is being squelched."
"The ABA should grant UNT provisional accreditation and allow it to show that its programs work and that its students can pass the bar. If UNT's law school succeeds in this regard, it should receive full accreditation. It will have demonstrated that this model for a law school is viable. Of course, it is possible that it won't work and despite all the law school does, it will have a very low bar pass rate. I then would understand the ABA denying accreditation, though there is still an argument that these students should have a chance at a legal career."
"I am very troubled by how UNT's law school is being treated. But I am even more concerned about the larger issues concerning the role of the ABA. I support the ABA accreditation process and believe that it helps protect all involved by ensuring a quality legal education from every law school. However, the ABA acts inappropriately when it stifles innovation and does not give law schools with an alternative vision the chance to show they can succeed."
Tuesday, September 27, 2016
Dr.Robert Cialdini, one of the leading experts on persuasion and author of the wildly popular book Influence: The Psychology of Persuasion, has just published his latest book, Pre-Suasion: A Revolutionary Way to Influence and Persuade which some are calling even better than his most well-known work. From the publisher's description:
The author of the legendary bestseller Influence, social psychologist Robert Cialdini shines a light on effective persuasion and reveals that the secret doesn’t lie in the message itself, but in the key moment before that message is delivered.
What separates effective communicators from truly successful persuaders? Using the same combination of rigorous scientific research and accessibility that made his Influence an iconic bestseller, Robert Cialdini explains how to capitalize on the essential window of time before you deliver an important message. This “privileged moment for change” prepares people to be receptive to a message before they experience it. Optimal persuasion is achieved only through optimal pre-suasion. In other words, to change “minds” a pre-suader must also change “states of mind.”
His first solo work in over thirty years, Cialdini’s Pre-Suasion draws on his extensive experience as the most cited social psychologist of our time and explains the techniques a person should implement to become a master persuader. Altering a listener’s attitudes, beliefs, or experiences isn’t necessary, says Cialdini—all that’s required is for a communicator to redirect the audience’s focus of attention before a relevant action.
From studies on advertising imagery to treating opiate addiction, from the annual letters of Berkshire Hathaway to the annals of history, Cialdini draws on an array of studies and narratives to outline the specific techniques you can use on online marketing campaigns and even effective wartime propaganda. He illustrates how the artful diversion of attention leads to successful pre-suasion and gets your targeted audience primed and ready to say, “Yes.”