Tuesday, November 10, 2015
Chapter One: Your Personal Identity
The purpose of this chapter is to help students uncover their personal identities. It is important that a professional knows herself before she can determine how she fits into a profession.
I ask the students to look at their childhoods, college years, and who they are today through a series of reflective questions and exercises. I also ask them to rate themselves on their personality and character traits. I have included extended problems concerning how they would handle common moral problems, such as what to do if a friend is in trouble or the morality of cheating.
"As I mentioned in the Preface, a lawyer’s professional identity involves the personal interaction between his or her personal morality and the legal world. This chapter will help you become conscious of your personal identity. In thinking about the questions in this chapter, sit back in a comfortable chair and reflect about the questions and problems. Think hard about yourself; don’t settle for comfortable answers. I know many of these questions are difficult, but you need to be honest with yourself to become a mature adult. Having faults does not make you a bad person. There are no right answers on any of these questions, just honest ones."
Personal Identity Questions: Me Today
1. Do you consciously think about your moral dilemmas?
2. How do you solve moral problems? Do you have a decision-making process?
3. Do you about think how your actions affect others?
4. What is your most important personal value?
5. Do you think about long-term consequences?
1. A friend will die if she doesn’t get a medication. She cannot afford that medication. Is it okay for you to steal the medication from the drugstore (shoplift)? What if you have to rob the store at gunpoint? What if you have to shoot someone? What if you have to steal the medication from someone else who needs it?
2. Write out how you think others view you. What do your parents think about you? What do your siblings think about you? What do your friends think about you? What do your professors think about you?
Monday, November 9, 2015
That's according to the most recent jobs report from the Bureau of Labor Statistics which also revised downward from 4700 to 3800 the number of jobs added to the legal sector in September. To date, the legal sector has added 8500 jobs since this time last year according to AmLaw.com which also notes that at present the total number of people employed in the legal sector is 1,125,800 which is the highest number in two years. Despite the growth, the report at AmLaw also notes several significant law firm lay-offs in recent months. You can check out the BLS raw data for October by industry here in addition to the AmLaw article summarizing those results here.
Here are the TOC and excerpts from the Preface to my book, Developing Your Professional Identity: Creating Your Inner Lawyer:
Table of Contents
1. Your Personal Identity
2. Becoming a Self-Regulated Learner
3. The Attorney-Client Relationship
4. The Lawyer and Society
5. Attorney Advertising and Solicitation of Clients
6. Overcoming Cognitive Biases
7. Attorney Well-Being
8. The Legal Profession and Society
9. My Role in the Legal Profession
10. Advanced Problems
"I want you to think about who you will be as a lawyer–to consciously develop your professional identity. You need to reflect on how you will fit into the legal world. What are the ethics, practices, and conventions of the legal world? How do I fit my personal morality into this world?"
"You may have studied how to apply the ethics rules in a legal ethics class. In this class, you took rules, such as the ABA Model Rules, and applied them to specific situations. You probably had cases or ethics opinions to guide you. But, you did not usually have to consider general morality or your personal morality in your evaluation.
Professional identity is more than knowing how to apply ethical rules. It is personal; it involves the inner you (your moral compass)."
"It is not that learning the rules and how to apply those rules is not important. But, being a lawyer involves much more. Being a lawyer involves situations that do not clearly fall within the rules. Being a lawyer requires judgement and creativity. A lawyer is a legal problem solver."
"In sum, professional identity is a lawyer’s personal morality, values, decision-making process, and self-consciousness in relation to the practices of the legal profession (legal culture). It provides the framework that a lawyer uses to make all a lawyer’s decisions."
I have mainly written this book for law students so that they can start to develop their professional identities before they become lawyers. For too long now, legal education has focused on learning to think like a lawyer and memorizing legal rules. It is time to learn how to be a lawyer.
This book can be used as either an independent study text or a classroom text. You can easily read it without the coaching of a professor; it is set up like a self-help book. It does contain certain precautions on when not to read a section if that section is going to be used for classroom discussion.
I intend that you work through this book slowly. A great deal of the pedagological materials are reflection questions. These questions are meant to get you to think deeply about who you are, what the legal profession is, and how you will fit into the legal profession. There are generally no right answers to these questions; I just want to make you think. Always be honest with yourself when doing the materials in this book.
The one agenda in this book is to help you develop your professional identity. I am not trying to impose an ideology upon you. There are many different types of “good” lawyers. My book does require you to think about your deepest beliefs and question them."
"To Law Professors
You can use this book as a text in a professional identity or legal ethics class. It is set up so that the students will know when they should wait on reading material before class discussion. It is also set up in the manner of a self-help book so that students can work through materials not covered in class on their own."
“Think outside the box.” “Brainstorm” “See eye to eye” These are a few of the idioms that may be new to students from other countries. Middlebury Interactive has constructed a pdf poster on “9 expressions that every middle schooler should know.”
Our international law students should know them as well. To access the poster, please click here.
Richard Susskind is the author of two prescient and very influential books called, respectively, The End of Lawyers and Tomorrow's Lawyers that predicted changes in the way legal services are dispensed resulting from technology, off-shoring and the commodization of routine legal tasks. His new book called The Future of the Professions: How Technology Will Transform the Work of Human Experts, is available now in electronic format from Amazon but not due in hard copy from Oxford Press until next month. In the book, Mr. Susskind revisits some of his earlier themes but this time he prognosticates about the affect of technology on many white collar professions in addition to lawyers. At the ABA Journal's Legal Rebels column, Paul Lippe calls it Susskind's best book to date (you can read Mr. Lippe's review here). The following is the summary available from Oxford Press:
This book predicts the decline of today's professions and describes the people and systems that will replace them. In an Internet society, according to Richard Susskind and Daniel Susskind, we will neither need nor want doctors, teachers, accountants, architects, the clergy, consultants, lawyers, and many others, to work as they did in the 20th century.
The Future of the Professions explains how 'increasingly capable systems' -- from telepresence to artificial intelligence -- will bring fundamental change in the way that the 'practical expertise' of specialists is made available in society.
The authors challenge the 'grand bargain' -- the arrangement that grants various monopolies to today's professionals. They argue that our current professions are antiquated, opaque and no longer affordable, and that the expertise of their best is enjoyed only by a few. In their place, they propose six new models for producing and distributing expertise in society.
The book raises important practical and moral questions. In an era when machines can out-perform human beings at most tasks, what are the prospects for employment, who should own and control online expertise, and what tasks should be reserved exclusively for people?
Based on the authors' in-depth research of more than ten professions, and illustrated by numerous examples from each, this is the first book to assess and question the relevance of the professions in the 21st century.
Sunday, November 8, 2015
Should Professors Carry Guns to Class?
From VITAE, here are the comments from a number of professors, pro and con.
As for me, the answer is no. In stressful situations, people, including profs, get nervous and may shoot when they shouldn’t. Too risky.
Developing Your Professional Identity: Creating Your Inner Lawyer by E. Scott Fruehwald (2015).
"Who will I be as a lawyer? This is the most important question any law student can ask. Yet, in traditional legal education, this question rarely comes up. The purpose of this book is to change this.
Professional identity is a lawyer’s personal morality, values, decision-making process, and self-consciousness in relation to the practices of the legal profession (legal culture). It provides the framework that a lawyer uses to make all a lawyer’s decisions.
This book takes a variety of approaches to help you develop your professional identity. Chapter One asks you to take a close look at yourself by asking questions about your childhood, your college years, and who you are today. It is important to know who you are before you can fit into a profession. Chapters Two (Becoming a Self-Regulated Learner), Six (Overcoming Cognitive Biases), and Seven (Attorney Well-Being) give you the tools you will need to develop your professional identity. Chapter Two introduces you to “practical wisdom,” an important approach to understanding and solving ethical problems. Chapters 3, 4, and 5 deal with professional identity within certain topics–the attorney-client relationship, the lawyer and society, and attorney advertising and solicitation of clients. Chapter Eight presents the legal profession’s and society’s views on lawyers and the legal profession. Chapter Nine focuses on your role as a lawyer. It asks you what area of law you want to practice, how you will deal with clients, your place in the legal profession, standards of civility in the legal profession, and working with subordinates. Finally, Chapter Ten contains a variety of extended problems to help you further develop your professional identity."
Because I have self-published this book to keep the cost down, I don't have any review copies. However, I have uploaded a sample chapter to SSRN here. Also, I will be discussing the unique aspects of this book over the next few weeks on this blog.
Saturday, November 7, 2015
Journalist Martin Snapp (also my college classmate) finds the slogans of today’s Presidential candidates to be pretty lackluster. He compares them with these favorites:
"Tippecanoe and Tyler Too" (Harrison 1840), referring to his victory at the Battle of Tippecanoe. His running mate was John Tyler.
"Keep cool with Coolidge." (Coolidge 1924)
"I'm just mild about Harry." (Dewey 1948)
Occasionally we have had dueling slogans, for instance:
"Ma, ma, where's my pa?" (Blaine 1884), referring to Grover Cleveland's admission that he had fathered an illegitimate child.
"Gone to the White House, Ha, Ha, Ha!" (Cleveland 1884)
"No third term." (Willkie 1940)
"Better a third termer than a third rater." (FDR 1940)
"In your heart you know he's right." (Goldwater 1964)
"In your guts you know he's nuts." (Johnson 1964)
And the best presidential campaign slogan of all? Easy: "I like Ike" (1952). Short, sweet and simple. And it rhymes!
You can read Marty’s full column here (Nov. 1, 2015).
In case you didn't catch this a few days ago on the TaxProf Blog, it's a new article by Professor Lucy Jewel (Tenn.). It will be published shortly in volume 31 of the Columbia Journal of Gender and Law but is available now for download on SSRN here. From the abstract:
The longstanding categorical distinction that elevates doctrinal teaching over skills teaching continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/skills dichotomy. First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large.
Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools’ ability to prepare a new generation of law students to engage in both critical lawyering and law reform. As American society becomes increasingly unequal and as its criminal justice system barrels well past the breaking point, we desperately need the next generation of law students to participate in a new era of structural law reform. But unlike the last major era of reform in the United States (the Progressive Era), where ill-conceived top-down solutions were theorized and implemented by a small subset of elite lawyers, this time, reform should emerge from a coalition of lawyers hailing from all law schools and all levels of society. Even in legal education’s current situation, with tenure for law professors on the chopping block due to declining student enrollment and legal employment prospects, law schools should commit to collapsing the false binary between doctrine and skills.
Friday, November 6, 2015
In an unusual move, the Supreme Court notified attorneys in a case of an issue they should expect to discuss at oral argument. The case deals with alleged exclusion of African American citizens from a jury (Foster v. Chatman). Here is the body of the letter.
Counsel should expect questions at oral argument on whether certiorari in this case should be directed to the Supreme Court of Georgia or the Superior Court of Butts County, Georgia, and what significance, if any, that determination may have on the Court’s resolution of the case. Given the short notice, however, the Court may also request supplemental briefing after argument on this question.
At oral argument, the Justices did address the jurisdictional issue as well as the substantive claim. They did not request supplement briefs.
Last year, I wrote an article in the Pepperdine Law Review encouraging the Court to submit to lawyers knotty questions prior to oral argument and ask for responses (here).
Thursday, November 5, 2015
Positive thinkers be damned; a new study reported in the New York Times (and the ABA Journal Blog) found that among law students waiting for bar exam results, the ones who suffered from anxiety, rumination and pessimism "responded more productively to bad news and more joyfully to good news" than those who maintained a more positive attitude. (you can read the original study here which is based on a longitudinal study involving 230 California law school graduates). The worrying that pessimists endure better prepares them for bad news which they handle more productively than those maintaining a positive attitude who may be shattered by failure. This reminds me of several related studies reported in a recent book by Oliver Burkeman called The Antidote: Happiness for People Who Can't Stand Positive Thinking which show that affecting a positive attitude can actually make a bad outcome more likely because one fails to adequately prepare for it. By comparison, the worriers are better prepared and because of that they tend to avoid the bad outcomes they fear. Ask yourself whether you'd rather be represented at trial by a Pollyanna who "trusts" justice will be served rather than an attorney who is constantly fretting about all the ways things that might go wrong while coming up with contingency plans in case they really do.
The article from the NYT also recommends another book on "the power of pessimism" called The Positive Power Of Negative Thinking by Professor of Psychology Julie Norem of Wellesley.
Maybe a lack of work-life balance isn’t all because of choices we make.
From Daily Worth:
Having it all. Finding work-life balance. However you put it, this notion of striking harmony between your career and personal life is talked about like something any of us can attain — if we only try hard enough, manage our inbox better, untether ourselves from technology, or practice mindfulness.
. . .
According to the article, the big structural problems are:
Wide Open Floor Plans (too easy to get distracted by co-workers)
Lack of Childcare and Eldercare Support
You can read more about the problems and proposed solutions here .
Wednesday, November 4, 2015
In his article, Escaping From Lawyers’ Prison of Fear, Professor John Lande lists fears that haunt lawyers and offers suggestions for overcoming them. Here are the fears:
feeling that their offices or cases are out of control;
changing familiar procedures;
looking foolish by asking certain questions;
candidly expressing their thoughts and feelings;
giving “bad news” to clients;
being intimidated by superiors in their firm;
asking for favors from their counterparts in a case or being asked for favors by their counterparts;
seeming “too nice;”
being blamed by oneself or others;
speaking in public;
lacking skill and confidence due to limited trial experience;
having their clients give false testimony;
failing to locate critical “smoking gun” information hidden by the other
taking actions harming their clients’ interests, such as disclosing unfavorable information, making trial objections that focus attention on unfairly prejudicial aspects of the case, or failing to argue critical issues on appeal;
being attacked or “outsmarted” by counterparts;
being judged unfairly by actual or potential jurors;
being intimidated by judges;
suffering reprisal in response to judicial disqualification motions or reporting judicial misconduct;
“antagonizing prominent citizens or the local legal community” by representing some clients “too well;”
suffering the “pain, humiliation, and shame of defeat;”
losing the “tournament” of associates to become partners in big firms that use an “up or out” system;
loss of business if they do not act like “hired guns,” even if it requires violating lawyers’ personal ethics;
being rejected in an effort to bring new clients to their law firm or losing existing clients to other law firms;
rejecting what turn out to be lucrative cases, i.e., letting the “big ones” get away; and
adverse professional consequences such as reprimands by superiors, demotion, negative publicity, lack of professional advancement, loss of work, professional discipline, or malpractice liability.
Wow! You can read more here.
Keith Lee of the very popular blog Associate's Mind has compiled a stellar list of online resources especially for new lawyers. If you're not already subscribing to Keith's blog, you should here. He also writes a very popular column at Above the Law that you can follow here.
Keith has grouped his extensive list of online resources into the following categories:
- The “Blawgosphere” (i.e., blogs offering commentary on various facets of the profession including ones that address niche legal topics)
- Criminal Law
- Defense Bar
- Family Law
- Free Speech, Other Online Censorious Behavior
- Intellectual Property Law
- Law As Business
- Lawyerist (the blog)
- Law School
- Legal Industry News
- Legal Research
- MyShingle (Carolyn Elefant’s one-stop shopping blog for solos and small office practitioners)
- Practice Management
- Professional Development
- Reddit (with links to law specific threads from "the front page of the internet”)
- Tax Law (got to know it)
Check out the entire list here.
Tuesday, November 3, 2015
The Law schools continue to win. From the Wall Street Journal’s blog, Oct. 15:
Back in 2011, disgruntled law school graduates thought they found a way to recover some of their bad investment—by suing their alma maters for alleged fraud.
In the years since, courts have knocked out the suits one by one, including the dismissal last week of a suit in Florida. Of the few that remain, none have been certified as a class action, meaning any recovery will be limited to individual plaintiffs.
The suits, which challenge the accuracy of the employment statistics and salary data reported by the schools, hit the courts during a particularly acute crisis point for would-be lawyers. Layoffs were rampant across the legal industry, and jobs were in short supply.
But courts didn’t buy the argument that the schools, most with low national rankings, defrauded applicants with misleading job placement numbers.
Last week, a U.S. district court judge in Florida, quoting an earlier decision tossing a suit against New York Law School, said prospective students at Florida Coastal School of Law are “‘a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives.’”
You can read more here.
Now this sounds like a pretty cool job. Here are the details:
The Benjamin N. Cardozo School of Law of Yeshiva University invites applications for a fulltime clinical professor to direct its Indie Film Clinic. The successful candidate will join a robust clinical program at a law school long dedicated to experiential learning and public service.
Now in its fifth year of operation, Cardozo’s Indie Film Clinic is the first law school clinic in New York to provide pro bono legal services to emerging and independent filmmakers. The clinic assists in drafting and negotiating formation, acquisition, chain of title, and sales documents and agreements for filmmakers and provides advice on licensing and fair use. Students take part in every aspect of the representation, gaining critical transactional, analytic, and client-service skills. The clinic’s client films have screened theatrically in New York and Los Angeles and in leading US and international film festivals including Cannes, Berlin, South by Southwest, and Tribeca. Several have achieved critical acclaim: “She’s Lost Control,” a narrative film, won the CICAE Art Cinema Award at the Berlin International Film Festival, and “La Camioneta,” a documentary, was selected as a Critics’ Pick by The New York Times. More information about the clinic can be found at http://www.cardozo.yu.edu/indiefilmclinic.
The Clinic Director will be responsible for designing and overseeing all aspects of the clinic’s teaching and client-service missions. This will include supervising students in all aspects of representing a business client, preparing and teaching a classroom seminar for clinic students, and building the Clinic’s network of partner organizations, clients, and funders in New York City and beyond. The Clinic Director will be a full-time member of the faculty and expected to take an active part in faculty governance and the intellectual life of the law school.
Applicants should have a JD degree, at least five years of experience in transactional lawyering in film or related industries, and strong interest or experience in clinical teaching. New York State bar admission is preferred.
Interested applicants should submit a cover letter, resume, and list of references to Professor Michael Herz at firstname.lastname@example.org. Review of candidates will begin immediately and will continue until the position is filled.
The Benjamin N. Cardozo School of Law is a part of Yeshiva University. Yeshiva University has a long-standing commitment to equal opportunity and affirmative action. We are committed to achieving nondiscrimination and equality of opportunity in employment and in all spheres of academic life. All University-wide decisions are based on equitable and equally applied standards of excellence.
Monday, November 2, 2015
Below is a short video describing the new program, which will begin enrolling students next fall at Cornell's NYC campus. Following the video is a press release which describes some additional details.
Cornell Tech and Cornell Law School announced Oct. 27 the launch of a Master of Laws (LLM) degree in law, technology and entrepreneurship, which will be offered at Cornell Tech’s New York City campus. The one-year, full-time LLM degree is designed to provide practicing attorneys and recent law graduates with specialized skills to support and lead technology companies in the digital economy. The first students are expected to enroll in 2016.
“The digital economy has raised huge societal, policy and legal questions that traditional law programs simply aren’t designed to address,” said Cornell Tech Dean Dan Huttenlocher. “This groundbreaking LLM program is the first of its kind to give lawyers the tools to be entrepreneurial thinkers, supporting technology startups, product development and the fast-paced growth that is driving the economy. And for Cornell Tech, the introduction of legal scholars and students to our ecosystem of technical students, MBAs and researchers will enrich the learning environment for everyone as we prepare our students for real-world success.”
Said Cornell Law Dean Eduardo Peñalver: “The rapid pace of innovation driving the technology sector today requires a new generation of lawyers with expertise in law, technology and entrepreneurship. The goal of the LLM will be to educate this new generation with the cutting-edge lawyering skills and the business acumen necessary to become first-class attorneys working at the forefront of an entrepreneurial economy. With virtually every modern company relying on technology and the law to further its business model, Cornell is the only university that offers an integrated program designed to equip talented lawyers with the tools for entrepreneurial success. The Law School looks forward to educating a new class of pioneering legal leaders.”
The LLM program will be an integral part of the new academic model at Cornell Tech, where education and research are tied closely to creating and growing companies and products. All LLM students will participate in the studio curriculum in which cross-program teams of students develop new products and services in response to challenges posed by companies and develop startup ideas. In this context, LLM students will be exposed to the real-world challenges that relate to entrepreneurship, early-stage enterprise and established businesses in the technology sector. They will develop expertise in the evolving regulatory environment around the digital economy, as well as structuring deals and agreements for the sector.
By combining an interest in law’s relationship to technology and entrepreneurship, and innovative and integrated teaching, the new program is expected to benefit a wide spectrum of practitioners and students. It is designed to synergize the legal principles and practical business applications that relate to entrepreneurship, early-stage enterprise and established businesses in the technology sector.
LLM classes will be taught at Cornell Tech’s temporary Chelsea campus through mid-2017, after which the program will move to its new home in the Bloomberg Center on the Roosevelt Island campus.
Sunday, November 1, 2015
In The Atlantic, Paul Campos effectively accuses these for-profit schools as scams (Florida Coastal, Arizona Summit, and Charlotte). Here is an excerpt:
The InfiLaw schools’ bar-passage numbers are almost certain to get even worse. Although the schools reduced their admissions standards drastically in 2012, they have since cut them further, to the point where they are now admitting huge numbers of students with credentials including lower LSAT scores and GPAs that would have barred them from getting into these schools three years ago. The admissions process at the InfiLaw schools is now close to a fully open-enrollment system, that inevitably matriculates many people who have little chance of ever passing a bar exam.
InfiLaw is not only exploiting these students, but also taxpayers who will foot the bill when these students cannot repay the hundreds of millions of dollars they borrow. Because the schools are ABA-accredited (via a lax process epitomizing the dangers of regulatory capture) the federal government will loan the full cost of attendance to anyone they admit—even though it is likely that, given their entrance credentials, a very large percentage of InfiLaw’s current students will never pass a bar exam, let alone actually secure jobs as lawyers. (The full cost of attendance at these schools is now over $200,000.)
You can read the rest here. Defenders of these schools are certainly welcome to respond in our Comments section.