Thursday, March 27, 2014
Several times, I have blogged about cognitive science as an important tool for learning and understanding the law. I have used cognitive science in my own work on jurisprudence (neurojurisprudence) and on legal educaion (the neurobiology of learning). (e.g., here)
Now, a group of authors have written a text book on neuroscience and the law.
Law and Neuroscience by Owen D. Jones, Jeffrey D. Schall, and Francis X. Shen.
One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for investigating each, and both the promise and the limitations of modern neuroscience technologies.
Core themes the book addresses include new law/neuroscience issues pertaining to: brain injuries, pain and distress, memory, emotions, lie detection, judging, adolescence, addiction, and brain death. Closing units explore current and coming legal issues surrounding cognitive enhancement, brain-machine interfaces, and artificial intelligence. The materials also consider: international neurolaw, psychopathy, decision-making, mental health, the aging brain, the veteran’s brain, behavioral genetics, prediction of future dangerousness, and neuroethics. Given the scope and nature of coverage, the book is designed to serve both as a coursebook and as a reference text for judges, practicing attorneys, and scholars interested in law and neuroscience.
Wednesday, March 26, 2014
This month's The Woman Advocate column in the ABA Section of Litigation magazine provides tips from a former judge turned litigator on how to prepare for oral argument. While most of it is common sense - know the cases, know the record, etc. - it serves as a nice primer from a very credible source for 1Ls looking for guidance on how to prepare for their moot court arguments this spring. An excerpt:
. . . .
On the day of oral argument, review your notes and your prepared remarks. Get to court early so you are calm and collected. If you are the appellant, approach the lectern with a paragraph introduction ready to go. If you are the respondent, respond to the appellant’s oral argument—and where necessary the appellant’s reply brief arguments—within the context of your “story” or theme. Maintain eye contact with all the judges as much as possible. Be respectful. Don’t ever interrupt a judge. Don’t fail to answer a question directly and immediately. Welcome questions as the beginning of a conversation with the judges that is the best and most meaningful part of oral argument.
Focus on the judges, their body language and their questions. Your preparation will mean that you will not need to search frantically through your brain to figure out the answer to the question. Instead, you will know the answer and can devote your thoughts to the purpose of the question, the best way to frame the answer, and the means to segue from the answer to another point that needs to be made. . . . [S]um up, and remind the court of the relief or remedy that you have requested.
. . . .
Read the full column here.
From The Guardian:
Google faces a lawsuit in California over whether bulk scanning of emails to deliver advertisements breaches state and federal wiretap laws.
In its filings for the lawsuit, the company has also admitted scanning the contents of emails sent and received by American students who attend schools which use the company’s Apps for Education suite. But America’s Education Week magazine says that that raises new questions about the compatibility between US child-protection laws and “big data”.
The nine plaintiffs accuse Google of breaching wiretap laws, and hope to start a collective “class action” suit to gain financial compensation for Gmail users, as well as to force the company to be more open about its policies.
The company “scans and indexes” the email of any student using its tools for education, even if those schools have turned off the ability to display adverts. The scanning lets the company provide features such as spell check, virus and spam protection, as well as functionality including its “Priority Inbox” feature. It cannot be turned off.
Such a practice could be in violation of an American law called Ferpa, the Family Educational Rights and Privacy Act, which is the main law guarding student educational records.
You can read the rest here.
Centralized powerful technology leads to the temptation to use it for questionable means.
Tuesday, March 25, 2014
Robert Ambrogi at his blog LawSites has a review of a relatively new business networking tool called Relationship Science (also known as "RelSci") that seeks to improve upon the relationship mapping functions of LinkedIn by finding contacts within organizations for purposes of turning those connections into potential clients. Unlike LinkedIn, RelSci is a fee-based service that employs a staff of 150 researchers who proactively search for information about business leaders within both private and public organizations that are added to the site's extensive database of business contacts. RelSci's data mining is intended to enable those who join the network, such as lawyers, to use the relationship mapping functions to identify contacts and decision-makers at more than 1 million organizations who have the potential to become clients. Robert Ambrogi explains further:
[RelSci] works by mapping your contacts and those of others in your firm against its database of people and companies. Its principal tool for doing this is something called Path Finder. Say you are at a firm with an interest in exploring a relationship with Company X. Search that company and Path Finder will map out how you are connected to that company. Maybe your contacts include someone within the company or maybe one of your partners has a contact there. You can find the strongest pathway and then follow it.
RelSci also has a Power Search feature that includes an array of advanced search filters. Search by industry, interests, work history, education, investments, political contributions, nonprofit donations, memberships and other parameters. The level of information available here is much deeper than you could find through LinkedIn.
Worth noting is that RelSci can also be used to map external relationships. Use it, for example, to find out which law firms already represent a company or which companies a law firm or lawyer represents (to the extent this information is available through public filings).
Another feature, 360 Alerts, provides daily alerts by email when people and companies you know are mentioned in the news. You can customize these to build specific lists of people and companies. You can also customize these to alert you only for specified events, such as when someone changes employment.
One other feature worth noting is Visit a City. As its name suggests, use it in advance of your next business trip to research who you could or should meet with.
. . . .
Announcing the 2013 Blawggie Awards – Tenth Edition
From December 23, 2013. (link)
Welcome to the 2013 edition of Dennis Kennedy’s annual Best of Law-related Blogging Awards, affectionately known as the “Blawggies.”
The Blawggies, which honor the best law-related blogs as determined from my personal and highly-opinionated perspective, were first unleashed on an unsuspecting blogosphere in December 2004 and are an annual tradition here at DennisKennedy.Blog.
This historic tenth edition of the awards makes them the longest running annual awards list for law-related blogs selected by a lawyer named Dennis Kennedy living in St. Louis, Missouri. What was originally just a crazy idea turned into a bit of an institution in the world of law-related blogging, illustrating my original premise: “Hey, I have a blog and there’s nothing stopping me from making up my own awards.”
1. Best Overall Law-Related Blog – 3 Geeks and a Law Blog
3. Best Law Practice Management Blog – Adam Smith, Esq.
4. Best Law-related Blog Category – Law Librarian Blogs
5. The “Kennedy-Mighell Report” Best Legal Podcast – The Return of the Legal Talk Network
6. The “Sherry Fowler” Best Writing on a Blawg Award – Sharon Nelson’s Ride the Lightning
***7. Best Law Professor Blog – Legal Skills Prof Blog***
8. The “DennisKennedy.Blog” Best Legal Technology Blog – V. Mary Abraham’s Above and Beyond KM
9. Best New Blawg – Jerry Lawson’s NetLawTools
7. Best Law Professor Blog – Legal Skills Prof Blog
Although, I’m nominally a contributing editor of the Legal Skills Prof Blog, I’m way more a reader than a contributor. As the debate about the future of legal education started to take hold in 2013 and gain momentum, the “practical skills” approach started to get a lot of attention. This blog’s coverage of those issues was excellent and it’s a great place to keep up-to-date on discussions about the future of legal education, analysis of current trends, and generally helpful links and information.
Runner-up – Paul Caron’s The TaxProf Blog What more can I say than that this blog covers tax topics in such an interesting way that I want to read every post. My greatest compliment: reading this blog makes me want to take a class from Paul. I hope he’s thinking about doing some online courses.
In its annual survey, Princeton Review asked this question of parents of children entering college. (Note: parents of future law students):
9) When it comes to choosing which college you (or your child) will attend, which of the following do you think it is most likely to be?
Here was the response:
For the first time in 10 years, an equal percentage (42%) of respondents overall said they/their child would likely attend the college that will be "best for career interests" as chose "best overall fit." In previous years, "best overall fit" was the primary choice each year. Only about 1 of 10 respondents (09%) indicated they'd choose the college with the best academic reputation, which for 10 years has been the least chosen.
I find this response disappointing, but it sends a signal to law schools trying to attract students.
You can find the rest of the survey here.
From Dean Erwin Chemerinsky’s op-ed piece in the Los Angeles Times:
Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.
Advising a Supreme Court justice to resign—a bit arrogant, don’t you think? You can read the rest of the column here
What Cognitive Dissonance Tells Us About Tone in Persuasion by Kathryn Stanchi.
This article is an excellent example of how a scholar can use cognitive science to help lawyers make effective arguments.
This essay takes an initial step toward thinking about where good advocacy should draw the line between zeal and coercion by looking to cognitive science for guidance. In particular, the paper looks at cognitive dissonance and related psychological processes to determine how decision-makers might react to different advocacy styles.
The bottom line arrived at in the paper is that it may often be advisable for lawyers to present arguments in a tone that, while strong in pursuit of a favorable outcome, appears more gradual, objective and reasonable. In other words, in many cases, the one most psychologically appealing advocacy approach is one that appears more balanced and reasonable rather than one that is aggressively pushy and one sided."
Monday, March 24, 2014
A University of Michigan law student has created a new app called BriefCase that will import case PDFs from your favorite legal research site, highlight the case in up to 9 colors each corresponding to different aspect of the case like "facts," "procedural history," "holding," etc., annotate the case and then turn all of that into a case "brief" with the tap of a finger. A free version of the app is available at the iTunes store here although for a subscription price of $9.99 per year you can get an upgraded version that adds some enhancements. Below is a short video showing BriefCase in action. Robert Ambrogi also has a review of the app at his LawSites blog here.
Law students and lawyers deal constantly with stress. In the March issue of the Wisconsin Lawyer, Paula Davis-Laack offers a number of ways that we can train ourselves to deal with difficult situations. For example, consider “catastrophising”—spinning the worst-case story from an event and immobilizing yourself. She offers a fives step process to get back to reality:
- Describe the stress-producing event factually.
- Write down all the worst-case-scenario thoughts you’re having.
- Create a best-case scenario (which you’ll have to completely make up so you can create a surge of positive emotion to lower your anxiety).
- Analyze the most likely scenario.
The article offers many more techniques. You can read about them here.
Sunday, March 23, 2014
Changing Markets Create Opportunities: Emphasizing the Competencies Legal Employers Use in Hiring New Lawyers (Including Professional Formation/Professionalism)
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."
From the Introduction:
"The Report of the ABA Task Force on the Future of Legal Education discussed in Part II below emphasizes the importance of understanding the competencies needed to be effective in the practice of law in order to guide new initiatives responding to the current market challenges. Part III analyzes data from several new studies of the competencies that legal employers are looking for in a new lawyer. Part IV focuses on a student’s professional formation (professionalism) competencies as foundational in legal employers’ hiring criteria. Part V evaluates a number of other recent empirical studies investigating the competencies that legal employers expect new lawyers to have and the competencies that new lawyers report are the most significant in their work. Part VI explores why it is important for students to develop differentiating competencies and transferable skills to respond to a rapidly changing market. The conclusion, based on the data from Parts III and V, presents some specific proposals for law schools to consider to help each student develop professionally."
I think that Professor Hamilton's study will be very useful to law schools and their curriculum committees in deciding what needs to be taught, especially concerning skills that have not been previously taught in law schools. I particularly like his emphasis on the development of transferable skills. As I have stated before, I believe that the way most law school classes are taught makes it difficult for students to transfer what they have learned in law school to practice. (here) Finally, Professor Hamilton gives a wonderful example of how to develop competencies in his conclusion.
P.S. Hamilton also mentions William Sullivan's views on professional identity: "William Sullivan, the co-director of all five Carnegie Foundation for the Advancement of Teaching studies of higher education for the professions, recognizes the importance of this bedrock foundation of an internalized moral core of deep responsibility for others, particularly the person served by the profession. Sullivan believes that the 'chief formative challenge' for higher education in the professions is to help each student entering a profession to change from thinking like a student where he or she learns and applies routine techniques to solve well-structured problems toward the acceptance and internalization of responsibility for other (particularly the person served) and for the student’s own development toward excellence as a practitioner at all of the competencies of the profession. Each client or patient needs to trust that her lawyer or physician is dedicated above all else to care for her with all of the professional’s ability. This is essentially a fiduciary disposition, using 'fiduciary' in the general meaning of founded on trustworthiness. Each student must internalize a fiduciary disposition for others, particularly the client."
U. Buffalo School of Law creates new Advocacy Institute to help students develop better trial skills
The new Advocacy Institute aims to establish U. Buffalo as one of the leading law schools in the nation when it comes to teaching students trial skills. Plans include expanding and strengthening the school's existing moot court and trial advocacy programs, developing new courses on trial advocacy topics and, interestingly, bringing to campus leading trial lawyers and trial advocacy professors from other law schools to teach U. Buffalo professors how to better train students. The program will kick-off in April when a pair of leading trial advocacy professors from Stetson and Loyola will conduct on-campus training sessions for both students and faculty. From the UB Reporter:
An ambitious initiative of the UB Law School will help students and legal practitioners develop their skills in the critical task of advocating for their clients.
The Advocacy Institute, to be funded by the Law School, the university and private donors, will build on UB Law’s recent success in the moot court and trial advocacy programs that give students real-world experience in trial and appellate advocacy. Plans for the institute envision an expansion and further strengthening of those programs; new courses on advocacy topics; training for faculty in the best ways to teach these skills; and continuing education opportunities for members of the local bar.
. . . .
Another major aim of the institute, [Vice Dean for Academic Affairs Charles] Ewing says, is to train faculty members — both full-time professors and the practitioners who serve as adjunct professors — to be more effective teachers of advocacy skills. “Our hope,” he says, “is to bring in nationally known trial and appellate advocacy attorneys and instructors to teach our faculty to be better instructors. Another goal is to send members of our faculty to programs around the country to improve their advocacy and teaching skills.”
The first instance of such faculty training will come April 5, when two of the best-known advocacy professors in the nation — Charles Rose of Stetson University Law School and Zelda Harris of Loyola Law School — will work with students, faculty and moot court coaches, offering critiques and teaching tools.
. . . .
Continue reading here.
This massive reduction in size, students, faculty, and staff is heartbreaking. From the Roanoke Times (excerpts):
“We were about 150 to 200 students when Appalachian Law School was founded, now 16 years ago, and then we rode the rising tide like all other American law schools and grew larger,”[Dean Lucy McGough] said. “At one time, we had a student body approaching double that, near 300.”
She said the trimming will come in the form of eliminating some classes that aren’t taught all the time and don’t reflect the college’s specialties, which are natural resources and alternative dispute resolution. The school is also looking to add a public health specialty, she said, because school officials think those are the most important subject matters for lawyers in the region.
The downsizing will mean layoffs, McGough said.
“We’ve already lost three faculty members with our mutual agreement,” she said. “We will maintain a student/faculty ratio of no more than 15-to-1, and that’s always been presumptively accepted for the American Bar Association.”
Next year’s incoming class may have about 40 students as opposed to about 70, she said. The current enrollment is 222.
Some (many?) law schools have found a way to raise their employment statistics in hopes of raising their ranking in the eyes of U.S. News. From The Economist:
A close look at the online employment database of the American Bar Association reveals that GW and UVA are among the leaders in a striking trend: law schools paying the salaries of their alumni when they go to work in legal firms, non-profits or the government. GW paid the starting salaries of a whopping 22% of its 2012 graduates; at 15%, UVA was not far behind.
Some law schools have long given aid to a few alumni who forsake high-paying corporate firms to pursue public-interest law. But since the 2008-09 recession, entry-level jobs at big firms have been scarce. This has led to a big expansion of “bridge to practice” schemes, in which the schools pay graduates a stipend to do a work placement.
Do these programs result in long term jobs? Not necessarily:
The programmes rarely last more than a year, and often pay a pittance. GW, which spends 4% of its budget on these wages, tried to cut pay rates in 2012 from $15 an hour to $10 before reversing itself after an uproar. Moreover, their success in getting graduates into genuine jobs is spotty: the NALP survey found that only 24% of participants from the class of 2012 had been hired by their employers or in related fields by the following February. GW and UVA say their success rate is far higher than this.
You can read more here.
Saturday, March 22, 2014
It’s hard for most of us to embrace change. We find it easier to keep doing what we’ve always done, even when we suspect that the status quo is no longer good enough. Here, from Inc.com, are 11 quotes to inspire change.
1. It is not the strongest or the most intelligent who will survive but those who can best manage change. --Charles Darwin
2. Adaptability is about the powerful difference between adapting to cope and adapting to win. --Max McKeown
3. The art of life is a constant readjustment to our surroundings. --Kakuzo Okakaura
4. Adaptability is not imitation. It means power of resistance and assimilation. --Mahatma Gandhi
5. You can't build an adaptable organization without adaptable people--and individuals change only when they have to, or when they want to. --Gary Hamel
6. People will try to tell you that all the great opportunities have been snapped up. In reality, the world changes every second, blowing new opportunities in all directions, including yours. --Ken Hakuta
7. Learn to adjust yourself to the conditions you have to endure, but make a point of trying to alter or correct conditions so that they are most favorable to you. --William Frederick Book
8. All fixed set patterns are incapable of adaptability or pliability. The truth is outside of all fixed patterns. --Bruce Lee
9. A wise man adapts himself to circumstances, as water shapes itself to the vessel that contains it. --Chinese Proverb
10. The price of doing the same old thing is far higher than the price of change. --Bill Clinton
11. Each of us has the opportunity to change and grow until our very last breath. Happy creating. --M.F. Ryan
Friday, March 21, 2014
Many techies believe that adding a second monitor to your desktop set-up increases productivity. Two screens means doing almost twice the work in the same amount of time, right? But this article from the New York Times suggests that it may be just the opposite. Buying a second monitor for your desktop may significantly decrease productivity because it multiplies the number of potential distractions awaiting the user. At least that's what the anecdotal evidence cited by the NYT's reporter says. Interestingly, though, at least one study concluded that a second monitor may indeed boost productivity when working on research papers because of the ease with which the user can toggle between the source material displayed on one monitor and the document being drafted on the other. Think Wexis opened to your cases on one screen while you write the brief on the other. Something for appellate lawyers to consider if they haven't already figured it out on their own.
Here's an excerpt from the article.
. . . .
“Two monitors are a double-edged sword,” said Gloria Mark, a professor who studies workplace distractions at the University of California, Irvine. Ms. Mark hasn’t specifically researched how second monitors might affect focus, and when she recently had a chance to work at a two-monitor machine, she felt that it did make some of her tasks easier. “But most people have their email up on the second screen, and of course, when anything comes in, it’s a great source of distraction,” she said.
The conventional argument in favor of dual monitors rests on what might be called the two-window problem. Imagine, for instance, the process of writing a research report. You have a word processor open in one window, and, somewhere else on the screen, a web browser full of tabs pointing to research papers. To write the report, you need to shift your attention frequently from the browser to the word processor and back again. On a small display, it would be difficult to keep both windows open at the same time, so you’d waste time switching from one to the other. On a large multiscreen display, you can keep both windows open on your screen — and you save all that switching time.
The research supports this. One study commissioned by NEC and conducted by researchers at the University of Utah showed that people using a dual-display machine to do a text-editing task were 44 percent more productive than those who used a single monitor.
But for most people, the time spent juggling two windows or scrolling across large documents isn’t the biggest bottleneck in getting work done. Instead, there’s a more basic, pernicious reason you feel constantly behind — you’re getting distracted.
Ms. Mark’s research, based on observations and digital tracking of office workers, has found that our workplaces are bombarded with distractions. Studies show that office workers are interrupted every four to 11 minutes by external distractions including phone calls, email and people who stop by your desk to chat about the weekend.
. . . .
Continue reading here.
Sometimes lawyers lose cases, and their clients suffer. Sometimes the stakes in a case are high, and just dealing with the case is stressful. Law schools need to prepare their students for the stress. Here is an excerpt from an article on Progressive Law Practice:
Some believe lawyers should be given more tools to deal with the emotional side of practicing and that there is an inherent psychological side of the legal profession that is largely overlooked.
Sara Martin, writing for the American Psychological Association Monitor cited psychologist Jennifer K. Robbennolt when she criticized the lack of law school preparation regarding student’s ability to understand human psychology. Robbennolt is a law and psychology professor at the University of Illinois College of Law who co-authored a book about ways lawyers could be more tuned-in to the psychological needs of their clients.
“Given that lawyers spend most of their time interviewing, counseling, negotiating with and trying to persuade other people, it is really important that they think about what the science says about how people think and behave and how that might inform the way they think about best practices,” Robbennolt told the APA.
The book, "Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making" was co-authored by Jean R. Sternlight, a law professor at the University of Nevada Las Vegas Boyd School of Law, according to information the APA.
At least this is the traditional date on which Johann Gutenberg became the first person to publish a book with moveable type. Some of his success was due to his invention of an oil-based ink. Despite his accomplishment, Gutenberg had a difficult life. You can read more here.
How Much Do Legal Employers Consider an Applicant's Law School's U.S. News Rank in Making Employment Decisions?
Not much according to a recent study by Neil Hamilton.
Earlier this week Brian Leiter had a post on his blog that declared, "Elie Mystal, one of the bloggers at 'Above the Law,' wrote this last week ["U.S. News, for all its faults, is how employers think of you"]. . . No evidence was offered, and that's not surprising: the statement is false in almost all cases. . . . Actual lawyers and judges do not, in my experience, pay any attention to U.S. News at all. A couple of years ago, for example, I was speaking to a distinguished group of Northwestern University Law School alumni about the U.S. News rankings. There were about 125 to 150 lawyers (and a few judges) there. Many of the lawyers in attendance had been or were the current hiring partners at their firms. I asked a simple question: how many had looked at the recent U.S. news rankings of law schools? Maybe five hands went up in the entire room. To a person, all these lawyers and judges said they based their evaluations of law schools--where they recruit, how deep into the class they will go for new hires--on their past experience with the schools and their graduates. Full stop. No one was waiting for the U.S. News law school rankings to decide where to interview or whom to hire."
When I read this argument, I felt that it coincided with my experience. Prospective law school applicants obsess with U.S. News, but legal employers do not. However, both my intuition and Leiter's experiment are anecdotal. I don't like to rely solely on anecdotal evidence.
Neil Hamilton has recently posted an empirical study that backs up the above anecdotal evidence: Changing Markets Create Opportunities: Emphasizing the Competencies Legal Employers Use in Hiring New Lawyers (Including Professional Formation/Professionalism). In this study, Hamilton examined the various competencies that differing types of legal employers used in making hiring decisions. These competencies included rank of the law school attended.
Hamilton first looked at "The Relative Importance of Different Competencies in the Decision to Hire a New Associate for the Largest 14 Minnesota Law Firms." Rank of law school attended placed 22nd in Hamilton's study. Next, he evaluated "The Relative Importance of Different Competencies in the Decision to Hire a New Lawyer for 18 County Attorneys in Minnesota." Rank of candidate's law school was last at 23. Finally, he studied "The Relative Importance of Different Competencies in the Decision to Hire a New Lawyer for the Regional Aid Offices in Minnesota." Law school rank again came in last at 23.
Based on this study, it is obvious that most legal employers place little emphasis on a prospective employee's law school rank. For years, I (and many, many, many others) have attacked the reliability of the U.S. News law school rankings. Now, we also know that legal employers don't care very much about the rankings.
P.S. I will discuss Professor Hamilton's article more next week.