Thursday, September 4, 2014
The “Your ABA email” offers a thorough discussion of the subject, including the results of disciplinary proceedings against lawyers who fought back. The problem is that the lawyer’s obligation of confidentiality prevents disclosing facts that undermine the truthfulness of the client’s assertions.
The memo advises caution. It offers one response, suggested in a Pennsylvania bar opinion, that a lawyer might post:
A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
You can access the memo here.
Wednesday, September 3, 2014
"Grit" does not correlate with creativity including intellectual creativity and creative problem solving
Those are the findings from two separate studies conducted by researchers at U. Texas and Yale, respectively, according to Education Week. While previous studies have shown that "grit" - defined as conscientiousness and perseverance - predict success in "everything from graduation rates at West Point to National Spelling Bee champions," it does not correlate with creative achievement including intellectual creativity and creative problem solving (both of which separate good lawyers from the most talented). Here's an excerpt from Education Week summarizing both new studies:
. . . .
Well-known studies by developmental psychologist Angela L. Duckworth and colleagues at the University of Pennsylvania have found that a person's "grit"—a measure of conscientiousness and perseverance—could predict everything from graduation rates at West Point to National Spelling Bee champions. . . .
But Magdalena G. Grohman, the associate director of the Center for Values in Medicine, Science, and Technology at the University of Texas at Dallas, argues that grittiness is not the end-all, be-all for student success. "When you look at it, these [areas studied by Ms. Duckworth] are well-defined areas and the rules for achievement are well-defined in those areas," she said. "We know what to do to get good grades, what to do to stay in military school, and what to do to win in contests such as spelling bees. The rules are pretty clear on what the achievement is and what success is in these domains. But what about creative achievement?"
In two separate analyses of college undergraduates by Ms. Grohman and her colleagues, students filled out detailed questionnaires on personality, extracurricular activities, and grades, as well as data on prior creative activities and accomplishments. Students' ratings on field surveys of grit and openness to experience were compared to their academic and extracurricular records.
Ms. Grohman found that neither grit nor two related characteristics of consistency and perseverance predicted a student's success in various types of creative endeavors, including visual and performing art, writing, scientific ingenuity, or even creativeness in everyday problem-solving. "These are 'no results' that we are actually excited about," Ms. Grohman said during a presentation on creativity. "Creative achievement and grit, intellectual creativity and grit, everyday creativity and grit: no effects whatsoever."
Rather, a student's openness to new experiences was most closely associated with his or her likelihood of accomplishing creative works, she found.
In a separate study, Zorana Ivcevic Pringle, an associate research scientist at the Yale Center for Emotional Intelligence, at Yale University in New Haven, Conn., compared the academic records and the reports of high school students, their peers, and teachers.
. . . .
Ms. Pringle found that neither students' individual scores on tests of grit nor their teachers' ratings of high persistence were related to how creative they were on group projects.
However, as in the previous study, individual ratings of students' openness to new experiences and teachers' ratings of students with passion for their work did predict who would be the most creative.
Ms. Pringle said she is still studying whether grit may come into play later on, when students' creative ideas must be built out into long-term projects.
"There's a difference between creative potential and achievement," she said. "We all know people who have great ideas but never end up doing anything with them, and I'm really interested in what happens in that process," she said.
. . . .
Continue reading at Education Week here.
Once again, Washington Monthly has released its college rankings based on its own set of criteria—criteria to identify America’s most public minded colleges and universities. The criteria: social mobility, research, and public service.:
To identify the most public-minded institutions, we rank every four-year college and university in America based on three criteria: social mobility, research, and public service. Instead of crediting colleges that reject the most applicants, we recognize those that do the best job of enrolling and graduating low-income students. Our rankings measure both pure research spending and success in preparing undergraduates to earn PhDs. And by giving equal weight to public service, we identify colleges that build a sense of obligation to their communities and the nation at large.
The complete list of our national university rankings is here, the liberal arts colleges are here, and the master’s universities and baccalaureate colleges are here and here. It turns out that ranking colleges by social mobility, research, and service produces some surprising results. Well-known colleges that are routinely lauded by the U.S. News & World Report fare much worse when ranked according to what they do for the country. On the other hand, colleges that are routinely buried in the bottom tiers of the U.S. News rankings are top performers on our list. Here are some of the highlights of the 2014 Washington Monthly college rankings.
See if you agree. For the full release, please click here.
Because of the ABA's recent adoption of rules requiring that law schools employ outcome determination, outcome determination will be a key issue in legal education over the next few years. Here is an article that uses the neurobiology of learning to help create a method for determining outcomes.
Achieving the American Bar Association's Pedagogy Mandate: Empowerment in the Midst of a Perfect Storm by Cara Cunningham Warren.
Of all reform measures, the pedagogy mandate may be one of the best chances law schools and their graduates have in the face of the “Perform Storm” raging in legal education. It is the one measure most directly linked to preparing graduates to succeed in the evolving employment market that is at the root of the crisis. In this way, full achievement of the mandate also can be a protective measure for law schools.
Ironically, successful implementation remains an open question, in part because of the traditional nature of the academy and its resistance to change, and in part because law schools may be ill-equipped to respond as a result of the crisis.
This article seeks to change the dynamic. It begins by putting the 2014 Standards into historical context and explaining their impact on legal education. The author then moves to discuss full achievement of the mandate. First, law schools are encouraged to overcome their resistance to pedagogical innovation and to embrace the mandate and its benefits.
At the same time, this article seeks to empower law professors to be a driving force for change. More specifically, under the ABA’s new “outcomes” approach, professors are expected to create meaningful learning opportunities for students and to assess and improve the effectiveness of those experiences. To assist law professors in this regard, the author introduces a teaching effectiveness framework that was created by experts in education from the National Research Council of the National Academies and adapts it for use in legal education.
The legal community has relied on the NRC’s expertise for decades, in a wide range of fields, but the author believes this is the first time NRC expertise has been brought to bear in this context. The NRC is credited for its ability to bring the legal and scientific communities together and to make scientific theories accessible. In this way, the framework is a useful tool for law professors, especially those who are trained attorneys rather than certified educators, and improves the current state of our pedagogy scholarship by placing existing assessment and learning outcomes work in the broader context of modern learning theory and instructional design.
Principle 1: Focus on Knowledge
Identify what is to be taught, why it is taught, the relationship between the learning goals and teaching methods, and what mastery looks like.
Principle 2: Focus on the Learner
Encourage attention to preconceptions and begin instruction with what learners think and know.
Principle 3: Focus on Assessment
Provide frequent opportunities to make students’ thinking and learning visible guides both for the teacher and for the learner, and promote self- regulation of learning.
Create a classroom environment that encourages questioning, respect, and risk taking."
Tuesday, September 2, 2014
Above the Law is reporting that Lewis & Clark is reorganizing its "downtown" clinics resulting in the closure of its "main law clinic" due to financial constraints that are presumably related to the slump in applications. According to ATL's story, the law clinic in question was an important source of hands-on legal skills training at the school. The dean said in an email to students that those affected will be integrated into "alternative" legal aid organizations such as the St. Andrews Legal Clinic in downtown Portland. Here is the dean's email courtesy of ATL:
Due to budget constraints, we are reorganizing two of our downtown clinical programs effective December 31, 2014. We will discontinue the Lewis & Clark Legal Clinic, which provides lawyering skills training for upper division students through the representation of low-income clients…
The Lewis & Clark Legal Clinic has traditionally offered students opportunities to handle a variety of civil and administrative disputes and issues, including family law, consumer law, bankruptcy and landlord-tenant law. Through our externship program, we are integrating students with interests in these areas into alternative organizations such as the St. Andrew Legal Clinic and legal aid organizations.
We regret the need to discontinue a program that has been a part of the Law School for many years, but current budget realities—for both the law school and our students—make this move necessary. We highly value the service that the LCLC professors and staff have provided to our students and look forward to working with them over the course of the coming year.
You can continue reading at ATL here.
Managing their time in the demanding law school world is a major challenge for new law students. Here is a one page list of ways to manage time. (from San Jose State’s business school). The main headings are:
Prioritize Your Tasks
Practice Effective Study Techniques
Be Able to be Flexible
Have a Vision
Under each heading, you will find much specific advice.
For the past two years, our law school orientation has included a two hour presentation by a speaker from the Franklin Covey consulting organization. I think these talks on time management have been helpful. However, for the students to implement the suggested practices, they need to be reminded of them and have to deal with related projects throughout the school year. That’s where we come in.
Monday, September 1, 2014
Cumberland School of Law partners with e-discovery company to start "eDiscovery Institute and Review Center"
The partnership is between Cumberland and cicayda, a Tennessee based e-discovery and document review company co-founded by a Cumberland grad. According to the school's press release, the law school will provide space for a cicayda document review center to handle client business and has plans to hire Cumberland grads as well as more experienced lawyers to staff it. Further, cicayda and the school will collaborate on creating new courses and "certificate programs" to train students in information technology, compliance, project management and e-discovery. According to the press release, both parties will also explore together the possibility of creating CLE programs to train practicing lawyers on these same issues. Here are more details from Cumberland's website:
Cumberland School of Law has opened the eDiscovery Institute and Review Center in partnership with cicayda.
A Nashville, Tenn.-based company, cicayda provides eDiscovery software applications, professional managed litigation support services, and eDiscovery consulting and auditing, according to Henry Strickland, Cumberland School of Law dean.
The eDiscovery Institute and Review Center, located in the law school’s Lucille Beeson Law Library, will assist students in legal technology and provide new opportunities in the marketplace, Strickland noted. Recent law school graduates as well as experienced lawyers will be hired by cicayda to staff the center.
“I am excited about this innovative partnership between cicayda and Samford University’s Cumberland School of Law,” Strickland said. “It provides an unprecedented opportunity to bring cutting edge legal technology into our law school. It will provide our graduates employment and experience with fast-changing 21st century legal systems, and it will provide our students and faculty unmatched opportunities to engage with and understand the role of technology in our legal system.”
In connection with the Center, cicayda and the Cumberland School of Law will collaborate on new courses and certificate programs in areas such as technology, information governance, compliance, project management and eDiscovery. Cumberland School of Law and cicayda also may work together on CLE programs designed to educate practicing lawyers in these same areas.
Representatives from cicayda called the partnership a “perfect step with [its] premium delivery of software and services in eDiscovery. The eDiscovery Institute and Review Center marks an historic, immediate step into the future of legal education and a better managed review opportunity for corporations and law firms needing outsourced eDiscovery or contract review.”
“The center features a state-of-the-art review facility with the latest technology, an expert project management staff and top security. The partnership combines one of the USA’s leading law schools and universities with one of the world’s cutting edge legal technology and services companies,” representatives said.'
. . . .
Continue reading here.
Sunday, August 31, 2014
If you want to know what "actor network theory" is and how it could possibly relate to the teaching of legal research, then you'll need to read Judith Lihosit's (U. San Diego Legal Research Center) new article entitled Breaking Down The Black Box: How Actor Network Theory Can Help Librarians Better Train Law Students In Legal Research Techniques available at 106 Law Libr. J. 211 (2014). From the introduction:
The development of a pedagogy for the teaching of legal research would serve to both improve the quality of research instruction that law students receive and elevate the status of those providing that instruction within the legal academy. Actor network theory, a methodology that originated in the field of science studies to trace relations in the process of group formation, can assist librarians in the development of such a pedagogy and also help them to better understand how to position themselves as the experts best suited to the task of providing that instruction.
That’s the finding of a survey conducted by the Kaplan Bar Review:
According to a Kaplan Bar Review survey* of over 1,200 law school graduates from the class of 2014, a strong majority of tomorrow’s attorneys give their alma maters strong marks overall: 40% of law school graduates gave their overall law school education an “A” (up from 37% in 2012), while 45% gave it a “B”. Only 11% gave their legal education a “C”; and a relatively small percentage (4%) scored it as below average or failing. And while law school grads gave their former JD programs generally favorable marks in a number of subcategories, there was one glaring exception: job placement.
Students generally were pleased with their professors, their schools’ efforts to make them practice ready, and the value of the financial investment. As one might guess, they were less satisfied with their schools’ efforts at job placement.
I would have expected these results. The real problem is not the quality of the education. It is the lack of jobs.
You can read the details of the survey here.
Saturday, August 30, 2014
Using in-class "microlawyering" to give students experiential training in trusts and estates practice
This is a new "legal skills" article by Professor Alyssa Dirusso (Cumberland) called Microlawyering and Simulations in Estates and Trusts Courses and can be found at 58 St. Louis U. L.J. 739 (2014). From the introduction:
If practice makes perfect, law school is not yet a perfect experience for budding trusts and estates lawyers. The legal curriculum needs to include significant opportunities for students to learn through doing. When legal instruction is limited to purely academic study, students are deprived of important professional training. As recognized in many other professional schools, practice presents an invaluable opportunity for learning the reasoning necessary to be competent in the field. The benefits of integrating practice into legal education have been documented through psychological study. Through these studies, it was recognized that when comparing novice and experts, experts had developed “well-rehearsed procedures, or ‘schemas,’ for thinking and acting,” which allow experts to quickly apply this knowledge to current situations in a manner not developed in novice. The studies also revealed that the knowledge of experts is “conditioned, or related to contexts.” This evidence supports the proposition that purely academic legal education is merely a foundation for expertise, which can be developed only through the actual practice. An ideal exposure to trusts and estates practice is gained through microlawyering--a term I use to mean small-scale, real legal experiences. The term borrows from the concept of microlending. In microlending, budding entrepreneurs who need small amounts of capital to launch new enterprises receive modest loans from microfinancing institutions, empowering business owners to take action when traditional lending structures would not offer the opportunity to proceed. Although the investment is small, the impact can be substantial. So too in the classroom can enabling small-scale experience yield large-scale results.
Although clinics and externships can provide microlawyering opportunities, not all law schools have the resources to offer experiences in trusts and estates to significant numbers of students. Fortunately, it is also possible to provide microlawyering experiences to law students in traditional doctrinal courses as well as smaller skills classes. In this Article, I will describe two such activities and reflect upon the challenges microlawyering presents in these contexts.
In addition to microlawyering, simulations offer students the opportunity to develop skills in a practice-like context. Unbound by the restrictions of real legal practice, simulations are remarkably flexible and well-suited to a variety of classes. Like microlawyering, simulations illustrate the importance of learning to do and not just to think. They can be critical in not only providing experience and feedback in a safe setting, but in developing confidence in nascent lawyers.
. . . .
Yes, according to the Third Circuit. In a nutshell:
Attorney Andrew Dwyer, lauded by New Jersey judges in separate judicial opinions, published on his law firm's website those complimentary remarks. One of the judges objected to this, and ultimately the New Jersey Supreme Court adopted an attorney-conduct guideline that bans advertising with quotations from judicial opinions unless the opinions appear in full. Is the guideline an unconstitutional infringement on speech as applied to the advertisements of Mr. Dwyer and his firm? We believe it is and thus reverse the contrary decision of the District Court.
Here is the quote to which the judge objected:
"The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer. . . . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved."
If I were Mr. Dwyer, I certainly would want to post that quotation on my website. On the other hand, I might ask the judge’s permission first. And on the other hand, I strongly suspect that the judge would decline to give that permission.
You can read the court’s opinion here (Dwyer v. Cappell, No. 13-3235, 2014 BL 221382 (3d Cir. Aug. 11, 2014).
Friday, August 29, 2014
Florida State University College of Law joins other institutions that have started accelerated JD programs like Albany, Denver, Fordham, Rutgers, Seton Hall, Southwestern, Stetson, Touro, USC, Vermont (considered) and Whittier by announcing a partnership with Eckerd College in St. Petersburg, Florida that will allow undergrads to get their BA and JD in six years rather than seven. From the press release:
Eckerd College and the Florida State University College of Law have created a new program that will allow Eckerd students to obtain a bachelor’s degree and a law degree in six years instead of seven.
Applications are now being accepted for the 3+3 Program, the third of its kind for the FSU College of Law.
Undergraduates who gain admission to the program after successfully completing their junior year at Eckerd College will follow the usual course of study for full-time, first-year law students. Those who successfully complete their first year at FSU will obtain a BA or BS from Eckerd College. Students who fail to complete their first year at law school or decide to withdraw may return to Eckerd to complete their undergraduate degree without applying for readmission.
The program is designed for students with a commitment to academic excellence. Students in the program are required to complete at least 24 courses plus an autumn term course in their freshman year and a winter term project in each of the subsequent two years. Students must take the LSAT before or during their junior year.
Tuition and fees to the law school will be the same as other first-year law students.
“Eckerd College is excited to offer our students this opportunity,’’ said Suzan Harrison, Eckerd’s Dean of Faculty. “This saves them a year of tuition and moves them forward in their professional ambitious more quickly.”
The Florida State University College of Law has similar arrangements for undergraduate students at the University of Central Florida and Florida State University.
“I am delighted about our new relationship with Eckerd’s outstanding academic programs,” said FSU Law Dean Donald Weidner. “In short, under this program, the first year of law school is double-counted: that is, it is credited both to the law degree and to the undergraduate degree. The result is that students and/or their families save the entire cost of the fourth year of college.”
Continue reading here.
The United States District Court for the District of Connecticut plans to appoint a new federal magistrate. Your students might be interested in knowing what the application form looks like. It is quite thorough and, for students who aspire to a judicial position, it may help them chart their course and remind them to keep their noses clean.
Law schools interested in legal education reform need to teach students reflection because reflection is a key to deep learning. Timothy Casey has just posted an excellent model for reflection on SSRN: Reflective Practice in Legal Education: The Stages of Reflection.
"Experiential legal education programs include reflection as an explicit learning outcome. Although many teachers and students have seen the value of reflection, few have studied the process of reflection. Drawing from research in the fields of cognitive development, reflective judgment, and moral reasoning, this article presents an organizational model for teaching reflection in six stages. The Stages of Reflection model provides teachers and students with a deeper understanding of the process of reflection, and creates a pathway for the development of reflective practice."
Here are the six stages of Casey's model:
"The model proposed in this article begins with a concrete, descriptive level of reflection and then progresses in stages to more abstract and more contextual levels of reflection. Each stage adds complexity. The first stage – Competence – asks the student to relate her performance to the standard of a reasonably competent lawyer. At the next stage – Difference and Choice – the student considers different means to achieve the goal of the performance. Middle stages– Internal Context and External Context – ask the student to describe factors that affected her decision-making process, beginning with a consideration of personal preferences, experiences, biases and characteristics, and moving to consideration of the preferences, experiences, biases and characteristics of others. The next stage – Societal Context – asks the student to consider relationships between law and society, social, political, historical, or economic structures that affect the lawyering process. In the final stage – Metacognition – the student should demonstrate an awareness of the effect of reflection on her thinking process."
Update: I have just finished reading this article for the third time, and I think it is amazing. I think all law schools should teach it on orientation. This model helps students get started in the right direction.
Of Reptiles and Velcro: The Brain's 'Negativity Bias' and Persuasion by Kenneth D. Chestek.
Cognitive psychologists have concluded that bad stimuli have significantly more power across a broad range of psychological phenomena. What are the implications of this finding for legal writing? For example, how do judges respond to negative themes in briefs? Should lawyers phrase their legal arguments in terms of avoiding bad outcomes instead of promoting good outcomes? Should rule statements in briefs highlight the possible negative consequences of a particular ruling as opposed to a positive outcome? Should advocates adopt a negative or aggressive tone in their writing? Does this finding change the way lawyers should do, or at least think about, counteranalysis? Does a judge’s negative opinion of an advocate have more power than a potential positive view of the client?
Answering these questions in the affirmative might be controversial. Many a judge (as well as many legal writing professors) counsel lawyers and law students to avoid the negative, and emphasize the positive. Given the near ubiquitousness of this advice, it seems that the cognitive psychology on negativity bias is worth studying. Have we all been giving bad advice all this time? This article discusses the cognitive psychology findings, then suggests some hypotheses for how they might inform choices that advocates might make. It is intended to open a conversation about how the negativity bias might affect the process of persuasion.
Thursday, August 28, 2014
You can read the full post from the Wall Street Journal Law Blog here. An excerpt:
Employers often complain that law schools don’t do enough to prepare graduates for life as practicing lawyers.
Well, it turns out that young attorneys feel pretty strongly about it, too.
A new survey in the September issue of The American Lawyer suggests that job satisfaction among mid-level associates is heavily influenced by how well they believe their law schools prepared them for practice.
The publication polled more than 5,000 attorneys with three-to-five years of experience under their belts on their satisfaction with compensation, training, relations with partners and other issues. Overall, job satisfaction was up slightly, it found
. . . .
But others said law school coursework tilted too heavily towards litigation, and didn’t do enough to prepare corporate lawyers for scenarios they are likely to encounter after graduation.
. . . . .
Continue reading here.
Beginning next July, all Illinois colleges and universities will be smoke-free—inside and out. From the Chicago Sun-Times:
Smoking will be banned indoors and out on all Illinois public college and university campuses starting next summer under legislation signed Sunday by Gov. Pat Quinn.
Quinn said the measure, which takes effect July 1, 2015, applies to all state-supported schools and will protect students' health and help nonsmokers avoid unwanted smoke "on the campuses they call home."
Smoking still will be permitted inside privately owned vehicles and during some activities protected by the federal American Indian Religious Freedom Act.
You can read more here.
Wednesday, August 27, 2014
Here are the details:
University of Richmond School of Law Seeks Clinical Professor
The University of Richmond School of Law seeks a full-time clinical faculty member to develop, run, and teach our Intellectual Property and Transactional Law clinic, which provides non-litigation legal services to small businesses, entrepreneurs, non-profits, authors, and artists. The focus of the clinic is business formation, business transactions, and intellectual property issues, but the Clinical Professor will play a major role in determining the clinic's specific emphasis and operation. The clinic is part of the U.S. Patent and Trademark Office's Law School Clinic Certification Pilot Program.
The Law School has four other in-house clinics, over 60 external clinical placements, and a well-developed, structured, sequential, skills-oriented curriculum. The Law School is also home to the Intellectual Property Institute, which comprises three full-time research faculty members and which offers more than a dozen courses in intellectual property and a certificate program for J.D. students.
Required qualifications for this position include a law degree, a license to practice in Virginia (or a willingness to quickly become licensed), and significant experience in business transactions, small business start-ups, and intellectual property issues. Entrepreneurial spirit and substantial organizational skills are a must. Prior teaching experience is a plus but not required.
This is a non-tenure-track, renewable contract position. Salary and benefits will be commensurate with experience and scope of responsibilities assumed. Starting date is flexible. Interested applicants should send a cover letter, curriculum vitae, and list of references to Professor Chris Cotropia, Chair of Clinical Faculty Appointments, at email@example.com.