Monday, April 11, 2016
Using “they” as a gender-neutral pronoun may be a trend, but should lawyers use the device? Professor Joyce Rosenberg points out the difficulties:
“For the persuasive writer—for whom credibility is all—the
writer’s point of view matters less than the reader’s.” Lawyers
must be conservative when we write because we usually
write on another person’s behalf, for an audience that may not
be receptive to freewheeling language choices. In that context [writing]
imposes a duty of care that probably keeps the practicing bar
away from the cutting edge of a grammar shift.
The singular they presents two problems in this regard. It
may inject unintentional ambiguity (is the lawyer referring
to more than one person?). And it may damage credibility
(why doesn’t this lawyer know the grammar rules?). When we
write for our clients, it’s not a great idea to be on the grammar
Fortunately, she lists the gender-neutral alternatives. You can access them here.
Guest Blogger: Acquiring the Citation Language: Should We Burn it All? by Professor Kirsten K. Davis
Today we are featuring a guest post by Professor Kirsten K. Davis, Director of Legal Research and Writing and Director of the Institute for Advancement of Legal Communication at Stetson University College of Law. It is a reply to Judge Posner's article on Bluebooking published in the Yale Law Journal.
Acquiring the Citation Language: Should We Burn it All?
As part of my four-credit legal research and writing class for first-semester law students, I spend three to four class periods out of twenty-six on legal citation. My efforts are directed toward enabling novices to become credible discourse participants, producing legal citations recognizable to the legal reader. I'm not after Bluebook perfection, just credible, competent communication about the most commonly cited legal authorities.
To become competent legal writers, novices must learn the language of legal citation, acquire a working knowledge of customary citation rules, and practice citation within those boundaries and according to those rules. Community-affirmed legal citation manuals, such as The Bluebook or the ALWD Guide to Legal Citation, provide shared access points to these limits. After learning (or at least being exposed to) these limits, a novice can begin exercising judgment about what is sufficient for community members to understand her.
The "invisibility" of legal citations that Judge Posner commends in his Yale Law Journal article on this subject comes from readers and writers sharing a common citation language so that the reader need not pause to understand the message. That is, the designation for a reporter looks like it should to the trained eye; a court abbreviation stands for the same court in the mind of both the reader and the writer. No trained legal reader needs to stop and think about what a citation means.
The wisdom to make reasonable judgments about what's sufficient to be understood comes first from proficiency in the basic discourse boundaries and rules. And because of that, Judge Posner's citation instructions, shared on TaxProf Blog, would pose a challenge for a novice. For example, a novice doesn't automatically know what a "parallel citation" is. Without instruction on the shared vocabulary of citation, a novice won't know the difference between a regional reporter and state reporter such that she can implement Judge Posner's rule to prefer regional reporter citations. Similarly, a novice won't know to avoid pincites for short opinions unless he knows what a "pincite" is and where to look for it in different versions of an authority. Judge Posner's instructions, in fact, speak to those who are presumed to have this legal citation background knowledge--the instructions remark, "Remember, you are not working on a law review."
Citation instructions like Judge Posner's are written for a post-novice crowd: individuals with pre-existing fluency in the discourse conventions, people who already know plenty about the citation language with which they speak, clerks who know something about what is recognizable to a legal audience and what is not. And, this knowledge likely came from using The Bluebook in the first place. This audience already knows the "citation rules behind the citation rules," and from this position can make intelligent citation judgments within the confines of Judge Posner's instructions or, in fact, any guide that sets new boundaries but uses the same basic structure and vocabulary. These instructions would mean little to a novice without this background understanding. Judge Posner recognizes this when he notes in his Yale article that "a first-year law student would need a little more guidance to legal citation form."
I agree with Judge Posner: it's time for citation manuals to let go of needless minutiae, inflexibility, and complexity. But, what is minutiae and what is not? When is a citation rule an inflexible edict instead of a necessary discourse convention? What silences and gaps resulting from simplifying legal citation manuals will derail acquisition of a common citation language? What can we eliminate before no common meaning is left for novices entering the conversation? And what would that mean for a shared language about legal authorities? It might be enticing to burn The Bluebook, but I think we should be wary before we burn it all.
Sunday, April 10, 2016
With the legal-oriented media regularly reporting benchslaps, a critical article was inevitable. And here it is—a very thoughtful one. In Benchslaps, Professor Joseph Mastrosimone criticizes the practice of judges publicly shaming lawyers of their allegedly unethical or unprofessional conduct:
This article criticizes the practice and concludes that it must end based on three arguments: (1) benchslaps breach a judge’s ethical obligation to take appropriate action in response to attorney misconduct; (2) benchslaps by their nature breach a judge’s ethical obligation to treat those appearing in court with courtesy, respect, and patience; and (3) the lack of appeal rights from a benchslap compounds their inappropriateness.
The article argues that judicial ethical enforcement regimes are the proper vehicles for policing questionable judicial conduct.
You can access the article here.
Saturday, April 9, 2016
Last month, preLaw gave us a sneak peak of its list of the top 50 law schools it deems offers the best practical skills training based on a formula that considers the percentage of students enrolled in clinics, externships, simulation courses and interschool moot court-type opportunities and competitions (for a full explanation of the criteria employed by preLaw, go here). This month, the magazine releases its list of the top 25 programs. Below are the top 10 programs but you can click here to see the full list of those schools that made the top 25.
- St. Thomas (Minn.).
- UC - Irvine.
- Washington & Lee.
- U. Wisconsin.
- U. Arizona.
- Brigham Young.
- U. Denver.
In an effort to keep pace with the changing demands and opportunities available in the legal profession, Vermont Law School this week announced a new program that allows students to complete nearly half of their education off-campus through online courses.
Set to launch in the fall, the Reduced-Residency Juris Doctor program will let students earn up to 15 credits online — of the 87 credits needed to graduate from Vermont Law School.
Vice Dean Jackie Gardina, who developed the RRJD program, said it will differ from the traditional three-year legal programs in that students will spend four back-to-back semesters taking courses at the South Royalton, Vermont campus — a period of 18 months that includes the summer. Afterwards, they’ll earn the rest of their credits off campus through online coursework and a semester in practice externship — expected to take about three semesters, though it will vary based on work schedules and classes students choose to take.
You can read more here.
Friday, April 8, 2016
At Vitae, Professor Jim Lang makes this observation:
In my experience — having observed many dozens of college courses over the past two decades — most faculty members eye the final minutes of class as an opportunity to cram in eight more points before students exit, or to say three more things that just occurred to us about the day’s material, or to call out as many reminders as possible about upcoming deadlines, next week’s exam, or tomorrow’s homework.
At the same time, we complain when students start to pack their bags before class ends. But why should we be surprised by that reaction when our class slides messily to a conclusion? We’re still trying to teach while students’ minds — and sometimes their bodies — are headed out the door. We make little or no effort to put a clear stamp on the final minutes of class, which leads to students eyeing the clock and leaving according to the dictates of the minute hand rather than the logic of the class period.
He then offers valuable advice on ending a class in a way that helps students retain information and think about what they have learned.
You can read more here.
Thursday, April 7, 2016
We're very proud to announce that our blogging colleague here at the Legal Skills Prof blog, Professor Lou Sirico, is this year's recipient of the prestigious Burton Award for Outstanding Contribution to Legal Writing Education. The award recognizes "the finest law school teacher who has promoted and advanced legal writing." You can read more about the Burton Awards, including a list of past winners, at the BA website here. Professor Sirico will receive his award at a black tie event held at the Library of Congress in Washington D.C. on May 23, 2016.
Here's more about our colleague from the official announcement:
Professor Sirico was accurately described in the letter nominating him as a “giant in the legal writing community.” He has been involved in nearly every imaginable corner of the legal-writing world. As an author, his stellar books include Persuasive Legal Writing (4th ed. 2015) (with Nancy Schultz), Legal Writing and Other Lawyering Skills(6th ed. 2014) (with Nancy Schultz), and Judging: A Book for Student Clerks (2003). He was the Technical Editor for Roy Stuckey’s Best Practices for Legal Education (2007), he sits on the Academic Advisory Panel for Black’s Law Dictionary, and he has written many articles both inside and outside our field. For decades, he has supported the scholarship of other members of our community—both as a generous mentor and in the more formal role of serving on the editorial boards of Perspectives: Teaching Legal Research and Writing and Legal Writing: The Journal of the Legal Writing Institute. For seven years, he served on the Board of Directors of the Legal Writing Institute; he was a member of the Executive Committee from 2000 to 2002. He chaired the AALS Section on Teaching Methods. He chaired the AALS Section on Legal Writing, Reasoning, and Research. He served on numerous committees, penned many editorials, advised the Plain English Committee of the Pennsylvania Bar, and offered limitless wisdom to our community at conferences and through the LWI listserv. In recognition of Lou’s career-long, outstanding service to the legal writing community, LWI and ALWD awarded him the Thomas Blackwell Award in 2007.
We're very proud of one of our own.
- The Legal Skills Prof Bloggers.
This past February, a panel at the ABA midyear meeting offered an analysis of issues that confront the digital writer and reader. Here is the advice that one panelist offered the writer:
- Create visible structure. Screen readers need visible structure to navigate a page, including such tools as frequent headings Frequent headings (bold-face lead-in to items like “Terminate Agreement ……) and tables of contents.
- Write summaries. Get the important information up front, which is critical for today’s readers. “There is nothing I hate worse that reading through a brief and not finding out what I need to know until near the bottom,’’ says McKeown. “Give it to me right up front.”
- Break out information with lists, bullets, tables. For example, instead of one paragraph talking about the four elements of negligence, break those elements into a list 1, 2, 3, 4. But not everyone likes lists. “When I see a bunch of bullets, I see a lazy law clerk,’’ Judge McKeown warns.
- Use white space, which can be created with shorter sentences, shorter paragraphs, headings, lists and bullets.
- Use visuals such as a flow chart or illustrative photograph.
- Stay simple in document design. Follow expected conventions; no strange fonts or fancy formats; and use ordinary capitalization, avoid ALL CAPS and First Word Caps.
- Know what technology your court is using to read.
You can read more here.
Full story here.
"While China has a long history of using dogs as meat, the festival itself is a relatively new tradition, created by an entrepreneurial group of dog meat traders."
"Ten thousand dogs were killed in one weekend at last year's festival, but Humane Society International (HSI) worked with local activists to help save hundreds of dogs."
"He captioned the photo with a powerful indictment against the Yulin Dog Meat Festival, which takes place annually in Guangxi, China. "The dogs are tortured to 'make the meat tastier.' They are also skinned and boiled alive. It's not a food festival. It's Hell," he wrote.
Wednesday, April 6, 2016
From the ABA Journal online:
Columbia University’s law school had the highest annual tuition among 99 private law schools ranked by U.S. News & World Report.
The law school charged $62,700, according toU.S. News & World Report. The lowest-cost of the 99 private law schools, on the other hand, was Brigham Young University’s Clark Law School, which charged only $23,940. Members of the Church of Jesus Christ of Latter-Day Saints got an even bigger break; they were charged only $11,970.
Among public law schools, the University of Virginia School of Law was most expensive for in-state students, with tuition of $54,000. Least expensive was the University of North Dakota School of Law, which charged in-state tuition of $11,161
You can find more information here.
I have learned of another professional identity course, this one at McGeorge School of Law: The Legal Profession.
From the course syllabus (here):
"In this course you will acquire knowledge, skills and qualities that are essential to a successful career in the law. Topics we will cover include professional identity, professionalism, team work, resilience, integrity, self-awareness, interpersonal communication, the business of law, and careers in the law. This course will introduce you to the roles lawyers play in society, as well as the practicalities, emerging technologies, challenges, responsibilities and privileges of being a member of the legal profession. It will also familiarize you with the wide spectrum of careers in which a law degree is required or desirable, and challenge you to think deeply about a career path that will be truly satisfying. To help you attain meaningful employment, this course will require you to understand the 'best practices' in job search activities, including resume writing, cover letter writing, use of social media, working with mentors, goal setting, and networking."
The syllabus includes the goals for each class. Example:
Learning Outcomes (Class 1):
"Begin to develop a professional identity and understand the critical role that
professional identity plays in successful legal practice.
Understand the value of and recognize opportunities to employ a growth mindset.
Understand that mastery of substantive law, analytical skills and communication skills is essential but insufficient to be a successful lawyer.
Understand the core values of the legal profession: Integrity, honesty, diligence, resilience, dependability and a desire to achieve social justice, and apply those values in practice."
If all U.S. law schools had classes like this, we would have a much better legal profession.
Tuesday, April 5, 2016
This article from the Wall Street Journal summarizes the results of several studies including a well publicized one by Mueller and Oppenheimer reported last year as well as the work of Professor Kenneth Kiewra at U. Nebraska who is an authority on note-taking research.
Students who take notes by hand outperform students who type, and more type these days, new studies show
Laptops and organizer apps make pen and paper seem antique, but handwriting appears to focus classroom attention and boost learning in a way that typing notes on a keyboard does not, new studies suggest.
Students who took handwritten notes generally outperformed students who typed their notes via computer, researchers at Princeton University and the University of California at Los Angeles found. Compared with those who type their notes, people who write them out in longhand appear to learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.
“The written notes capture my thinking better than typing,” said educational psychologist Kenneth Kiewra at the University of Nebraska in Lincoln, who studies differences in how we take notes and organize information.
. . . .
Generally, people who take class notes on a laptop do take more notes and can more easily keep up with the pace of a lecture than people scribbling with a pen or pencil, researchers have found. College students typically type lecture notes at a rate of about 33 words a minute. People trying to write it down manage about 22 words a minute.
In the short run, it pays off. Researchers at Washington University in St. Louis in 2012 found that laptop note-takers tested immediately after a class could recall more of a lecture and performed slightly better than their pen-pushing classmates when tested on facts presented in class. They reported their experiments with 80 students in the Journal of Educational Psychology.
Any advantage, though, is temporary. After just 24 hours, the computer note takers typically forgot material they’ve transcribed, several studies said. Nor were their copious notes much help in refreshing their memory because they were so superficial.
In contrast, those who took notes by hand could remember the lecture material longer and had a better grip on concepts presented in class, even a week later. The process of taking them down encoded the information more deeply in memory, experts said. Longhand notes also were better for review because they’re more organized.
. . . .
Continue reading here.
From The Legal Writing Coach (March 24) (here):
Can you cut down on your use of "not"?
For example, substitute "had no" for "did not have," "withheld" for "did not give," and "disagreed with" for "did not agree with" or "was not in agreement with."
I agree. Sentences with negatives are harder for readers to process. Also, when appropriate, I would use “lack” instead of “had no” or “did not have.”
From NBC News:
Woodrow Wilson's name will remain on Princeton University's public policy school, despite calls to remove it because the former U.S. president was a segregationist, the university announced Monday.
"Princeton must openly and candidly recognize that Wilson, like other historical figures, leaves behind a complex legacy of both positive and negative repercussions, and that the use of his name implies no endorsement of views and actions that conflict with the values and aspirations of our times," the Wilson Legacy Review Committee said in a statement, according to the university's communications office.
You can read more here.
Bloomberg BNA has a summary of the jobs report from the Bureau of Labor Statistics which also includes a revised figure for February (last month the BLS reported the legal sector lost 1,500 jobs. As of April, that figure has been significantly revised indicating a gain of 100 jobs). You can also go here to check out the most recent raw data on the legal sector from the BLS.
The U.S. legal sector gained 1,200 jobs in March as the national payroll employment rose by 215,000 overall, the bureau of labor said on Friday.
The number of people employed in the legal industry stood at 1,124,800 people, and the bureau revised previous preliminary jobs estimates upwards to illustrate continuous growth so far in 2016.
The bureau had reported a preliminary estimate of 1,500 jobs being shed in the month of February, but on Friday, it said that the industry actually gained 100 jobs that month. So in the three months of the new year, the number of people employed in the legal sector leaped by 1,300 — from 1,123,500 to 1,124,800 people.
. . . .
Continue reading here.
Here's another conference on legal education:
Third National Symposium on Experiential Learning in Law
New York Law School Friday, June 10, 2016 at 3:00 PM Sunday, June 12, 2016 at 2:00 PM (EDT)
"The 2016 Third National Symposium on Experiential Learning in Law will take a careful look at how to identify and effectively assess experiential learning outcomes in the legal education context. This symposium will offer highly interactive sessions that will provide learning designed to improve the quality of assessment in law schools’ experiential programs."
"Assessment is the pedagogical topic of our time. As law schools move toward greater adoption of multiple forms of assessment, it is incumbent on legal educators to share information on existing methods of assessment—what has worked well and less well, and why—as well as to tap into the expertise of those from other disciplines who have adopted assessment techniques for experiential learning that might be applicable to law schools. With these goals in mind, we anticipate holding several plenary sessions that will offer broad perspectives, from within and from outside law, on the challenges and the methods of assessing experiential learning."
"This conference is sponsored by New York Law School and The Alliance for Experiential Learning in Law and co-sponsored by Northeastern University School of Law, American University, Washington College of Law, Elon University School of Law, the University of Denver, Strum College of Law, and Vermont Law School. Additional generous support comes from West Publishing."
"The Alliance for Experiential Learning in Law ('the Alliance') was formed in 2011 under the auspices of Northeastern University School of Law. It now includes members from more than 113 law schools and legal services organizations. 'The Alliance’s ultimate goal is to ensure that law graduates are ready to practice with a full complement of skills and ethical and social values necessary to serve clients and the public interest, now and in the future.'”
Registration and more info here.
Monday, April 4, 2016
At Brainpickings, we find the view of turn-of-the century psychologist William James. It’s all about concentrated attention:
The act of paying attention and the way in which it is performed, James argues, is what sets geniuses apart from ordinary people:
Sustained attention is the easier, the richer in acquisitions and the fresher and more original the mind. In such minds, subjects bud and sprout and grow. At every moment, they please by a new consequence and rivet the attention afresh. But an intellect unfurnished with materials, stagnant, unoriginal, will hardly be likely to consider any subject long. A glance exhausts its possibilities of interest. Geniuses are commonly believed to excel other men in their power of sustained attention… Their ideas coruscate, every subject branches infinitely before their fertile minds, and so for hours they may be rapt.
But the ultimate measure of genius, James notes in a sentiment that echoes Goethe, isn’t so much the mental style of how attention is paid as the disciplined discernment of what we attend to:
When we come down to the root of the matter, we see that [geniuses] differ from ordinary men less in the character of their attention than in the nature of the objects upon which it is successively bestowed.
This conference will take place at Washburn University School of Law in Topeka, Kansas, from June 9-11, 2016.
The Institute for Law Teaching and Learning is thrilled to be planning its summer conference addressing the many ways that law schools are preparing students to enter the real world of law practice. With the rising demands for "practice-ready" lawyers, this topic has taken on increased urgency in recent years. How are law schools and law professors taking on the challenge of graduating students who are ready to join the real world of practicing attorneys? Can we be doing more?
Workshops will address real-world readiness in first-year courses, upper-level courses, required courses, electives, or academic support teaching. Workshops will present innovative teaching materials, course designs, and curricular or program designs. Each workshop will also include materials that participants can use during the workshop and also when they return to their campuses.
As I've mentioned here before, ILTL puts on great conferences. More info here.
Add the University of North Dakota to the list of law schools who are offering professional identity classes. (here)
"This innovative course will focus student learning squarely on developing the foundations of professional persona. It is especially intended to complement the first semester's primary emphasis on thinking, writing, and researching about the law. Thus, Professional Foundations will create an intentional semester-long space, outside of any particular substantive law setting, in which students will be expressly encouraged to cultivate a reflective mindset and the habits of being that are vital to the development of professional identity and the exercise of sound professional judgment. It will do so by exploring the characteristics of a 'good lawyer' and asking students to engage with the meaning of that concept in their own lives and careers, using weekly interactive exercises and writing assignments to build toward a reflective course portfolio. To those ends, students will be given repeated opportunities to either work in role or to discuss realistic lawyering situations requiring them to both (1) act as a fiduciary responsible for the welfare of others and (2) define and feel for themselves what it means to square personal and professional values. The critical course goal is to enhance the students' ability to be personally reflective and mindful of their behavior in various professional settings. The course will not be an abstract examination of professionalism, but an opportunity for students to ask themselves 'What would I do and how would I feel as a lawyer in that situation.' A subsidiary course goal, and a natural offshoot of the first, is to help students envision a career path that suits their sensibilities and aspirations."
"As currently configured, the course learning goals revolve around exploring and experiencing a number of highly important professional qualities, including dealing with unpredictability, confronting mistakes, displaying courage, acting diligently, being empathic, maintaining integrity under pressure, and cultivating sympathetic detachment. The first five sessions (Weeks 1-5) will concentrate on course basics, transitioning from the first to the second semesters, and fundamentals of professional role and identity. The next three sessions (Weeks 6-8) provide the platform for students to explore and personalize these fundamentals in a variety of lawyer-client relationships. The next four sessions (Weeks 9-12) will facilitate that exploration and personalization in a variety of practice environments. The last session (Week 13) will allow for a retrospective look at lessons learned and provide the opportunity for synthesis and taking stock of what each student's professional future may hold."
"Offering a course like Professional Foundations in the first year that is primarily devoted to issues of professional role, identity, and judgment, and provides opportunities for new law students to both reflect and act upon them in supervised educational environments, is an exciting advance and a sizable step towards our aim to produce practice-ready graduates," Dean Kathryn Rand explained. "That almost our entire faculty will be devoting extra time and creative energy to this project is a testament to our collective dedication to providing a first-rate education for our students and to serving the State of North Dakota through innovative teaching in the service of professional ideals that will ultimately benefit the people of this state, region, and nation."
From the 2016 course syllabus:
Course Goals. Each week, a different member of the ProfFound Faculty Team will offer interactive exercises to help you develop the habit of professional self-reflection, one of the most important practical lawyering skills. Being self-reflective requires intentionality. You must pause to consciously consider what you are about to do, why you are about to do it, and how your actions (or inactions) will impact self and other, especially the client.
The primary course goal is to enhance your ability to be personally reflective about, and mindful of your behavior involving, these core professional qualities of the “good lawyer”:
(1) Adaptability/Deals with Unpredictability
(2) Confronts Mistakes
(9) Integrity Under Pressure
(12) Professional Objectivity/Sympathetic Detachment
Sunday, April 3, 2016
Publicly reported events seem inevitably to generate conspiracy theories. Justice Scalia’s death is no exception. Here is a report deigned to put those theories to rest (if possible).
The authors, “Dean A. Beers, CLI, CCDI and Karen S. Beers, BSW, CCDI are both Certified in Medicolegal Death Investigations to include as forensic autopsy assistants, and Certified Criminal Defense Investigators.” Since 2008, they “have primarily focused on Equivocal Death Investigations in providing legal investigations and expert consultations in personal injury, negligence and death in civil, criminal and probate litigation.”
The discussion of “suspicious facts” begins on page 4.