Monday, November 11, 2013
In response to pressure for more "practical training," D.C. law schools push for reform of bar rules governing student practice
From the National Law Journal:
Hands-On Training for Law Students: D.C. would catch up with other states, and private attorneys don't seem to mind.
As law students nationwide clamor for more hands-on training, the District of Columbia's six law schools have joined forces to push for the first major overhaul of rules governing student practice in D.C. in decades.
Law school deans and faculty argue that existing rules are outdated and cumbersome. The proposed changes are aimed at streamlining how students are certified to work in clinical programs and expanding the type of work covered under the rules, from appearing in court in civil and criminal cases to advising nonprofits and small businesses on tax law and contracts.
The focus on clinics reflects growing demand from students, and their future employers, for more practical experience before they enter the job market, said Georgetown University Law Center Professor Wallace Mlyniec, who runs the juvenile justice clinic and has led the revision efforts.
At the same time, clinic directors say, the more students working in clinics, the more law schools can offer legal assistance to clients who otherwise couldn't afford a lawyer to fight an eviction, seek political asylum, get protection from an abusive partner or tackle any number of issues in and out of court.
. . . .
If you are looking for an example of a dispute over the meaning of a word in a statute or contract, a current Supreme Court case may prove helpful. The word at issue is “clothes.” Here are the opening
paragraphs of an account of the Supreme Court argument, provided on the SCOTUS blog by rofessor Sam Bagenstos.
In Monday’s argument in Sandifer v. United States Steel Corporation,
counsel for both the employee-plaintiffs and the employer-defendant offered the
Court tests for defining what constitutes “changing clothes,” but neither
seemed to get much traction. To the extent that a majority of Justices
seemed inclined toward any definition, they seemed to favor following the
ordinary-language definition of “clothes” and resolving this case on behalf of
the employer. Such a ruling would largely track the position taken by the
federal government in its brief and argument in this case.
The case involves a provision of the Fair Labor Standards Act (FLSA) that allows an
employer and a union to negotiate collective bargaining agreements under which
time spent “changing clothes” will not count towards the statute’s overtime
provisions. The employees’ lawyer, Eric Schnapper, and U.S. Steel’s
lawyer, Lawrence DiNardo, pressed opposing categorical interpretations of the
key statutory phrase. But the Justices appeared to see significant
problems with each of those interpretations.
During World War II, this poem appeared in the New York Times.
My son, they say, has killed eleven men.
Tomorrow he will fly and kill and kill again.
The neighbors say that he will get a shiny silver cross to
They speak as if eleven men is not enough of a cross to bear.
One of my uncles fought in World War II. Like many others who fought in war, he would never talk about that time in his life.
Sunday, November 10, 2013
The Institute for Law Teaching and Learning has just posted the latest issue of The Law Teacher on its website. This issue contains several articles on innovative teaching techniques. It also announces ILTL's 2014 conferences:
1. Assessment Across the Curriculum, Saturday, April 5, 2014 at University of Arkansas at Little Rock.
"WHO SHOULD ATTEND: This conference is for all law faculty (full-time and adjunct) who
want to learn about best practices for course-level assessment of student learning."
2. What the Best Law Teachers Do, June 25-27, 2014 at Northwestern University Law School.
"Published by Harvard University Press, What the Best Law Teachers Do introduces readers to twenty-six professors from law schools across the United States, featuring close-to-the-ground accounts of exceptional educators in action. Join us to interact with these instructors and learn more about their passion and creativity in the classroom and beyond."
A few days ago, one of my co-bloggers lamented the fact that many law teachers don't read about teaching and learning. (here) Reading The Law Teacher is an easy way to keep up with the latest in law teaching and learning scholarship. Also, What the Best Law Teachers Do (2013) is a comprehensive book on best practices in legal education. Finally, ILTL's conferences provide an excellent entry into new teaching methods.
From a new study by Professor Robert L. Jones (Northern Illinois) entitled "A Longitudinal Analysis Of The U.S. News Law School Academic Reputation Scores Between 1998 And 2013" and available at 40 Fla. St. U. L. Rev. 721 (2013) and on SSRN here. From the abstract:
This Article summarizes the results of a longitudinal study of the U.S. News academic reputation scores (“peer assessment scores”) for 172 law schools between 1998 and 2013. Among other things, the study reveals that there has been a significant downward trend in the academic reputation scores of law schools since 1998. Over 60% of the law schools in the data set finished the sixteen-year period with academic reputation scores that were lower than the ones with which they began in 1998. Less than 20% of the law schools in the data set managed to finish the period with academic reputation scores that were higher (even by .1) than the ones with which they began in 1998. In addition, the study found that the declines in academic reputation scores tended to be inversely correlated to the strength of the schools' academic reputation scores and U.S. News ranks. The schools that started the period with the highest academic reputation scores posted the largest declines as a group while the law schools that started with the lowest academic reputation scores experienced the most success in maintaining their scores. These trends strongly suggest that the U.S. News rankings themselves are influencing the way academics evaluate their competing institutions in the survey process, a fact that raises important normative questions about whether the academic reputation scores should figure so prominently in the U.S. News methodology.
As part of the study, furthermore, the law school academic reputation scores for the sixteen-year period were analyzed to determine whether there has been an “echo effect” between the law schools' academic reputation scores and their overall U.S. News ranks. The empirical analysis suggests that a law school's U.S. News rank does tend to influence its academic reputation score, particularly in instances where a law school is consistently “under-” or “over-ranked” relative to its academic reputation score. The Article concludes with an identification of those law schools whose academic reputation scores have improved or declined themost during the sixteen-year period, along with a brief discussion of some potential causes for those changes.
In a recent case, Judge Richard Posner deplored the unsophistication of lawyers about math and science. He pointed out that this lack of knowledge affects the outcome of real cases. From the ABA
Journal online (excerpts):
An inmate’s “plainly meritless” suit over a three-week lapse in his blood pressure medication highlights the legal profession’s discomfort with science and technology issues, according to
a federal appeals opinion by Judge Richard Posner.
The Chicago-based 7th U.S. Circuit Court of Appeals affirmed dismissal of the suit by Maurice Jackson in an Oct. 28 opinion that chastised the judges and the lawyers for failing
to cite medical evidence supporting the inmate’s claimed symptoms.
“Innumerable are the lawyers who explain that they picked law over a technical field because they have a ‘math block,’ ” wrote Posner, who is known for his interest in law and economics. “But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.”
The case was dismissed by a federal judge because neither defendant—neither the nurse practitioner nor the correctional counselor—was deliberately indifferent to the inmate’s plight. The nurse practitioner didn’t know the inmate wasn’t receiving his medication and the correctional counselor assumed the medical staff would deal with the medical issue.
But the case is troubling, Posner wrote, because the magistrate and the federal judge hearing the case assumed the inmate could present evidence leading to a reasonable inference that he suffered a serious medical condition as a result of the interruption in medication. And defense lawyers largely ignored the issue, he said.
“This lapse is worth noting,” Posner said, “because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or othe technological issue.”
Speaking for myself, I never would have succeeded in medicine or the sciences. I knew my deficiencies early in college.
Two posts down, one of my co-bloggers gave a definition of professional identity by Debbie Borman. I would like to offer my own definition of professional identity and distinguish it from related concepts:
Ethics is the rules of professional conduct, while professionalism is the ability to act in a professional manner, such as being polite, being thorough, and getting work done on time. (see David Thomson here) On the other hand, professional identity is a lawyer’s personal legal morality, values, decision-making process, and self-consciousness. It is "certain attitudes and habits of heart and mind that are thought critical to the practice and culture of the profession." (Barry Sullivan & Ellen S. Podgor, Respect, Responsibility, and the Virtue of Introspection: An Essay on Professionalism in the Law School Environment, 15 N.D.J. Law, Ethics, & Pub. Pol’cy 117, 118 (2001)) In addition, "the cultivation of professionalism necessarily entails the nurturing of a sense of professional self-consciousness and constructive introspection, and an attitude of respect and responsibility to others. . ." (Id. at 119)
(The above is influenced by a dialogue I had with David Thomson between our blogs a couple of years ago.)
Saturday, November 9, 2013
Recently, the prestigious firm of Clifford Chance issued a lengthy set of presentation tips for its women lawyers. The document generated controversy because of some it its “What Not to Wear” tips as well as its being sent only to the firm's women. Actually, most of the document’s advice is quite good and suitable for the male lawyers as well. Here is an article which includes the tips.
This is a new article by Professor Debbie Borman (Northwestern) entitled "The Concept of Professional Identify and the Three Apprenticeships" in 20 The Law Teacher 3 (Fall 2013). Here's an excerpt:
I define professional identity as an ability to assess legal issues from a human or non-legal perspective. Professional identity development contemplates the existential attitudes of individual authenticity and vulnerability, along with the holistic integration of intellectual tools, such as social scientific thought, into the social context.
Incorporating professional identity as an attorney necessarily involves the integration of bodies of knowledge outside of the law and making and keeping personal priorities such as work-life balance.
In teaching, ask your students the following questions:
• Who else are you?
• What else do you know?
• What did you study in college?
• What people and activities are important to you?
Law doesn’t exist in a vacuum; law is integrated into society.
Continue reading here.
Friday, November 8, 2013
In a recent article In Legal Rhetoric and Communication: JAWLD, Stacy Rogers Sharp offers an empirical study of how U.S. Supreme Court Justices confront the strongest arguments against their positions. She suggests that the rest of us could employ these techniques as well. Here is her brief summary:
The Justices fully inoculate against the most threatening counterarguments, but they do so strategically. First, the Justices lay the groundwork for the rebuttal by introducing counterarguments with damaging labels. They frame the counterarguments effectively by likening the counterarguments to tangible negative imagery through metaphors.
The opinions set apart the rebuttal by manipulating sentence structure and word choice to effect a favorable tone change. Finally, the Justices organize their rebuttals strategically: concluding with the weakest counterarguments and narrowing each rebuttal to one theme, making the response both more organized and more powerful.
Professor Rogers also notes the techniques that don’t succeed.
Thursday, November 7, 2013
In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust by Alfred S. Konefsky and Barry Sullivan.
Abstract: "This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.
In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary."
From a post by Professor Edward Zelinsky (Cardozo) at the Oxford University Press's Blog: "Add a Fourth Year to Law School." an excerpt:
President Obama has joined with other critics of contemporary legal education in calling for the reduction of law school to a two year program. The President and these other critics are wrong. Indeed, the remedy they propose for the ills of legal education has it exactly backward. Law school should not be shortened; it should be lengthened. The standard curriculum for a juris doctorate degree should be increased to four years.
Three considerations counsel the need for an additional year of law school:
First, there is today much more law to learn than there was in the past. There are today whole new fields of law which did not exist a generation ago, e.g., health care law. Moreover, within pre-existing areas of the law, the amount of law has expanded enormously over the last two decades.
Consider, for example, the area in which I write and teach, taxation. No one doubts that the current tax law is more complicated and extensive than the taw law in effect when I went to law school. Important subspecialties, e.g., pensions, partnership tax, and international tax, have grown in complexity and importance.
Many critics belittle the substantive business of legal education by dismissing my tax courses as theoretical or doctrinal. But my courses are where my students learn the law and there is much more law to learn than there was a generation ago.
Imagine a critic of medical education who looked at the explosion of medical science in recent decades and called for less medical schooling. That is precisely what the advocates of a two year JD program are doing.
Continue reading here.
At the American Awards, Singer Katy Perry performed her latest song dressed as a geisha against a backdrop of cherry blossoms, a Shinto shrine and taiko drummers. Was it racist? I viewed it as corny and way too retro. I might expect to see this sort of stereotypical performance in a 1940s movie.
Was it racist? Phyllis Heitjen thinks so. She is the age of our students. In her piece at Thought Catalogue she explains why. We’re not always attuned to racial sterotypes; stilt they influence our conduct. Consider these excerpts:
I am half-Korean. Unfortunately, this means that I have to be hyper-aware of the geisha trope, because it gets ascribed to my identity as a non-white person, as a woman, and as a sexual being, by the white America that doesn’t know that Asians are not all the same, and particularly by white male America which tends to unhealthily fixate on hyper-sexualized tropes regarding Asian women. I should not have to deal with this, but I do.
It’s not just Facebook, either. I can’t go a week on OkCupid [an online dating site] without being targeted as the object of some guy’s Asian fetish, typically some guy looking for a submissive partner, and I’m unfortunately far from alone.
This kind of racialized attention triggers intense, generalized anxiety about my romantic life and my body, so I feel personally offended when Katy Perry goes on national television in a sexed up “geisha” costume.
Some scammers are now targeting us—academics. In the scam world, creativity abounds. Here’s a warning from the blog of the American Historical Association:
The AHA Professional Division urges members to be aware of an increasingly common suspicious email targeting scholars in a variety of disciplines. The email consists of an offer by a supposed scholarly journal to publish a conference paper. Typically, the initial email contains grammatical errors and unprofessional language. The respondent who submits a paper for “peer review” soon learns that the paper has been accepted, but that thereis a “service charge” (for reviewing, editing and printing) that can run into the many hundreds of dollars. These solicitations have been sent from “editors” of journals that do not exist. Scholars who respond to such solicitations, and then revise a paper in the hope of having it published, run the risk of wasting their precious time—and money. The Professional Division recommends members diligently investigate the legitimacy of offers they receive via email from unknown sources.
Wednesday, November 6, 2013
From the ABA Magazine's Young Advocates Column, Litigation Section: "Opening Statements: Tips for Effectiveness in 15 Minutes or Less." An excerpt below.
Many lawyers overlook this truth. They begin opening statements with commonly bad phrases such as “good morning, ladies and gentlemen of the jury”; “first and foremost, thank you for your service”; and “please allow me to introduce you to my client.” They drone on and on and become mired in minutiae in a valueless attempt to explain every detail of their case. They employ unnecessary adverbs and haphazardly make bold promises. Such strategies do not create a remarkable first impression, let alone a lasting one.
How exactly should you begin your opening statement? And how should your opening statement continue through its conclusion? There is no set piece that will work for every trial. If there were, legal practice would be boring and trial outcomes would be predictable. However, there are guidelines that lawyers should adhere to.
1. Have the right approach.
2. Learn the fundamentals of effective storytelling at trial.
3. Know your audience.
4. Do not confuse the opening statement with the closing argument.
5. Explain bad facts.
6. Do not rely too much on visual aids.
8. Promise only what you know you can deliver.
9. Consider whether to comment on the trial process.
10. Remain flexible.
11. Conclude with your theme.
Click here for the full article.
The Harvard Law School: The Case Studies Blog recently featured the University of Denver's Lawyering Process Program.
The article begins, ''In the first-year Lawyering Process Program at the University of Denver Sturm College of Law, students are encouraged to 'lean forward' while learning and jump into their identities as lawyers." The article continues: "A cornerstone of the Denver program is feedback: from peers, professors, practitioners, and personal reflection. Rubrics break down assignments into discrete skills, with the goal of producing 'work [that] would need very little revision for a supervising attorney to use.' The program also self-evaluates, and recently scaled down its class sizes in response."
The article concludes: "Though Lawyering Process offers all of the content of a legal research and writing class, Thomson and his colleagues have re-envisioned the way material is presented. Thomson is a proponent and proud implementer of technology and innovation in the legal classroom, using iPads, clickers, wikis, and Case Map to make learning more interactive. The Lawyering Process program has also experimented with flipped classrooms and distance education. He explained, 'We have to prepare students for their future, not our past.'"
You can read the entire post here.
P.S. The Harvard Law School: Case Studies Blog contains numerous helpful articles on legal education.
No Laughing Matter: New Jersey Judge Chooses Standup Over Seat
A judge walks into a bar, and walks out a comedian . . .
We have reported before on the saga of Vincenzo August Sicari, a part-time New Jersey municipal judge probably better known for his other career – as standup comedian Vince August. His career in humor brought him into conflict with the New Jersey Advisory Committee on Extra-Judicial Activities, which in 2010 upheld an ethics opinion that August/Sicari’s entertainment career conflicted with his duties as a judge. On September 19, 2013, the Supreme Court of New Jersey upheld the ethics opinion, ruling that the two roles were incompatible, and that Sicari would have to choose which occupation he would pursue. Noting that as Vince August he had used ethnic and racial humor while playing a role on a reality TV show, the Court stated:
Most people who watch a complete episode of “What Would You Do?” would appreciate that these are actors following a script. The same cannot be said about a person who starts to watch an episode and then changes the channel. Others might realize the episode is a staged encounter but are outraged that the topic of racial or sexual discrimination is presented as entertainment. The Court cannot discount the possibility that a person who has attended a comedy club in New York City will find himself or herself before Judge Sicari in South Hackensack. In the course of his routines, Sicari has demeaned certain people based on national origin and religion and has revealed
his political leanings. The Court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings.
Faced with a choice, Sicari opted to continue with his comedy career and resigned his judicial seat. He will continue to practice as a lawyer while moonlighting in comedy.
Lawyers Cleared of Ghostwriting Charges
The United States Court of Appeals for the 11th Circuit overturned a decision by a Federal bankruptcy judge to impose sanctions on two Florida lawyers for “ghostwriting,” after a paralegal at their firm helped a client fill in a bankruptcy form. The bankruptcy judge ruled that the lawyers violated 11 U.S.C. §§ 527 and 528(a)(1), and Florida Rules of Professional Conduct 4-3.3(a)(1) and 4-8.4(c) by failing to disclose the firm’s aid to the client in filing a petition to stall
a foreclosure proceeding.
The Court of Appeals agreed that under the Florida version of Rule 1.2
of the Rules of Professional Conduct, a lawyer who assists a client in the
drafting of documents to be filed pro se must indicate on those documents that
they were prepared with the assistance of counsel, to avoid misleading a court.
However, the court concluded that by merely recording the client’s answers in a
standard fill-in-the-blanks form, designed for the convenience of pro se
litigants, the law firm did not engage in “drafting” within the ordinary
meaning of the term, and therefore it did not violate the Florida rule.
So the lawyers are no longer haunted by the specter of sanctions.
They need not be spooked about the shadow of ghostwriting, as long as they
comply with the spirit of the rule and remain a shade careful.
Tuesday, November 5, 2013
Sometimes, our irritation grows when we encounter a verb that didn’t used to be a verb. Examples might include “to defriend” and “to conference.” What about “to disrespect”?
Over at “Daily Writing Tips,” we learn that the word appears in the Oxford English Dictinary:
disrespect: v. trans. The reverse of to respect; to have or show no respect, regard, or reverence for; to treat with irreverence. Hence disre￼spected ppl. a., -ing vbl. n.
Moreover, the verb goes back to the 17th century.”
Sat. to King, Juvenilia (1633) 346 Here can I smile to see..how the mean
mans suit is dis-respected.
1633 BP. HALL
Hard Texts N.T. 11 If he love the one he must disrespect the other.
Ecclesiastici 231 (Basil) To honor him, and dis-respect his Friend, was to
stroke a man’s head with one hand, and strike him with the other.
Collect. 26 Apr., He was disrespected in Oxford by several men who now speak
well of him.
1852 L. HUNT
Poems Pref. 27 As if..sorrow disrespected things homely.
1885 G. MEREDITH Diana I. 257 You will judge whether he
I guess we should be careful about getting too snobbish and disrespecting history.
This is an article from the November issue of Campus Technology Magazine called "Is Tech Changing the Way Students Write?" Some educators believe that it is, but not for the better. Because students read online material in a more superficial fashion, their writing tends to reflect that same level of superficiality according to Naomi Baron, Executive Director for the Center for Teaching, Research and Learning at American University and author of the forthcoming book from Oxford University Press "Words Onscreen: The Fate of Reading in a Digital World." As Professor Baron says: "Students get the message that what they write should be short, and it doesn't matter as much because no one is going to read it more than once . . . . This attitude translates into a certain amount of sloppiness." Here's the link.
Hat tip to Professor Eric Young.
Monday, November 4, 2013