Saturday, April 27, 2013

Why to Believe in Others

Below is 1972 video of Viktor Frankel, a renowned psychologist and author best known for his book, Man's Search for Meaning.   Frankel's greatest accomplishment was becoming an unflinching realist and idealist -- a person who simultaneously sees what is and what could be.   To my mind, it would be impossible to get both concepts into proper focus without reading Frankel's book, which I found to be one of the most emotionally jarring and difficult, yet necessary and valuable, experiences of my life. If you are wondering how this could be, read the book.

In the rare footage below, Frankel explains how we harm the world by not hoping for and expecting the very best in others.  

I think the point Frankel makes here has special significance for educators. [posted by Bill Henderson]

April 27, 2013 in Current events, Video interviews | Permalink | Comments (3)

Friday, April 26, 2013

Is Law School Reform Going to Come Top Down or Bottom Up?

Earlier this week, I participated in the ABA Taskforce on the Future of Legal Education (see NLJ coverage here). Ordinarily when I am part of a deliberative meeting of a regulatory or accrediting body, I don't write about it, as it would be a breach of decorum and chill a candid exchange of views, at least prospectively.  But this event was different -- it was webcast live and internet archived, and thus a public meeting. See ABA website.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple

The accreditation system we have created is an anchronism.  But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one -- we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.

To illustrate this point, I am going to share some personal history that I rarely discuss among my academic colleagues because, well, it would never come up in the course of ordinary conversation. Before I went to law school at age 35, I was a firefighter-paramedic for nine years.  For the last five, I served as our Local's union president.  To this day, I proudly pay union days so I can stay retired-active.  

When I look at the ABA Accreditation Standards, I am reminded of Ohio Revised Code 4117, which is the state's collective bargaining law for public employees.  For police and fire, unlike teachers, we had binding interest arbitration for collective bargaining.  What does this mean?  Basically, if we were unhappy with the offer made by the city -- and we always were -- we took our case to a state-mandated arbitrator, compared our wages and working conditions to firefighters who were getting a better deal (the city would do the opposite), and we got a decent wage & benefits increase, every time.  It was not if we would get a raise, but how much.  The teachers, in contrast, had to go on strike.  The effect of this law was not lost on me. My sister was a teacher in an adjacent city, and over time I made a lot more than her.  

This law was in place because those who came before me organized themselves into an interest group, lobbied, and got a favorable law put on the books to benefit them.  My fire chief, Joe Sweeney, was one of those elders -- he would point to the union charter posted in the hallway to remind me that he was one of original signatories.  By forming a union and working for over ten years to pass 4117, Joe and others ended the era of "collective begging." The resulting union wages enabled him to raise six kids and enjoy a decent pension.  And in exchange for that, Chief Sweeney, when he was a captain and later as a chief, demanded, absolutely demanded, that we comport ourselves as public servants.   

In truth, the public-private deal struck by 4117 only advanced the public interest when we had guys like Joe Sweeney who lived and breathed a sense of fairness.  Joe, just through how he led this life, kept several dozen firefighters honest and focused.  As the old guard retired, and our pay kept getting ratcheted up, it became harder to educate the new guys about how this great job came to be.  Many believed they "earned" their positions through merit because, after all, they rose to the top of a competitive hiring process.  So, through the way we behaved, the public interest case for 4117 was made marginally weaker.

I see the the same dilemma when I review the ABA Accreditation standards.  For example, take a look a Standard 405, which pertains to "Professional Environment."  

(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b) A law school shall have an established and announced policy with respect to academic freedom and tenure ... 

(c) A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure ... 

(d) A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership ...

These provisions were the result of the same type of collective action that produced 4117.  And their purpose, just like 4117, is to lock-in privilege.  We academics can offer a plausible justification for this privilege -- for example, without 405(b), writing this essay could cost me my job.  But the fact is we need to justify that privilege through our behavior; otherwise, just like now, we become vulnerable.

At the behest of the ABA Task Force, the formal rules governing legal education may or may not change.  But that is largely irrelevant to what the public, including prospective students, perceive as the value of legal education. And that value is, in the aggregate, quite low.

Reform in legal education is not a light switch.  It is mindset that affects how we spend our time and who we spend it with. 

Here is a simple example.  For the past semester, I have meet each week with my fellow instructors who teach Indiana Law's Legal Professions class to (1) review the efficacy of our course materials, (2) design in-class exercises, (3) discuss and coordinate assessments, (4) coordinate our speakers series, and (5) allocate and share work among the team.  This is not class prep; this is weekly course and curricular improvement because collectively the instructors want to move the needle.  I also met weekly with upper level students who facilitate some of the course objectives.  This 1L course is focused on behaviors and competencies needed to be successful (the Fromm Six and others like teamwork).  It is hard but very rewarding to teach.  Over the last five years, we have improved, largely through qualitative and quantitative data plus reflection.  And we continue to make progress on defining and reaching our goals. 

If we want reform, well, let's work on it and actually get something done that will inspire others. Eventually it will take hold and take off, with or without changes to the ABA governing standards.

[posted by Bill Henderson]

April 26, 2013 in Current events, New and Noteworthy | Permalink | Comments (3)

Alternative Litigation Funding and the "Ick" Factor

Posted by Michele DeStefano

Last week I was at a conference at DePaul University on Tort Law and Social Policy: A Brave New World: The Changing Face of Litigation and the Law Firm Finance.

Brave new world
The conference was centered on Alternative Litigation Funding [ALF] - also known as Third Party Litigation Funding or Financing, Third Party Funding or Financing.

ALF is when parties, unrelated to a lawsuit, provide funds to a claim holder to help fund the party’s pursuit of a potential or pending lawsuit and there is no recourse if the claim holder loses. Arguably, ALF has been around (in some form or another) for years in the United States - in the form of non-recourse loans, transfer of claims in bankruptcy proceedings, transfer of patent law claims, and contingency fees.

In the past few years, ALF has received more and more popular press and begun to attract the attention of more and more law professors like Anthony Sebok, Vicky Waye, Susan Lord Martin, and Maya Steinitz to name a few. When I first began writing about and consulting on the industry, many law professors did not know it was allowed in more than 50% of U.S. States - let alone that it existed. (This was true as recent as in 2011 when I presented an article that used ALF as an example of the importance of non-lawyer influence on lawyers). The recent attention ALF has received has heightened awareness of the existence of ALF in the U.S. but also the importance of the debate about whether and how it should be allowed and regulated.

At the DePaul conference, experts in the industry, along with experts in tort law reform, approached the debate in different ways.

Instead of evaluating ALF from a traditional, formalist view (cranking through the ethics rules to see if there is a violation), Nora Freeman Engstrom took a functionalist perspective to see how ALF will affect the tort marketplace.

Michael Abramowicz conducted a neoclassical and economic market analysis about how rational parties would or ought to act.

Keith Hylton developed a simple economic model to analyze the welfare implications of third party funding of legal claims.

Charles M. Silver compared ALF to insurance arguing that both serve similar purposes and that many of the objections made against ALF are similar to that made against liability insurance and therefore ALF should not be abandoned.

I took a more operational approach analyzing how litigation funding interacts with our legal system and doctrines of confidentiality like the attorney-client privilege, work product doctrine, and their doctrinal derogations (e.g., the NDA) (Click here to see my slide presentation).

Abraham Wickelgren analyzed whether admitting consumer financing agreements to the court and making it part of the case record would improve the quality of litigation and/or decrease the interest rates by third party lenders to plaintiffs.

W. Bradley Wendel took a different approach altogether. He explored an undercurrent in the opposition to ALF that he described as the “ick” factor.(Many of you might have been introduced to the the “ick” factor in a Friends episode in the 90s).  Here the "ick" factor is "justice for sale."

Essentially, Wendel made the point that historically there is a distaste (and/or distrust) of the commodification of any aspect of litigation and that this distaste of commodification drives some of the opposition to ALF.   Although Wendel points out that ick-factor objections shouldn't be taken seriously, they continue to be made.   See the comments made by representatives of the Chamber of Commerce (here) and the American Tort Reform Association (here) and a recent article in Forbes (here).  Press on cases like the one involving Burford and Chevron contribute as well. (Ironically, this article came out the last day of the conference).

Although most (if not all) of the presenters were proponents of ALF in some form, most acknowledged and attempted to address the legitimate concerns and arguments against third party funding. Some proposed regulation; others proposed doctrinal revisions.

But as to Wendel’s identified “ick” factor, however, a solution to that force is yet to be found.  Perhaps the next group of scholars to meet at a litigation funding conference will tackle that one.

April 26, 2013 | Permalink | Comments (1)

Wednesday, April 17, 2013

The Fromm Six

Last month, The National Jurist published an article I wrote that was a tribute to Leonard ("Len") Fromm, Dean of Students at Indiana Law from 1982 to 2012.  Len passed away in February. The editors at The National Jurist supplied the official title, which I thought was spot on: "What Every Law Student Needs to Excel as an Attorney: Introducing the Fromm Six." [original PDF]  I am republishing the essay here because I want as many people as possible to know the story and contribution of this truly great man. [posted by Bill Henderson]

Introducing the Fromm Six, National Jurist (March 2013).

FrommOne of the greatest people in legal education that you have never heard of is a man named Leonard Fromm.   Fromm served as Dean of Students at Indiana University Maurer School of Law from 1982 to 2012.  On February 2, 2013, Dean Fromm passed away after a relatively short battle with cancer.

I want to discuss an innovation that Dean Fromm contributed to legal education—a contribution that, I predict, will only grow over time.  This innovation is a competency model for law students called the Fromm Six.  But first, let me supply the essential background.

After several years in counseling and adult education, Dean Fromm joined the law school in 1982 to preside over matters of student affairs.  Over the course of three decades he quietly became the heart and soul of the Maurer School of Law.  Dean Fromm was typically the first person that new students met during orientation—the law school administrator who completed character and fitness applications for state bar authorities and the voice that called out their names at commencement (with an amazing, booming tenor).   During the three years in between, Dean Fromm counseled students through virtually every human problem imaginable.  His most difficult work was done in his office with his door closed and all his electronic devices turned off.  It was private work that was not likely to produce much fanfare.

During his tenure at Indiana Law, Dean Fromm’s title was expanded to include Alumni Affairs.   The change did not expand his duties in any significant way—Len was already working 70 hours a week in a job he loved. Rather, the change reflected the fact that Indiana Law alumni associated (and often credited) Dean Fromm with the deepest and most abiding lessons of law school—overcoming self-doubt; confronting self-destructive behavior; recognizing the importance of relationships; finding the courage to try something again after disappointing failure; or discovering the ability to see the world through the eyes of one’s adversary or opponent.

One of the cumulative benefits of Dean Fromm’s job was the ability to track the full arc of lawyers’ careers, from the tentative awkwardness of the 1L year, to involvement in the school’s extracurricular events and social scene, to coping strategies for students not at the top of their class, and the myriad, unexpected turns in our graduates’ professional careers.  During his tenure he interacted with nearly 6,000 students and stayed in contact with a staggering number of them after graduation.  Invariably, he saw the connection between law school and a student’s subsequent success and happiness later in life (noting, in his wise way, that professional success and happiness are not necessarily the same thing).

In 2008, I started collaborating with Len on a project to construct a law school competency model.  Our first iteration was a list of 23 success factors  which we constructed with the help of industrial & organizational (IO) psychologists.  Although valid as a matter of social science, the list was too long and complex to gain traction with students.  In 2010, the faculty who taught Indiana Law’s 1L Legal Professions class got together and reduced the list of competencies to 15.  Once again, we found it was too long and complex to execute in the classroom.  

During the summer of 2011, as we were debriefing the challenges of another year in our competency-based 1L Legal Professions course, Dean Fromm said, “I have an idea.” A short time later, he circulated a list of six competencies that were appropriate to 1Ls and foundational to their future growth as professionals.   Finally (or At last), we now had a working tool!  Moreover, none of the professors teaching the Legal Professions course, including me, wanted to revise a single word—a veritable miracle in legal academia. 

Upon reviewing the list I kidded Len that the new IU competency model should be called “The Fromm Six”, which was a play on the famous “Big Five” personality model that forms the bedrock of scientific personality testing. (Len had a Masters degree in Counseling Psychology as well as a law degree.)  He just laughed.  But the “Fromm Six” had a lot of resonance with the rest of us so the label stuck.

In May 2012, Dean Fromm retired from his position as Dean of Students and Alumni Affairs.  At age 70 he was preparing to join us in teaching the 1L Legal Professions course.  This was to be in addition to his usual Negotiations class, where he was a master.  Instead, within a few weeks of retirement, Len was diagnosed with a virulent cancer that never let go.  

None of us can make sense of Len’s death as it abruptly ended a life of complete, unselfish service to a large community of students, faculty and graduates.  But, as best I can, I am inclined to pay tribute to his life.  And to my mind, there is no greater tribute than to publish and publicize the Fromm Six so that another generation of lawyers can benefit from his wisdom, grace and kindness. 

Here are the Fromm Six:

Self-Awareness Having a highly developed sense of self. Being self‐aware means knowing your values, goals, likes, dislikes, needs, drives, strengths and weaknesses, and their effect on your behavior.  Possessing this competence means knowing accurately which emotions you are feeling and how to manage them toward effective performance and a healthy balance in your life. If self‐aware, you also will have a sense of perspective about yourself, seeking and learning from feedback and constructive criticism from others.

Active Listening The ability to fully comprehend information presented by others through careful monitoring of words spoken, voice inflections, para‐linguistic statements, and non‐verbal cues. Although that seems obvious , the number of lawyers and law students who are poor listeners suggests the need for better development of this skill.  It requires intense concentration and discipline. Smart technology devices have developed a very quick mode of “listening” to others. Preoccupation with those devices makes it very challenging to give proper weight and attention to face‐to‐face interactions. Exhibiting weak listening skills with your colleagues/classmates/clients might also mean that they will not get to the point of telling you what they really want to say.  Thus, you miss the whole import of what the message was to be.

Questioning The art and skill of knowing when and how to ask for information. Questions can be of various types, each type having different goals. Inquiries can be broad or narrow, non‐leading to leading. They can follow a direct funnel or an inverted funnel approach.   A questioner can probe to follow up primary questions and to remedy inadequate responses.  Probes can range from encouraging more discussion, to asking for elaboration on a point, to even being silent. Developing this skill also requires controlling one’s own need to talk and control the conversation.

Empathy Sensing and perceiving what others are feeling, being able to see their perspective, and cultivating a rapport and connection. To do the latter effectively, you must communicate that understanding back to the other person by articulating accurately their feelings. They then will know that you have listened accurately, that you understand, and that you care. Basic trust and respect can then ensue.

Communicating/Presenting The ability to assertively present compelling arguments respectfully and sell one’s ideas to others.  It also means knowing how to speak clearly and with a style that promotes accurate and complete listening.  As a professional, communicating means persuading and influencing effectively in a situation without damaging the potential relationship.  Being able to express strong feelings and emotions appropriately in a manner that does not derail the communication is also important.

Resilience The ability to deal with difficult situations calmly and cope effectively with stress; to be capable of bouncing back from or adjusting to challenges and change; to be able to learn from your failures, rejections, feedback and criticism, as well as disappointments beyond your control. Being resilient and stress hardy also implies an optimistic and positive outlook, one that enables you to absorb the impact of the event, recover within a reasonable amount of time, and to incorporate relevant lessons from the event.

April 17, 2013 in Blog posts worth reading, Innovations in legal education, New and Noteworthy | Permalink | Comments (0)

Sunday, April 7, 2013

Shameless Commerce Division: A Promo for Unincorporated Business Entities, 5th Edition

Posted by Jeff Lipshaw

If you teach unincorporated business entities (LLCs, partnerships, and agency), you may be interested in the LexisNexis promo in which I shamelessly plug the thing.  My overall reaction:  a face made for radio, but what I'm saying is accurate.

 

April 7, 2013 | Permalink | Comments (2)

Thursday, April 4, 2013

A Law Video that is Destine to go Viral ...

So we might as well face the music now.  This incredibly powerful video was produced by www.rethinklaw.org.   And who created Rethink Law?  The same folks discussed here.

Rethink Law (US) from Liana Guzman on Vimeo.

The revolution is here.  It is going to happen. For a detailed analysis of the rise of what I call "Susskind's World" and the new legal entrepenuers, see Part II.C of The Blueprint for Change.

April 4, 2013 in Current events, Innovations in law, Law Firms, New and Noteworthy, Structural change | Permalink | Comments (5)

Tuesday, April 2, 2013

"Wireless Medicine" -- Is Law Next?

by William Henderson

A good friend of mine, Ed Reeser, who is a lawyer, sent along this video on the "Wireless Medicine" movement, which is apparently led by Dr. Eric Topol, one of the nation's leading cardiologists, author of the book, The Creative Destruction of Medicine.  Its subtitle is, "How the Digital Revolution Will Create Better Health Care."  

Seeing a connection to the burgeoning intersection of law and technology, Ed wrote:

"I don't send videos like this around, especially to busy people like yourselves. But this is a much better way to make a point on how technology is totally changing the landscape, and why it is so critically important to understand where it is going and why.  .... The prospect for massively improved capabilities for quality service at lower cost are just beginning to emerge, and this is where the early adopters of the right approaches will have advantage. Understanding which will be right......is just the beginning of the game.  If you think law is being impacted by technology.....watch this. Then, go back to your reflections on law and rethink the possibilities of where technology is going to impact law and how to become a positive driver of change with it, rather than roadkill in resisting it. "

Visit NBCNews.com for breaking news, world news, and news about the economy

April 2, 2013 in Cross industry comparisons, Structural change, Video interviews | Permalink | Comments (0)

Monday, April 1, 2013

Question Authority: Law students have an important role to play in the future of legal education

National-jurist-logoI continue to be grateful to the National Jurist for giving me an opportunity to write a column targeted directly to law students.   As an educator, I have found these assignments very useful toward developing a better understanding of my own students at Indiana Law. In the process, I hope I am providing some useful, realistic guidance to the next generation of lawyers

In my 2013 column, I urge law students to ask us law professors tougher questions about the current state of legal education, albeit with respect.  If they ask tough questions, we will all be better off.  It is republished below. [Original PDF]

Question Authority: Law students have an important role to play in the future of legal education, National Jurist (Jan. 2013)

by William D. Henderson

I recently gave a keynote address in which I admonished a large group of law students to “question authority.”  It certainly sounds cliché – after all, it was the rallying cry of countercultural icon Timothy Leary during the 1960s.  A decade later, it was mainstream bumper sticker. But the admonition has a much more distinguished pedigree.  Benjamin Franklin is reported to have said that “the first responsibility of every citizen to question authority.”  

I wish I had known the source of the quote when I gave the speech.  But regardless, it fit the context. Today’s law students are embarking upon an uncertain future.  Although I can understand the impulse to trust your elders, there are times of extreme upheaval when they cannot be counted upon to deliver wise counsel.  

Reluctantly, through the passage of time, I have become an elder.  And for the legal profession and legal education, we are entering one of those periods of great tumult.   To come out the other side, better and stronger, we need two things from the up-and-coming generation of law students. 

 First, we need your skepticism to question our methods and our motives.  The legal marketplace is undergoing significant changes.   We did not adequately anticipate these disruptions.  In addition, we do not fully understand their breadth and depth.    Because we are human, we are reluctant to admit our confusion.   Even worse, we may even deny there is a problem.  After all, the confluence of high student debt and a soft legal market happened on our watch. 

Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals.  All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings.  As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others.   Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals. This is a goal worthy of your time and talent.

 If you are going to be effective at questioning authority (and unless you are going to be effective, why do it all?), you need to practice.  Well, I am 50-year old tenured law professor.  I create the syllabus, I decide how you will be evaluated, and I assign student grades.  Much to my chagrin, I have accumulated some authority.  So feel free to practice your questioning on me. 

Here is the world as I see it.  I could be wrong.  But even worse, I may be partially right.  

The entry-level job market for law graduates is tough right now.  But if you had not enrolled in law school, your employment prospects would be no less murky.  As noted by the popular author, Daniel Pink (himself a law school graduate), in his book, A Whole New Mind, we are living in time where every young person must compete against three formidable forces:  Asia, Automation, and Abundance. 

The Asian continent is formidable because nations such as India and China are leapfrogging into world economy with enormous quantities of ambitious, technically competent young people. 

Automation is formidable because so much of human activity, including law, is reducible to patterns.  This means solutions can be standardized, thereby displacing a significant amount of mental analysis that lawyers now perform for clients on a matter-by-matter basis.  (See also my September 2012 column, “Why are we Afraid of the Future of Law?”) 

Abundance is formidable because the flipside of the consumer society that has given us so many cheap, high quality choices is a producer economy in which expensive university educations provide us with skills that becoming more and more fungible.  

To my mind, today’s university educators are not responsible for the challenges created by Asia, Automation, and Abundance.  These are massive structural and economic forces that are hard to forecast and impossible to control.  Yet, as university educators who benefit from your tuition dollars, we are responsible for formulating effective responses.  Although we might prefer to focus on a different set of challenges, this one should take top priority because its weight falls disproportionately not on us, but on you.

 So you need to ask us, “How well is this education helping us adapt to the challenges of Asia, Automation and Abundance?”  Some of us might reply that the threat is overstated.  Well, are you convinced?  What evidence supports this assessment?   

Alternatively, others of us might reply that the challenges are very real, but fortunately, the core elements of traditional legal education are an excellent preparation.  Well, are you convinced?  Further, is it possible that our inability or reluctance to retool may cloud our judgment and influence our reply?  The iconoclastic author and economist John Kenneth Galbraith once observed, “Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.” 

A third response may be, “I don’t know.  These are a hard set of issues.  And they need to be solved.”  When a professor responses in this way, it is hard to question their motives.  Further, you may have found someone with authority who is willing to take up your cause. 

At the beginning of this essay, I failed to mention one key proviso to my “question authority” admonition.  I told the law students that when they question authority, they should do it respectfully.  Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect.  Your elders did not create the challenges that lie ahead.  We are not your enemy.  Our limitation is that we are human, and therefore imperfect; and so are you. 

 Yet, if you question authority persistently but respectfully, you will be doing yourself, legal education, and the legal profession an enormous service.

 If you think my ideas and analysis are wrong, you are free to question my authority.

April 1, 2013 in Blog posts worth reading, Current events, Structural change | Permalink | Comments (1)