Legal Skills Prof Blog

ABA issues working paper on outsourcing

Outsourcing has become a hot topic since the downturn in the legal job market.  Perhaps it will now become an even larger issue given that Thomson Reuters has announced the acquisition of an Indian legal outsourcing company.

Accordingly, the ABA has released a working paper on outsourcing.  From the Legal Blog Watch:

The draft does not propose changing any of the rules themselves, but just adding to the comments on the rules. Essentially, all the additional comments say is, "If you're gonna do it, do it right." But they say it much purtier. For example, the proposed comment to Rule 1.1:

[7] A lawyer may retain other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client provided the lawyer reasonably concludes that the other lawyers’ services will contribute to the competent and ethical representation of the client. The reasonableness of the conclusion will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal and ethical environment in which the services will be performed. When retaining lawyers and others outside the lawyer’s own firm, the requirements of Rule 5.5 (a) must be observed. When using the work of nonfirm lawyers in providing legal services to a client, a lawyer must also reasonably conclude that such work meets the standard of competence under this Rule. If information protected by Rule 1.6 will be disclosed to the nonfirm lawyers, informed client consent to such disclosure may be required. For example, if the rules, laws or practices of a foreign jurisdiction provide substantially less protection for confidential client information than that provided in this jurisdiction, the lawyer should obtain the client’s informed consent to such disclosure.

The draft report accompanying the proposed changes gives a brief history of legal outsourcing, tells readers how impressed they should be by how much background material the commission looked at before coming up with this draft, and has a throw-in line about how sensitive the commission is to the current job market for lawyers.

You can read more here courtesy of the LBW.

(jbl).

U. Colorado Professor Ward Churchill loses wrongful termination case on appeal

Professor Ward Churchill, who became the poster-child for academic freedom - or scholarly malfeasance depending on which party you represented, has lost his legal appeal challenging the U. of Colorado's decision to terminate the tenured professor.  As reported by the Denver Post:

The Colorado Court of Appeals has upheld a lower court decision denying University of Colorado professor Ward Churchill's effort to get his job back.

The court ruled that Denver District Judge Larry Naves was right to direct a verdict in favor of the university and to find that the university was entitled to "quasi-judicial immunity."

. . . .

Churchill's termination came after an essay he wrote that likened some victims of the Sept. 11, 2001, attacks to a World War II Nazi official. CU investigated whether his essay was protected under the First Amendment and found that it was. But while the investigation was underway, academics came forward and accused Churchill of plagiarism and fraud in scholarly writings, which led to his termination.

Churchill sued the university and was awarded $1 in damages by Denver jurors who determined that he was fired in retaliation for his speech.

But then-Chief Judge Naves, who has since left the bench, decided not to give Churchill his job back and set aside the jury's verdict. In a decision that was left until after the trial to decide, Naves also ruled that CU's regents, who are elected, acted as a "quasi- judicial" panel that had immunity from the lawsuit.

You can read more courtesy of the Denver Post here.

Hat tip to the Chronicle of Higher Ed.

(jbl).

Does literacy come at cost of other cognitive powers?

Unlike speech, there isn't a portion of the human brain devoted to reading or writing.  We're not hardwired to do either and thus neuroscientists are beginning to ask whether the cognitive resources used for those activities come at the expense of other skills.  As reported in the Chronicle of Higher Ed:

[R]eading is one of those complex skills that emerged in an evolutionary blink of the eye, in the Middle East about 5,000 years ago. It is also a skill reserved until the last two centuries for a very small percentage of humanity. That’s a strong circumstantial case that to read we must be appropriating parts of the brain that evolved for other purposes and re-wiring them to make sense of written language.

. . . .

[Leading French researcher] Dehaene and his colleagues recruited volunteers in three groups: people who became literate in childhood, people who learned to read as adults, and illiterates. They then used brain imaging to find the ways in which literate and illiterate brains differ. As Science summarizes it, 'the junction of the left occipital and temporal lobes of the brain' and 'parts of the left temporal lobe that respond to spoken language' differ between literate and illiterate brains. When something gets 'repurposed,' it stands to reason that the original purpose might not be served quite so well. Does literacy bring tradeoffs?

Maybe. If you learn to read as a child, the part of the occipital-temporal cortex that recognizes human faces is smaller than it is in people who learn to read later or who remain illiterate. Dehaene and his colleagues don’t yet know whether the difference in size translates into a degradation of ability.

You can read the rest here.

(jbl).

More Courts Opt for Digital Audio Recordings Online

Two federal district courts and six bankruptcy courts now offer digital recordings online through PACER, a service of the federal judiciary. And another 22 courts are planning to offer digital audio access. Here’s a report from U.S Law Week online.

(ljs)

The Royals Choose an Auspicious Wedding Date

Prince William and Miss Middleton have decided to hold their wedding on  April 29, 2011. That date is an auspicious one. No doubt they were aware that it is the birthday of Oliver Ellsworth, a Connecticut delegate to the Constitutional Convention and third Chief Justice of the United States Supreme Court.

Happy Thanksgiving to all!

(ljs)

The phrase "logic dictates" is a poor way to argue your case that the 3rd year of law school is unnecessary

Despite some intuitive appeal, I'm not the only one who doesn't understand the legal basis for this Georgetown Law student's argument that the third year of law school piles on unnecessary debt in exchange for impractical or meaningless electives.   (The student took off his third year of legal education to sue the California Bar arguing that he should be allowed to take the exam after only two years of law school).  His arguments were rejected right up to the U.S. Supreme Court and one commentator offered these reasons:

Michael Kessler, an assistant professor of government and the Assistant Director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown, is critical of Gordon’s unsuccessful petition and legal arguments.

'It’s a far-fetched, poorly written brief that glides over the salient points as if nine justices will be magically persuaded to his views by the inclusion of ‘Logic dictates’ at the beginning of a sentence, Kessler said.

Kessler also believes Gordon misinterpreted the Equal Protection and Due Process clauses.

'The petition is all over the map on this, Kessler said. 'Great way to imagine [the law], but the law doesn’t work that way.' While Anthony Clark Arend, the director of the Master of Science and Foreign Service and current adjunct law professor at the Law Center who also founded the Institute for International Law and Politics at Georgetown, said he found the case interesting, he thought there was little legal ground for Gordon’s case.

Logic dictates that GU won't be getting any alumni gifts from this student.  You can read more courtesy of The Hoya, the GU student newspaper.

Hat tip to Above the Law.

(jbl).

An important reminder to be grateful this Thanksgiving - lawyers, especially take note

Below is an important reminder courtesy of Above the Law to be grateful this Thanksgiving, even if your life isn't going exactly as you'd like in this terrible economy.   Ironically, the online ABA Journal Blog published on the same day as the below quote from ATL, the results of a study by a "gratitude researcher" from UC Davis who found that lawyers, in particular, are second only to teenagers in their lack of gratitude.

In light of that, all you lawyers our there, please keep the following in mind this Thanksgiving:

I realize some readers may be unemployed and other lawyers are not happy in their jobs. You still have plenty of reasons to give thanks for what you do have.

Not everyone has the opportunities to go to college and law school, and not everyone possesses the abilities to read, to argue, to counsel and to negotiate. While not all of us are millionaires, most of us are comfortable, and we should not take our comforts, or our health and welfare, for granted.

– Molly Peckman, director of associate development at Dechert, in an article for The Legal Intelligencer

Happy Thanksgiving to all our readers (for whom everyone at the Skills Prof Blog is grateful).

(jbl).

Lawyer's Guide to LexisNexis CaseMap

CaseMap seems to be popular in this area. The LexisNexis software permits integrating  case  law, legal analysis, and factual evidence of all sorts. The ABA Law Practice Management Division has just published “A Lawyer’s Guide to LexisNexis CaseMap” by attorney Dan Siegel. Here’s the ad.

(ljs)

The Royals Choose a Wedding Date

Prince William  and Miss Middleton  have decided  to hold their wedding on April 29, 2011, at  Westminster Abbey. No doubt, they are aware  that April 29 marks the birthday of Oliver Ellsworth, a delegate to the Constitutional Convention and third Chief Justice of the  United States Supreme Court. He was known as an excellent lawyer and a tightwad. How nice of the Royals to  give a nod to this former colony.

Happy Thanksgiving to all!

(ljs)

Must You "Date Stamp" an E-Filing?

Common sense says NO, and stop wasting the court's time with losing arguments. From U.S. Law Week online:

A petition seeking review of a National Labor Relations Board decision that was filed by a union complying with the court's electronic filing procedures satisfied the requirements for a “petition for review” even though it was not “stamped by the court with the date of filing” as required by a federal statute, the U.S. Court of Appeals for the Second Circuit held Nov. 12 (Local Union 36, International Brotherhood of Electrical Workers v. National Labor Relations Board, 2d Cir., No. 10-3448-ag, 11/12/10).

Judge Gerard E. Lynch said that “where a party files a petition for review in the Second Circuit [which requires e-filing], and then serves the agency with the petition accompanied by the email, bearing the date and time of filing, by which the petition was filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).”

A literal interpretation of Section 2112(a)(2) would lead to the “absurd result that no qualifying ‘petition' would ever exist when a party sought to file a petition for review in a court of appeals, such as ours, that has adopted an electronic filing system,” the court said.

The NLRB issued a decision and order on Aug. 16, 2010, finding that Rochester Gas & Electric Co. violated the National Labor Relations Act by refusing to bargain with a union.

Rochester Gas filed a petition for review of the order in the District of Columbia Circuit on Aug. 20, and served a non-date-stamped copy of the document on the NLRB by overnight delivery service.

On Aug. 26, the union filed a petition for review in the Second Circuit, following the court's mandatory procedure by transmitting a copy of the document in electronic form to a designated court e-mail address. Under the Second Circuit's rules, such an “initiating document” is considered filed in the court as of the date and time indicated on the e-mail submission.

The union served the petition on the NLRB along with its e-mail to the Second Circuit, which reflected the date it was submitted to the appellate court.

(ljs)

Including "temp" legal work on your resume may hurt applicants' chances for full-time employment

That's the advice from the Careerist blog to unemployed or laid-off lawyers who've had to do contract work to tide themselves over until the market gets better.

It's bad enough to be laid off but . . .  these lawyers face another potential stigma: being branded as untouchable for taking on certain contract positions, such as document reviewer. So is it better to just leave off low-brow legal work on your resume, if your goal is to return to a big firm?

Several [blog readers] . . . advised against putting document review work on resumes, calling it a 'scarlet letter.' Writes one reader: 'If you tended bar to make ends meet while job hunting, you wouldn’t put that on your resume, would you? Approach temping the same way.'

On the other hand, the Careerist asked one legal recruiter about it and this was her response:

To the extent that omissions are tantamount to misrepresentations, I would counsel against it. Further, if omitting the projects would cause a huge and glaring gap in the resume, that’s equally problematic.' But she also says that, 'if the the project is relatively short (less than a month or so), then it’s a coin toss.'

You can read the rest here.

Hat tip to the online ABA Journal blog.

(jbl).

Women and minorities are underrepresented among law firm associate ranks in wake of job market meltdown

From the National Jurist Magazine:

Lawyer layoffs throughout the 2008-2009 season have had a significant impact on the number of women and minorities in the field, according to the National Association for Law Placement's latest report. For the first time since 1993, when NALP first began compiling information, the number of women and minorities in partner and associate ranks has dropped.

Minorities now make up 12.4 percent of lawyers, while women account for 32.7 percent. While these numbers have dropped minimally percentage-wise, they indicate a significant shift in the work environment.

'While the actual drop in the representation of women and minorities is quite small, the significance of the drop is of enormous importance because it represents the reversal of what had been, up until now, a constant upward trend,' NALP Executive Director James Leipold said. 'Prior to the recession law firms had struggled to recruit and retain a diverse workforce of attorneys, but there were small gains year after year. The reversal of that trend underscores how important it is for law firms to redouble their diversity efforts.'

You can read the rest here.

(jbl).

Taking Notes During Your CLE - Online!

My own State Bar of Texas CLE department is offering a new feature for lawyers who prefer to take their CLE online:  note-taking.  CLE programs have long been offered online, but now users can actually annotate the presentation with their own notes.   If you ever need to go back to your notes, they will be archived for you - you can even go back to the point in the video where you made those notes.

I really like this enhancement, but there's only one problem - I would want to keep my notes on my own computer, or in my own stored area.  I guess that's what programs like Evernote are for - still, it's nice seeing a bar association provide some extra functionality to its members.

(TM)

Why Some People Perform and Some Don't When They're in the Clutch

At this time of the year, many of our students are under severe pressure to perform. They have to draft a document, perform a service for a clinic client, or get ready for an exam.

At the Harvard Business Review online, Paul Sullivan offers his results from a study of the military, business executives, and  athletes on who performs in the clutch and who does not:

"In a previous post, I discussed the five traits of people who excel under pressure: focus, discipline, adaptability, being present and a combination of fear and desire. But just as important is the ability to understand and eschew the qualities that cause people to choke in the same circumstances. My research into military leaders, business executives, and athletes indicates that there are three common problems: a failure to accept responsibility, overconfidence and overthinking."

I think this diagnosis applies to law students. Perhaps if we gently guide our hassled students to understand what holds them back from a successful performance, we may help them when they find themselves in future clutches.

(ljs)

And speaking of the importance of office politics (see below), here's a primer on obsequiousness

A couple of Northwestern Business profs have released a study that analyzes the factors that have helped executives get coveted seats on boards.   Their conclusion?  "[I]ngratiating behavior was the strongest single predictive factor for obtaining board appointments."

Now you may be asking:  "Ok, but what's the best way, exactly, to suck-up without being too obvious about it?"  The Northwestern profs have you covered there too because they've compiled a list of the most successful ingratiating behaviors which the Careerist blog has thoughtfully published:

1. Pretend you're seeking advice. Example: “How were you able to close that deal so successfully?”  Mentoring is very in--so let that incoherent partner think that he can actually teach you something.

2. Argue a bit with the kissee about his opinion or approach. Do not agree immediately. But, needless to say, ultimately agree. Remember, lawyers love a good argument--especially if they think they've won.

3. Tell the kissee's friends or family how much you adore/admire her. Just pray that word ultimately gets back to the kissee--otherwise, you've wasted a lot of time.

4. Flatter the kissee by pretending that you're actually a reluctant flatterer. Example: “I don’t want to embarrass you, but your presentation was really top-notch. Better than most I’ve seen.”

5. Agree with the kissee’s values before agreeing with her opinions. The goal is to convey how you both share the same big picture--that vision thing.

6. Tell people in the kissee’s social network that you really share those values. Again, you are counting on word getting back to the kissee that you are kindred spirits.

7. Finally, hint that you are part of the same circle, such as a religious organization or political party.

You can read the rest here at the Careerist.

Hat tip to the online ABA Journal Blog.

(jbl).

In trying to identify why some law firm associates succeed and others don't, one must consider the role of luck and office politics

That's the message from one law partner to Indiana Professor William Henderson who has launched a consulting company to advise law firms on how to hire job candidates who stand the best chance of "success."  We've blogged before about Professor Henderson's work and his theory that law firms will move away from the traditional factors that usually determine whether a candidate gets hired, like her academic rank and the USNWR rank of her school, towards other criteria that he hopes to identity through his interviews with law firm partners about what traits and values they think lead to success.  Now a former Kirkland and Ellis partner is expressing some skepticism about Professor Henderson's ability to develop a "recipe for success" because no statistical analysis can take into account the critical roles of luck and hitching yourself to the right star.

Henderson's researchers . . . 'pour over the resumes and evaluations of associates and partners trying to identify characteristics shared by those who have become 'franchise players' and those who haven't.' Here's what those resumes and evaluations won't reveal: the internal politics driving decisions.

'Most equity partners are talented, but equally deserving candidates fail to advance for reasons unrelated to their abilities,' Harper writes. 'Rather, as the business model incentivizes senior partners to hoard billings that justify personal economic positions, those at the top wield power that makes or breaks young careers—and everybody knows it. Doing a superior job is important, but working for the ‘right’ people is outcome determinative.'

Luck is also a factor, he writes. 'The most important things that happened to me—in work and in life—were fortuitous,' Harper says. 'No statistical model could have predicted them.'

You can read more about Mr. Harper opining on the reasons some lawyers succeed while others don't here courtesy of the AmLaw Daily.

Hat tip to the online ABA Journal Blog.

(jbl).

The Institute for Law Teaching Publishes its Fall Newsletter

The Institute for Law Teaching has e-published its Fall 2010 newsletter, “The Law Teacher.” As with past issues, this one is full of great ideas for improving law school teaching.

(ljs)

How much "inner geek" does a lawyer need?

How much does a lawyer need to know about computer technology? An article today in Law.com's Legal Technology News about hash values as digital fingerprints suggests that while lawyers don't need to know as much as a computer-science wizard at MIT or Carnegie Mellon, they need to keep on top of technology issues that can significantly affect the practice of law -- in this instance, the impact of developments in creating "digital fingerprints" on the authentication of electronically stored information (ESI).

(cgw)

Remembering John F. Kennedy

Today, November 22, marks the anniversary of the assassination of President Kennedy, a heartbreaking and significant date for many of us. On this blog, we might remember his way with words, aided by his speech writer, Ted Sorenson. Here is my favorite quote, delivered at a White House dinner for Nobel laureates. He told the assemblage that the guests comprised “probably the greatest concentration of talent and genius in this house except for perhaps those times when Thomas Jefferson ate alone. Here are more quotations from the Quotations Page.

(ljs)

Why Do Academics, Legal Academics, and Lawyers Copy the Brits?

In her Chronicle of Higher Education column, Rachel Toor observes::

"But in academic writing, the charm of such quirky tics and accents often falls away. We tend to no longer sound like ourselves, and often move into stiff mimicking of works we read as graduate students. "It can thereby be shown" is a phrase commonly found in academic writing, yet hideous on so many levels it's not even worth discussing. Among others: "thus we can see," "ergo," "viz.," "in conversation with," "inasmuchas," "heretofore," "shan't." Look at your own work. How many similarly ugly words and phrases are you using?"

These ugly words may sound familiar to lawyers.

In coming up with an answer, she quotes sociologist C. Writght Mills, whose conclusions about academics may also apply to lawyers:

"Such a lack of ready intelligibility, I believe, usually has little or nothing to do with the complexity of the subject matter, and nothing at all with profundity of thought. It has to do almost entirely with certain confusions of the academic writer about his own status. ... Desire for status is one reason why academic men slip so readily into unintelligibility. ... To overcome the academic prose, you have first to overcome the academic pose."

(ljs)