Friday, December 31, 2010
While much of the world is celebrating the year’s end, a number of law professors are engaged in the painful task of grading exams and papers. Along with many law profs, I have often said that I teach for free and get paid for grading.
For Legal Writing profs thinking and rethinking about how to evaluate student performance, I recommend Volume One of the Legal Writing Institute’s Monograph Series, “The Art of Critiquing Written Work.” It is a collection of helpful, carefully selected articles.
A Happy New Year’s Eve to all!
From the New York Times (Dec. 29), its most emailed article today. In short, here are the 10 ways. The article offers explanations.
Get a smartphone
Stop using Internet Explorer
Upload your photos to the cloud
Get music off your computer
Back up your data
Set up a free file-sharing service
Get free antivirus software
Get a better deal from your cable, phone, and internet provider
Buy a lot of charging cables
Calibrate your HDTV
Thursday, December 30, 2010
If you need more evidence that private law practice is fundamentally changing, how about this: One BigLaw firm is planning to implement on January 1 new time keeping software that will automatically dock associates' pay if they are more than 5 days late submitting their time sheets. The total penalty can reach 20% of gross pay for third time offenders. There have been previous reports about law firms going "medieval" on associates who don't promptly submit their time sheets (here and here) but this is the first I've heard about a firm implementing automatic pay deductions.
According to Above the Law, the firm's associates aren't happy about it (no kidding) but what can they really do? I'm blogging about this story in part because it offers a good, teachable moment for students who may not fully appreciate the critical importance of meeting deadlines once in practice. I'm also curious whether any professors use software that automatically deducts points for electronically submitted assignments that are late.
You can read the rest of this story here, courtesy of Above the Law.
In the new legal economy, flexible fee arrangements, excellent service, personal chemistry and partnering with "virtual law firms" are key according to this story from the New York Times.
The recession has brought changes to the business of law, including lower fees and less costly billing arrangements, say industry reports and managing partners in firms large and small. And that can mean advantages for small-business owners, provided they know how to find a law firm that suits their needs and they know the right questions to ask.
Among the ideas floated by law firms and clients alike include:
- Hourly billing makes it easier for clients to contain costs versus paying a retainer (the article doesn't point out that flat fee arrangements make it even easier).
- Small business owners should seek referrals from their business peers.
- Use Primerus, which is owned by Martindale Hubbell, to help find small (and presumably cheaper), highly rated law firms.
- Get an upfront estimate of the cost of legal work and then stick to it.
- Independent practitioners should consider forming "virtual law firms" that will allow them to offer their existing clients a wider range of services by forming networks with other, independent specialists (subject, of course, to professional ethics constraints).
- Law schools can help by offering students more training in the issues faced by small businesses.
You can read the rest of the article, entitled "In the New Economy, Use New Strategies to Hire Law Firms," here.
Lawyers' websites have replaced business cards and Yellow Pages ads as marketing tools. But they also create some serious ethical and professional risks for the lawyers who use them if the sites aren't worded carefully. As this post from the online ABA Journal Blog explains, the ABA Standing Committee on Ethics and Professional Responsibility issued a recent opinion [Formal Opinion 10-457 dated Aug. 5, 2010] providing some guidance to lawyers on how to avoid inadvertently creating attorney-client relationships through website solicitations.
The opinion recognizes the growing use of websites by lawyers. 'A lawyer website can provide to anyone with Internet access a wide array of information about the law, legal institutions and the value of legal services,' states the opinion. Websites also serve as an effective marketing tool for lawyers, the opinion notes.
But the opinion cautions that 'the obvious benefit of this information can diminish or disappear if the website visitor misunderstands or is misled by website information and features.' For lawyers, online marketing can give rise to problems when website visitors interpret material posted as general information to apply to specific situations, or when visitors make unanticipated inquiries or unexpectedly provide confidential information. Websites that invite inquiries, such those with 'contact us' or 'click here for a free consultation' buttons, can be especially problematic.
How can lawyers avoid these problems? With good disclaimers.
Lawyers are 'well-advised to consider that a website-generated inquiry may have come from a prospective client,' states the opinion, and they should pay special attention to including appropriate warnings that effectively limit, condition or disclaim any obligations to website visitors. 'Such warnings or statements may be written so as to avoid a misunderstanding by the website visitor that (1) a client-lawyer relationship has been created, (2) the visitor’s information will be kept confidential, (3) legal advice has been given, or (4) the lawyer will be prevented from representing an adverse party.'
The key, concludes the ethics committee’s opinion, is that 'limitations, conditions or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a reasonable person.' And, the opinion notes, 'The appropriate information should be conspicuously placed to assure that the reader is likely to see it before proceeding.'
You can read more about the risks associated with lawyer websites, and the ways to avoid them, here courtesy of the online ABA Journal Blog.
Suppose that you or your clinic decide not to represent a client. Are there actions you should then take? On the Utah Bar Journal blog last September, Keith Call offers three pieces of advice:
1. Keep confidences if you decide to represent an adverse party. See Rule 1.18 of the Rules of Professional Conduct, which identifies a potential client as a “prospective client").
2. Send a declination letter (new word for me) to protect yourself from any confusion.
3. Keep track of prospective clients in your conflict base.
Okay, so Google Docs still can't match the power of any part of the Microsoft Office suite, but they sure keep getting closer and closer. Recently, they debuted a great new chart creation tool that makes some significant advances. You'll find annotated timelines, organizational charts, gauges, a motion chart, and many more chart types. It still doesn't have Excel's incredible functionality, but in many cases a Google Docs spreadsheet will fit the bill.
Wednesday, December 29, 2010
The Arizona Supreme Court found that attorneys within the firm missed deadlines, court dates and failed to communicate with clients among other transgressions. The court found the firm's managing partner failed to properly supervise the lawyers in question and, as a result, suspended him from practice for six months. You can read the court's order here.
The firm employed 250 people including 38 attorneys. The practice areas were criminal defense, bankruptcy and personal injury matters. The disciplined attorney did not represent clients but rather was responsible for firm management. One of the issues was severe case overload. Attorneys in the bankruptcy division carried 500 cases. One testified that her assigned caseload was 540 when she started with the firm. The attorney had a record of prior discipline for similar misconduct.
The court held that the Hearing Officer applied the appropriate standard and did not impose vicarious liability for the acts of subordinate attorneys. The attorney is precluded from sharing in profits or holding himself out as an attorney during the period of suspension.
"Best of" lists are as common a sight this time of year as shrimp cocktails at a law firm Christmas party. We therefore present for your consideration yet another "best of" list - this time from the online ABA Journal blog representing the ten most popular stories based on reader visits (there are several law school and practice related stories among them):
1. Midyear Meeting 2010
Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find
2. Work/Life Balance
Why Lawyers Should Work No More than 40 Hours a Week
3. Family Law
Law Student Charged with Contempt for Exposing Daughter to Christianity
4. Law Schools
Profs Predict Law School Closings as More Grads Earn Less than Break-Even Pay
5. Legal Ethics
Lawyer Disbarred for $3,500-an-Hour Fee and ‘Bizarre Behavior’
6. Legal Ethics
Ohio Lawyer Suspended for Billing More than 24 Hours in a Day
7. Law Firms
Malpractice Plaintiff Wins $103M Verdict Against Baker & McKenzie
8. Law Firms
Law Firms Swindled Out of $500K in E-Mail Scam
9. Family Law
Opposing Counsel’s Warning Comes Too Late; Lawyer, 54, Is Stabbed 12 Times in Her Office
As 1L Ponders Cost-Benefit Ratio of Dropping Out Now, ATL Survey Says: Do It
Dennis Kennedy is a leading authority on law practice technology and a renowned blogger who began his best-of-the-blogosphere "Blawggie Awards" in 2004 in order to recognize outstanding contributions in the legal realm. You can read his list of the 2010 Blawggie winners here. In the best law prof blog category there was a tie between our sister blog, Paul Caron's TaxProf Blog and Mauled Again which is written by Villanova Professor James Maule who is a frequent reader and commenter on this blog. Another of our sister blogs, the Law Librarian Blog, also gets an honorable mention.
The 2010 award for the best "practice" oriented blog goes to drafting guru Ken Adams at The Koncise Drafter.
I found this online. It comes from William J. Rapaport, a professor of computer and cognitive science at SUNY-Buffalo. Among his suggestions are that students take notes during class without a laptop and then copy them over at home (I did that in law school too), read texts slowly and "actively" and make notes in the margin, set grade goals for yourself and if you don't meet them, cut back on non-school activities.
Click here to read the rest of Professor Rapaport's suggestions which he intersperses with some funny cartoons to illustrate each point.
Research in cognitive psychology continues to say no. In an article in the Harvard Business Review online, Psychology Professor Paul Atchley notes that social network messages like email and Twitter constantly tempt us away from our primary work. Yet, we crave new information; we search for information that confirms what we already believe. He suggests:
1. Make an effort to do tasks one at a time.
2. Know when to close your door.
3. Admit that not all information is useful.
The comments following the article are worth reading.
Tuesday, December 28, 2010
For as long as teachers have handed out grades, students have been tempted to cheat. Wireless technology and the ubiquity of personal communication devices have made the problem more widespread, and harder to defeat, than ever according to some educators. This article from the New York Times describes some of the techniques that the anti-cheating consultants and software makers use to combat hi-tech cheaters, including those who sit for the LSAT. For example, there's software that "analyzes answer sheets . . . and flags those with so many of the same questions wrong or right that the chances of random agreement are astronomically small." One company, called Caveon (which the LSAC hires to cruise the internet looking for leaked LSAT answers) uses computers that
hunt for illogical patterns, like test-takers who did better on harder questions than easy ones. That can be a sign of advance knowledge of part of a test.
The computers also look for unusually large score gains from a previous test by a student or class. They also count the number of erasures on answer sheets, which in some cases can be evidence that teachers or administrators tampered with a test.
These new techniques do have critics, however, who say that until these companies publish academic papers describing their methodology, it's impossible to know how accurate the techniques are and the extent of false-positives.
You can read more about the very interesting black op world of anti-cheating detection here.
So says legal job market guru and Indiana School of Law Professor William Henderson in an interview with the Chicago Tribune. The article notes some important outsourcing mergers of late.
Two recent mergers in the legal industry speak volumes about the forces reshaping the business of law at its highest levels. What's also notable is that neither deal involved large law firms.
Thomson Reuters, a media and information-services company, acquired Pangea3, a legal-process outsourcing firm with most of its lawyers in India, in November. A month earlier, Axiom Global Inc., which provides lawyers-for-hire to big corporations, bought another legal staffing company, Chicago-based LawyerLink LLC.
. . . .
LawyerLink, Pangea3 and other alternatives to law firms have been around for several years, but their business models have gained momentum since the recession because they have found ways to cut costs out of basic legal tasks.
. . . .
Jennifer Bertoglio, a lawyer who founded LawyerLink, said her company manages discovery less expensively than law firms. It's not just about paying her lawyers less. LawyerLink uses technology and quality-control processes borrowed from manufacturers to make document review more productive and with fewer errors, she said.
Professor Henderson notes that there is
still the widely held belief among law firm partners and general counsels that outsourcers don't offer the same quality of work as law firms . . . . The perception, right or wrong, has prevented outsourcing from becoming embraced in the legal industry. Only about 1 percent of the money spent on lawyers in the United States goes to outsourcers, according to various estimates.
But Thomson Reuters' acquisition of Pangea3, based in New York and Mumbai, appears to at least validate the business model. Lawyers in India charge $25 to $35 an hour for routine corporate work such as drafting contracts and complying with regulations, said Ganesh Natarajan, president and chief executive of Mindcrest, a Chicago-based rival of Pangea3.
In announcing the deal, Thomson Reuters, which owns West, a legal publisher, said outsourcing will be key to helping law firms and their clients be more 'responsive and cost-effective.'
Henderson agrees: 'This is the beginning of a wave that's only going to get bigger in the years to come.'
Hat tip to Above the Law.
Before the court is a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” Doc. #7. As background, this adversary was commenced on December 14, 2005 with the filing of the plaintiff’s complaint objecting to the debtor’s discharge. (Doc. #1). Defendant answered the complaint on January 12, 2006. Doc. #3. Plaintiff responded to the Defendant’s answer on January 26, 2006. Doc. #6. On February 3, 2006, Defendant filed the above entitled motion. The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible.
Hat tip to Above the Law.
In The New York Times yesterday, Sharon Otterman reported on the dismal record of the system of teacher rankings used by the New York City school system. Over at UCLA Prof. Mark Kleiman's The Reality-Based Community, University of California, Berkeley Prof. Michael O'Hare expands on Otterman's article by offering a broader and more pointed critique of current teacher-ranking efforts.
Legal skills build on those developed earlier in life: learning the alphabet in kindergarten or pre-school lays the foundation for reading and writing, skills obviously essential for succeeding in law school and law practice. And, of course, those skills develop because someone took time to teach them. The Otterman article and O'Hare blog post serve as useful reminders that if we fail to assess accurately -- both objectively and subjectively -- the work of those who teach skills (by, e.g., seeing causation where only correlation exists), we risk in significant ways depriving students of their best opportunity to become not just good students or skilled employees, but well-formed human beings, not to mention turning teachers and students into mere units of measurable production. Without adequate checks on the zeal to convert an array of human capabilities into a number or two, we might emerge in a future not too distant in sensibility from that conceived by Douglas Adams, where a massive computer (Deep Thought) runs a calculation over a period of 7.5 million years and reveals that the single-number "Ultimate answer to Life, the Universe and Everything is . . . 42."
Because of the internet, “deep reading that used to become naturally is a struggle.” So writes Nicholas Carr. Here is a thoughtful review of his book “The Shallows: What the Internet Is Doing to our Brains” (W.W. Norton 2010). The reviewer is Anthony Cocciolo who teaches at the Pratt Institute School of Information and Library Science. The review appears in the Teachers College Record, an online publication of the Teachers College, Columbia University.
Carr relies on social science and neuroscience research to support his argument that the internet chips away at our capacity for concentration and contemplation. How does this argument apply to educators? The reviewer writes:
I would argue that the challenge for educators and librarians is to find the right mix of deep reading and creative and media-based production. To push children in a single direction—deep-readers disconnected from media—would be a drastic disservice and make young people ill-prepared for twenty-first century living, not to mention miss out on the wonders of being an Internet citizen. However, if we allow young people to swing fully in the other direction, they will fail to experience the deep interior world that reading makes possible.
Of course, these concerns haunt legal educators as well. We work in a field where deep reading is essential and thus struggle against the tide. At the same time, we must recognize that these future lawyers are going to prefer quick and often shallow answers in their research. Encouraging students to read deeply and also to read efficiently when suitable is our challenge.
Monday, December 27, 2010
It will be held from February 18 - 19, 2011 at Stetson School of Law in Gulfport, Florida. Here's the skinny:
6th Annual International Conference on Contracts
Feb. 18-19, 2011
Stetson University College of Law
›› Online Registration
Stetson University College of Law and Texas Wesleyan School of Law are co-sponsoring the 6th Annual International Conference on Contracts, February 18 and 19, 2011, at Stetson’s beautiful campus in Gulfport, Fla. Similar to previous contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to offer scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.
›› View the Call for Papers
The conference hotel will be the Tradewinds Resort in nearby St. Pete Beach. A block of rooms is reserved for the conference, with rates starting at $159 (suites and other rooms are available for somewhat higher rate). Please mention that you are with the Stetson University College of Law Contracts Conference when making your reservation. The hotel phone number is 800-360-4016.
Hat tip to the Legal Scholarship Blog.