Legal Skills Prof Blog

A small sign the legal job market may get better in 2011

As reported by AmLaw Daily, the legal consulting firm Hildebrandt released data on Friday showing that the demand for legal services, particularly transactional work, rose slightly in the fourth quarter.  During the past year the demand for bankruptcy services receded just a bit which also tends to support the view that the economy is getting better and we'll see improved growth and hiring by law firms in 2011.  From AmLaw Daily:

On Friday, Hildebrandt issued its latest Peer Monitor Index Report and the picture it paints is a bit rosier.  Examining data from last year's fourth quarter, the report reveals that demand actually rose for the first time since the recession began. Though the increase was small--just 1 percent compared to the same period last year--it was nonetheless an encouraging sign.

'It's a little too early to declare any major tonality shift, though I think the fourth quarter was a much more optimistic casting type of a quarter,' says Mark Medice, Hildebrandt's program director for Peer Monitor.

Though demand remains much lower than it was in prerecession times, Medice says that one reason for optimism is that core practice areas, specifically litigation, saw a bump in demand during the fourth quarter after being stagnant for most of the year.

You can read the full Hildebrandt report here and AmLaw Daily's coverage here.

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Get ready for educational lessons via your cell phone

I don't see this being used in law school or for CLE's where lessons and feedback are presumably more detailed and nuanced but who knows?  From the Chronicle of Higher Ed:

McGraw-Hill is building a mobile-phone platform to teach English and college test preparation to people in India, which the publisher hopes will help it tap into rapidly expanding cellphone use in emerging markets.

The platform, mConnect, comes as textbook publishers are jockeying to supply learning materials on digital devices. If the software is successful in India, McGraw-Hill plans to offer it in other developing countries in Asia and Africa.

The service will initially teach subscribers through text messaging and automated voice response, said Bruce D. Marcus, McGraw-Hill’s executive vice president. For instance, automated software will give Indians feedback on their English-speaking abilities, and a text-message service will offer test-preparation questions and grade the responses.

You can read the rest here.

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More legal skills scholarship: "Managing a law practice: what you need to learn in law school"

This article is authored by Pace Professor Gary A. Munneke and can be found at 30 Pace L. Rev. 1207 (2010).  From the introduction:

In 2007, the Carnegie Foundation released a report, "Educating Lawyers: Preparation for the Profession of Law," which confirmed the basic tenets of the MacCrate Report about the importance of teaching professional skills in law school, but incorporated insights gained through public debate about the goals and objectives of legal education since 1991, including revisions to the Standards for Approval of Law Schools dealing with professional skills, the enunciation of best practices in legal education in a report from the Clinical Legal Education Association (CLEA), and changes in the educational world general in the application of technology as a teaching and learning tool.

This article will focus on the value of teaching law students the specific skills of organization and management, as they relate to the larger set of fundamental lawyering skills described in the Carnegie and MacCrate Reports, as well as other studies. First, this article will review the development of skills education in law schools, including the teaching of practice management skills. Second, the article will discuss the emerging law of law practice management. Finally, this article will describe the pedagogy of teaching both skill and doctrine involving law practice management as an integral part of the process of legal education, utilizing live classroom, on-line and distance learning models.

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Legal skills scholarship: "Objections overruled: the trial advocacy course should be mandatory"

This article, by United States Magistrate Malachy E. Mannion, can be found at 30 Pace L. Rev. 1195 (2010).  From the introduction:

The thesis of this article is that every lawyer should be required to complete a trial advocacy course, prior to graduation from law school, so that he or she is capable of understanding and performing the basic advocacy skills that allow for the achievement of justice in the ultimate dispute resolution setting, the courtroom. This recommendation that the trial advocacy course be mandatory is not meant to disparage those who are already trial lawyers, but to ensure that all future lawyers, prior to graduation from law school, possess basic trial advocacy skills. In addition, as the number of trials has decreased in recent years, it is essential that law students learn basic advocacy skills, so that we ensure the quality of our system of justice, anchored in the trial advocacy system, will remain intact.

The first part of this article will describe how the formal teaching of trial advocacy began, the predominant methodology that is used to teach advocacy skills, how teaching advocacy skills in law school came about, and the current emphasis, or lack thereof, that law school curricula place on the trial advocacy course. The second part of this article will discuss why the completion of a trial advocacy course should be a mandatory requirement prior to graduation from law school.

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Judge Judy and Taxes

Over on Mauled Again (Jan. 31), Jim Maule once again tuned into Judge Judy. This time, he does not discern any misinformation on her part, but does recount an interesting case of what appears to be tax fraud. Here con artists and their victim all conspire to defraud the IRS, but the victim still ends up being a victim, at least until the IRS finds out (assuming an intrigued agent watches the show and investigates). Jim speculates:

  I wonder what sort of impact on the viewers this episode has made. Has it taught people that it doesn’t pay to commit tax fraud, that the improper filing might be identified even if it is not the IRS that discovers it, that con artists specializing in tax fraud are popping up all over the place, and that one should check out the credentials and experience of a prospective tax return preparer? Or is it putting ideas into the heads of people who figure that with a little more care they can avoid being detected?

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Law Firm Employees Allegedly Forced to Waive Meal Breaks; Firm Settles With Them for $ 429,000.

Workers at the Dechert firm were allegedly forced or permitted to waive their meal breaks so that they could continue working. California law entitles hourly workers to a 30 minute meal break every 6 hours or two breaks in every 12 hours. To end a class action, the firm has settled the case for $429,000. The class had sought to recover premium wages for every meal period missed since November 22, 2002. The  lesson is: Treat your employees well. Here is a link to the story in Am Law Daily. The story, in turn, includes a link to the class action complaint.

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Stanley Fish's Favorite Sentences

On Slate’s culture blog, Stanley Fish offers five of his favorite sentences. Of these, here’s my favorite:

  Gertrude Stein (from Lectures in America, 1935): "When I first began writing I felt that writing should go on I still do feel that it should go on but when I first began writing I was completely possessed by the necessity that writing should go on and if writing should go on what had commas and semi-colons to do with it what had commas to do with it what had periods to do with it what had small letters and capitals to do with writing going on which was at the time the most profound need I had in connection with writing." 

The blog  entry celebrates Professor Fish’s new book, “How to Write a Sentence,” which  is enjoying a grand reception.

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How IT can save us from Susskind's prophecy

Apropos to our blog post below is this article from the Law News Technology blog called "How to Prevent the End of Lawyers" in which a remedy to Richard Susskind's dire prediction (for lawyers that is, not clients) is offered:

Susskind argues that while most lawyers view themselves as offering customized services (termed "bespoke" in the UK), and while many law firms have begun to "standardize" and "systematize" their internal processes, clients are pressing for "packaged" and even "commoditized" services. What he describes, in fact, is a trend typical of many industries. The true epiphany here may be that the legal industry is not immune to such forces and that significant restructuring in the way legal services are delivered may be required.

. . . .

The question is, given the encroachment of market forces on the legal industry, and the need for constant innovation: what roles can information technology and IT professionals play in helping firms deliver the legal services clients need and demand profitably, now and in the future? I believe there are three core benefits information technology offers law firms in this regard:

• It can accelerate both the delivery and rate of innovation of legal services

• It can extend the reach of a firm's legal services to more clients

• It can combine and focus the expertise of the firm to produce a whole that is greater than the sum of its parts.

If you want to read more about how IT can save the legal profession from the further commoditization of services, click here.

A hat tip to Jim Calloway's Law Practice Tips blog - a must read if you aren't already subscribed.

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Is Richard Susskind's prophecy about the "end of lawyers" coming true?

I just started reading Richard Susskind's book "The End of Lawyers:  Rethinking the Nature of Legal Services" in which he argues that because much of today's legal work involves routine tasks, in the future we'll see a lot of it outsourced to lawyer-drones (and possibly non-lawyers too) who can handle it more cheaply and efficiently than today's big firm model.  Susskind predicts that the future of legal practice will find a cadre of highly paid lawyers at the top of the pyramid (or at the center of the donut to use his metaphor) offering "bespoke services" in complex matters while the remaining work is farmed out to cheap labor.  

It so happens that Above the Law reported on Friday that WilmerHale is creating a "discovery-track" attorney position that involves recruiting attorneys to do the kind of routine legal work Susskind describes.  The WilmerHale hires will be doing the same type of work that contract lawyers have been doing for the last several years except that these jobs represent a career option, complete with benefits, rather than a temporary weigh station until something better comes along.  Elie Mystal suggests this could be the beginning of a bifurcated legal job market:

[T]here’s nothing inherently wrong with hiring law school graduates to do grunt work. Hell, for years that’s what Biglaw did — only they’d pay these young associates a huge amount of money, and charge clients an arm and a leg for work that can really be done by an intelligent and conscientious high school student. It makes a lot of sense to find a way to do this work more cheaply. And clients are demanding that this work be done more cheaply.

The main reason that all this is bad news for law students and recent graduates is that law schools are light years away from admitting this reality to themselves and charging appropriately. If we’re going to have two different “tracks” for attorneys, then shouldn’t we have two different tracks for legal education? Why require three years and charge six figures to train people for jobs that they have nearly no hope of getting?

You can read more about WilmerHale's new program here and Elie Mystal's thoughts about it here.

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A clinical fellowship opportunity for attorneys

The Jacob Burns Community Legal Clinics of The George Washington University Law School has an opening for a clinical fellowship.  The two-year fellowship, which will commence in the summer of 2011, is connected to GW’s Public Justice Advocacy Clinic, which focuses on employment law and administrative advocacy, including wage and hour cases and unemployment appeals.  

 

The fellowship program is known as the Friedman Fellowship Program in honor of the generous gift of Philip Friedman, Esq.  Friedman Fellows are provided the opportunity to learn about clinical education and public interest lawyering through teaching and supervising law students, working closely with clinical faculty, and participating in a related program of study.  Each Fellow enrolls in two year-long courses in Clinical Teaching and Scholarship taught by the Associate Dean for Clinical Affairs and other clinical faculty.  As part of this course sequence, Fellows receive specific instruction and guidance in teaching, supervising, and writing a publishable thesis.  Fellows also enroll part-time in other classes, and receive an LL.M. degree upon completion of the class and thesis requirements of the LL.M. program. Friedman Fellows receive considerable mentorship and support from the clinical faculty and administration and are awarded an annual stipend between $45,000 and $50,000, tuition remission for the LL.M. program, health insurance and other benefits, and possible student loan deferment.    

 

The school is currently seeking applications from attorneys with strong academic, clinical, and lawyering experience, especially in the fields of civil litigation, employment law, administrative law, and poverty law. Spanish language ability is highly desirable. Fellows must be members of a state bar.   

 

Applicants should send a letter of interest, a resume, a list of references, a writing sample, and a complete law school transcript by February 17, 2011.  These materials should be sent to Associate Dean Phyllis Goldfarb by email to [email protected] or by mail to Jacob Burns Community Legal Clinics, The George Washington University Law School, 2000 G St. NW, Washington, DC 20052.  The George Washington University Law School is an Affirmative Action/Equal Opportunity employer. The University undertakes special efforts to employ a diverse workforce.

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What Is the Best Peparation for Law School?

I think that the best preparation is a course of study that requires a lot of writing and teaches critical thinking and close analysis. The course of study should also broaden the student’s knowledge as well as the student’s appreciation of differing points of view.

 From this perspective, many college majors fit the bill. Lately, the liberal arts has been criticized as impractical and unrelated to the working world. This criticism is unfortunate and unfounded. In his book review of “Why Choose the Liberal Arts?, by Mark William Roche, Gregory Jusdanis  quotes from the book explaining the value of the liberal arts:

 1. They have intrinsic value in their own right. We learn something about history or philosophy. We can acquire foreign languages and read literary works in translation or in the original. We gain, in other words, a more engaged and meaningful understanding of the world.  

 2. The liberal arts cultivate those skills, such as critical thinking and writing, which are important for success after graduation. Students thus gain competence in thinking systematically and analytically, enhancing their facility to communicate with other people.   

 3. The third purpose represents a synthesis of the two. By engaging students with other cultures and other traditions, the liberal arts help instill in them a higher purpose and a sense of connection with the world around them. Becoming aware of their links to other people, societies, and institutions, students also recognize their responsibilities to this world.

 I agree. You can read the entire review here, from the Teachers College Record online.

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Legal research instruction in law school is out of touch with practitioners when it comes to Wexis alternatives

That's the thrust of this post from the Law Librarian Blog describing the experience of Laura K. Justiss (!) as she transitioned from law firm librarian to law library academic:

I was naively surprised to learn that most law students had little, if any, awareness of the electronic services other than Lexis and Westlaw routinely used by practicing attorneys. Of the alternative research databases I had used in my former life as a law firm librarian, only PACER was available in the law school in 2000. There were no court docket services for state courts, such as CourtLink or CourtExpresss; no financial or business research databases, such as Live EDGAR or Dun & Bradsteet; no public record databases (other than those available on Lexis or Westlaw); and no intellectual property, engineering or technology research databases such as Dialog. Thus students seldom had the opportunity to learn the existence of such alternatives, let alone why or how a lawyer might use them in practice.

Ouch.  But there's a resource available to those trying to help students become more practice-ready with respect to legal research skills. Ms. Justiss has published a survey that identifies the alternatives to Wexis used by law firms and ranks them by subscription frequency.  Read the full survey results here.

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What's the best tablet computer for your law practice?

Tablet computers are big this year.  Businesses are expected to push sales to 10 million units while overall sales are expected to hit 50 million.  This column from the blog Law Technology News reviews 10 different models, including the iPad, to help you pick out the right device for your practice needs

Hat tip to Law.com.

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Are 'scambloggers' Right About Law School?

Here are the results of an unscientific poll on www.abajournal.com (results as of Jan. 28, noon EST)

Results

• I didn't go to law school and don't plan on it.
  49 votes (4.29%)
• No. Law school worked out well for me.
  294 votes (25.72%)
• Yes. I'm concerned about my future.
  800 votes (69.99%)

Total Votes: 1143

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In Montgomery County, PA, Jurors Can Donate Their Pay to Charities.

In Montgomery County, Pennsylvania, jurors can contribute their jury pay to local charities. Jurors receive $9 per day for up to three days of service and $25 per day for four days and beyond if they are selected for a trial. They also receive 17 cents per mile in travel expenses based upon their zip codes. Jurors who volunteer their checks direct them to one of three local charities. So far, between 10% and 20% of jurors are participating.

 Since 2003, neighboring Delaware County has operated a similar program and collected $450,000 for charities. Bar associations in jurisdictions without this program may want to consider proposing it. Here is an article on the program from the Montgomery News.

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The problem with most bad writers is that they write for themselves, not the audience

So says Professor John Trimble, author of the popular text Writing With Style: Conversations on the Art of Writing, just released in its third edition.  Professor Trimble had this to say in an interview with the Chronicle of Higher Ed:

The novice writer, [Trimble] argues, has a 'natural tendency ... to think primarily of himself—hence to write primarily for himself.' His description of how that tendency plays out in the head of the novice writer deserves to be reproduced in full:

'He thinks through an idea only until it is passably clear to him, since, for his purposes, it needn't be any clearer; he dispenses with transitions because it's enough that he knows how his ideas connect; he uses a private system—or no system—of punctuation; he doesn't trouble to define his terms because he understands perfectly well what he means by them; he writes page after page without bothering to vary his sentence structure; he leaves off page numbers and footnotes; he paragraphs only when the mood strikes him; he ends abruptly when he decides he's had enough; he neglects to proofread the final job because the writing is over.'

More advice for keeping good writing on track - write in an authentic voice:

'Each time we write,' he says in the book, 'we're making a choice as to the kind of person we prefer to be. Since it's so important, let's make that choice a conscious one for a change. Here's what it involves: 'Do I want to be authentically me, speaking my own thoughts in my own idiom, or am I content to be a pseudo-self, using borrowed thoughts, borrowed language, and a borrowed personality to gain the approval of a few literary traditionalists?'

In the spirit of arguing for this more authentic prose style, he devotes an entire chapter, 'Superstitions,' to debunking a set of popular dogmas about what we should and should not do in academic writing. One of his seven targets in the chapter is the idea that we should never refer to our readers as 'you' and should instead use the more formal address 'the reader.'

'What reader,' he asks, 'wants to be addressed as 'the reader'? It's akin to saying, in conversation, 'I'm glad to hear the listener has recovered from her cold."

On the 'rule' against contractions, he contrasts two sentences: 'Why should we not have clean air?' and 'Why shouldn't we have clean air?'

'Honestly,' he says, 'which of those two writers would you rather hang out with?'

Professor Trimble - superstar writing teacher.  Icon.  Read more of his interview with the CHE here.

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Do all those "client alerts" that law firms send out actually get read?

Some corporate in-house counsel say they are overwhelmed with "client alerts" sent by firms every time a new case is decided and thus never read them.  Here are some tips from the National Law Journal to make sure your client alerts get read and circulated:

• Client alerts should be very brief (think blog posts).

• Client alerts that are industry-specific are rare, but will stand out and better position the lawyer not just in his practice area but as understanding the business realities faced by GCs.

• Include a personal message with the client alert and it will have a much better chance of getting read.

I guess the bottom line is, don't write anything that you wouldn't enjoy reading. Seems obvious, right?

As for stylistic advice, keep the writing simple - even though the clients are sophisticated:

One final point about writing client alerts. "We work with our lawyers to create alerts that are easy to read," said Foley. "We put on a seminar for them where we start out by saying, remember everything they taught you about writing in law school? Now forget that — we need you writing alerts on a 6th grade reading level, not an 18th grade level." This rule may not apply to all audiences, but it's important to limit the legalese in your writing.

You can read the rest here.

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Itemized Billing v. Block Billing

In billing a client, should a lawyer provide the total daily time spent working on a case (block billing) or itemize the time spent on each specific task (itemized billing)? In an article in the Washington State Bar News (Jan 2011), attorney Michael Caryl gives this example:

Block billing

10/10/2010: Phone conf. with expert Jones; review documents for cross prep; msgs to and from client re files etc.; prepare cross and exhibits for defendant; msgs to and from court.

Total: 4.0 hours

Itemized billing

10/10/2010: Phone conf. with expert Jones (.4) review documents for four hours cross prep (.8); msgs to and from client re files etc. (.3); prepare cross and exhibits for defendant (2.4); msgs to and from court (.1)

Total: 4.0 hours

Although many attorneys find block billing more convenient, Mr. Caryl argues that courts, academics, and consumers disapprove of it. When lawyers employ block billing, courts sometimes reduce fee awards. He predicts that in his state, the Washington Supreme Court will address the practice in the Rules of Professional Conduct.

(ljs)

Judge Judy Flunks Tax

Over on the Mauled Again blog (Jan. 21), Jim Maule reviews a TV  episode where Judge Judy seems  to assume that  (1) the  transferor spouse in a marital property settlement gets a tax deduction and (2) the recipient must include the property in gross income. Wrong on both counts. This is basic tax law. Who knows how many members of the TV  audience are going to take her word for the state of the tax law? Who knows how many audience members are going to mess up their filings? Who will they believe--the Judge or TurboTax? Jim has promised to expose another Judge Judy tax goof soon. Stay tuned.

(ljs)

The "Top 10" law school websites.

From the National Law Journal:

A recent empirical study and ranking of the home pages for all 200 American Bar Association-accredited law schools found that 65 included photos of students in or around trees, a phenomenon the authors dubbed 'Girls Under Trees.'

According to the study, titled 'Top 10 Law School Home Pages of 2010,' photos of students under trees and pictures of Supreme Court justices, moot court competitions and students sitting class aren't necessarily useful or informative.

'While thought to give potential students a taste of law school life, these photos usually do not add any content, context, nor important information for visitors to a site,' reads the study, authored by Georgetown University Law Center Associate Law Librarian Roger Skalbeck and Yale Law School Librarian for Emerging Technologies Jason Eiseman.

And here's the list along with the "Bottom 10" websites courtesy of the TaxProf Blog:

1	Illinois
2	Wayne State
3	Chicago
	Michigan State
	Nebraska
6	Florida Coastal
	George Washington
	Maine
	USC
10	New Mexico
	Pepperdine
	Roger Williams
	Tennessee
	Washington & Lee
190	District of Columbia
	Charleston
192	Missouri-Kansas City
193	Suffolk
	UNLV
195	Montana
196	Dickinson
	Puerto Rico
	Southern
199	California-Western
	Catholic U. Puerto Rico

Click here to see the best and worst websites from 2009.

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