Legal Skills Prof Blog

Evolution to Digital Law & Free Access Issues

A recent post on Law tech Camp discusses the issue of free access to law in an age where official publications will be digital.  There is also a presentation (@ColinLaChance) posted here.

“This goes beyond permitting “free access to law” and into the realm of positive obligation to help citizens overcome barriers associated with poverty, disability and availability of basic internet access.”

The library is an important component here.  You can read my article Access to Justice Starts in the Library at 62 Maine L. Rev. 473.

 
(dkh)

Employment Law: More Jobs for Lawyers?

Employment lawsuits have risen to their highest peak in history, with almost 100,000 claims files in 2010, according to the EEOC. Incredibly, that number reflects a 31% increase from just 4 years ago! There is a never-ending flow of new court cases and decisions that change the employment landscape, making it extremely difficult for employers to stay ahead of the curve.

So writes Ari Rosenstein at Articlesbase. These statistics suggest that employment law is a place for lawyers to seek employment. In addition, there are many jobs available in labor relations that  do not require a  J.D. However, a J.D. and a few courses in the subject areas can make the new graduate a very attractive candidate.

(ljs)

Sitting too long at your desk can kill you more than think

It's "health day" here at the Legal Skills Prof Blog (see below). Most of us already now that Americans are far too sedentary; we spend most of the day sitting on our butts in front of a computer screen. I don't know about you, but I always figured that regular exercise, after hours at the gym and weekends at home, was a good antidote. Not so says this study (published in 2010 but reported on Friday at CNN.com) from the American Cancer Society; regular exercise cannot make up for the deleterious health effects of too much desk-time. From CNN:

[An] American Cancer Society study finds that women who sit for more than six hours a day were about 40% more likely to die during the course of the study than those who sat fewer than three hours per day. Men were about 20% more likely to die.

That large study focused on the numbers of people who died. Other studies have focused on specific conditions affecting the most Americans, things such as cardiovascular disease, obesity, type 2 diabetes and depression. In those studies, too, extended periods of sitting increased risks of illness.

And earlier this year the evidence against many hours of sitting expanded further: The American Journal of Epidemiology published a study finding that those who work a sedentary job have almost twice the risk of a specific type of colon cancer.

What's particularly interesting about recent research is the revelation that sitting for extended periods of time does significant damage to human health that cannot be undone by exercising. Sitting for several hours each day is bad for you, like smoking is bad for you, regardless of whether you do healthful activities, too.

The American Cancer Society points out that public health guidelines make little or no reference to reducing time spent sitting, instead focusing on increasing the activity level.

For example, in 1995, the American College of Sports Medicine and the Centers for Disease Control and Prevention jointly issued national guidelines called Physical Activity and Public Health, which were updated in 2007. The government's recommendation was specific: "Moderate-intensity aerobic physical activity for a minimum of 30 min(utes) on five days each week or vigorous-intensity aerobic physical activity for a minimum of 20 min(utes) on three days each week."

With what we now know, public health guidelines should address both physical activity and physical inactivity, according to public health researchers.

It's a shift in thinking that is rippling through places of work, schools and homes as the very fundamentals -- chair at desk -- seem to cause harm when used for the lengths of time now considered normal.

Double-yikes.

You can read the rest here courtesy of CNN.com or download the full text study here.

(jbl).

Internet addiction may alter the brain

Nicholas Carr wrote a best selling book called "The Shallows" arguing that the internet is re-wiring our brains making us more distracted. For the record, well respected Harvard cognitive psychologist Steven Pinker, author of the "Blank Slate" among several other popular books on the inner workings of the brain, disputes this. Now comes this Chinese study showing that MRI scans do indeed show alteration in ye 'ol gray matter among adolescents addicted to the internet:

Recent studies suggest that internet addiction disorder (IAD) is associated with structural abnormalities in brain gray matter. However, few studies have investigated the effects of internet addiction on the microstructural integrity of major neuronal fiber pathways, and almost no studies have assessed the microstructural changes with the duration of internet addiction.

. . . .

Our results suggested that long-term internet addiction would result in brain structural alterations, which probably contributed to chronic dysfunction in subjects with IAD. The current study may shed further light on the potential brain effects of IAD.

Yikes.

(jbl).

Cross Examination Advice

James A. Johnson has given some good advice on cross examination in a recent article in the Michigan Lawyers Weekly, titled Coss Examination: Let Me Ask you this . . .

Abstract

Cross Examination: Let me ask you this...demonstrates that cross examination is more than a search for the truth. For the skillful trial lawyer it is an opportunity to persuade the fact finder to your position in the case and set up ammunition for final argument. With this view, cross examination is not for the witness, but it is for you. It is your opportunity to present your side of the witness's story. Out of the mouth of an adverse witness responding that everything you ask is true, consistent with the facts and the cannons of ethics.

(esf)

A low tech alternative to clickers.

Um, hands? From the Chronicle of Higher Ed.:

Clickers are great for implementing the pedagogy, but sometimes the expense or technology can be a hindrance to using them for the student, the instructor, or both. And there is always the chance the technology can fail. Here are several low-tech alternatives you might consider if you want to use classroom response systems, either to help you get started using the pedagogy or to have as a backup plan in case the technology fails.

• Flash cards. Up until last summer, I was pretty well set in my ways for using actual electronic clickers for CRS use. That was, until I heard Ed Prather speak at a conference. Prather is a faculty member in the Department of Astronomy at the University of Arizona. He gives his students, members of very large courses (200+ students!), a page which can be folded to reveal one of four numbers as desired. He uses these to solicit student feedback to clicker-type questions, and because the numbers are colored in differently he can scan quickly for student feedback. Implementing CRS in this way requires some pretty stringent rules. For example, Prather requires his students to display their chosen number right up under their chin, and he’s got a strong enough presence to call students out if they start looking at their neighbor’s response before they should.  I was impressed by the method and think it would be great for implementing CRS in a quick and easy manner.
• Fingers. Similar to flash cards, you could ask students to display one, two, or three fingers to correspond with their answers of A, B, or C to a multiple choice question. Also like using flash cards, you would have to make sure students are not looking at each other for their answers, at least initially, but this could be an even quicker way to get clicker-type questions going in your classroom.
• Mini whiteboards. Sometimes it’s helpful to write questions for this type of pedagogy that don’t lend themselves easily to brief multiple choice answers. Depending upon the topic, you might be interested in how a student draws a diagram, as I am in physics with free-body diagrams, or maybe you want to see how well your students are picking up the ways to draw three-dimensional chemical structures.  The Paradigms in Physics project at Oregon State University advocates giving out to your students mini whiteboards, which they can use (sometimes in groups, sometimes individually) to draw their answers to a posed question. The students can then display their boards as a group to the instructor, who can scan them to get a better understanding of the group’s work and how the rest of the session might be tailored to their progress. One idea for producing these is to get something as basic as a shower board and cut it up into 12″ by 12″ pieces and giving them out in class.

Great pedagogy is timeless and shouldn’t be tied to one particular technology. Its strength is proven when it can be implemented in multiple ways.

(jbl).

Exam Review: Talking to Disappointed Students

At this  time of the year, students who have done poorly in our Spring courses sometimes show up at our door, wanting to  go  over the  exam or paper. Sometimes they are polite, and sometimes they are aggressive. I have always found it best to remain polite.

Here is my most important advice: Empathize with the student. I don't mean agree with the student who thinks  your exam was ambiguous and the grading  was arbitrary. Rather, I mean say to the student, "I'm sorry the exam (or paper assignment) didn't work out well for  you." In this way, you let the student know that the grade is not how  you measure the student's worth  as a person or maybe even as a future lawyer. You show the student respect. I can't promise that this approach will mollify every hostile student, but most  students  will appreciate your empathy.

(ljs)

 

Job opening for environmental law clinician

Here's the posting from U. Chicago:

The Law School at the University of Chicago is seeking qualified applicants for a full-time position leading its newly created Environmental Law Clinic. The position would begin during the 2011-12 academic year and would be on the Law School's clinical professor track. The attorney who fills the position will have primary responsibility for developing the new Environmental Law Clinic; engaging in case selection, litigation, and other advocacy to promote the Environmental Law Clinic's mission and goals; supervising clinic students in all aspects of the Environmental Law Clinic's work; and teaching a related seminar and/or clinical skills courses.

Candidates must have a J.D.; must have at least three years of experience in the environmental law field, and be admitted to or eligible for and able to obtain admission to the Illinois bar. Candidates who teach in a law school legal clinic or who have prior experience supervising or teaching law students or other attorneys are strongly preferred. Experience in litigation and/or policy concerning water pollution preferred. Excellent writing, editing, and supervision skills are required.

Each candidate should submit a curriculum vita or resume, a list of references, a legal writing sample, a detailed description of the candidate's relevant practice experience and teaching experience, and course evaluations from prior teaching experience if any. Other material relevant to your candidacy may be included as well. Candidates must apply on line and upload application material at: https://academiccareers.uchicago.edu/applicants/Central?quickFind=51699. All application material must be received by August 19, 2011.

(jbl).

“Hot Coffee” Spills the Beans on McDonald’s

This week, HBO will begin showing a new documentary giving the plaintiff’s side of the story on the McDonald’s coffee case in which a customer suffered severe burns from very hot McDonald’s coffee. Although she won a handsome verdict, the case has been ridiculed by the defense bar and comedians who should know better. To learn more about “Hot Coffee” you can read this story from Oregon Live.

(ljs)

Law School Accreditations: Ups and Downs

The ABA Section of Legal  Education and Admissions to the Bar has awarded full accreditation to the Elon and Charlotte Law Schools. It  has granted provisional approval to fledgling UC Irvine and has revoked La Verne’s provisional status, apparently because of low  bar passage rates.

(ljs)

New legal "skills" scholarship: "Appellate Briefing: Some Thoughts on Writing Briefs That Can Clear a Path Through the Jungle"

This one is by Margaret Oertling Cupples, a litigation partner with Bradley Arant Boult Cummings LLP, and can be found at 30 Miss. C. L. Rev. 1 (2011). From the introduction:

Appellate lawyers know there are things we cannot change. We cannot rewrite the trial court record to fix a trial lawyer's failure to make a proffer of excluded evidence. We cannot travel back in time to make sure that the court reporter transcribes a bench conference that included an important voir dire ruling never reflected in the record. We cannot give a key witness a second chance to testify after opposing counsel performs an Oscar-worthy cross-examination. And we cannot change the verdict that the judge or jury reached. Instead, just as a tortfeasor learns that "you take the plaintiff as you find him or her," we must take the record pretty much as we find it.

But there is one thing we can do, either to change the outcome for our client if we are seeking a reversal, or to safeguard a winning result if we are asking the appellate court to affirm. We can write an excellent brief.

That brief is likely to be the only chance we have to present our client's position to the appellate court.  In 2009, the Mississippi Supreme Court heard oral argument in only twenty cases out of the 382 it decided.  The Mississippi Court of Appeals heard oral argument in just fifty-eight cases out of 639.

A great brief can win a case, but if it is less than excellent, it can lose the case, too. Chief Justice John Roberts has said that reading a poorly written brief is "almost like hacking through a jungle with a machete to try to get to the point. You spend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works."  Do not send the appellate court into the jungle with a machete. Instead, give the court a way to get through the jungle quickly, on a path that leads to the result that your client wants. For this, the court needs a well-written brief that is concise, persuasive, and clear. To use the Chief Justice's words, when you give the court a well-written brief, you and your client are ahead of the game: the judge who is reading the brief "kind of gets a little bit swept along with the argument," and "can deal with it more clearly, rather than trying to hack through."  This Article provides a few ideas and strategies for getting through the wilderness.

(jbl).

Getting the Most Out of Google Searches

In the June issue of Trial magazine, attorney Dan Siegel argues that most people could get better and faster research results from Google if they knew more about how to tap into its potential:

Although Google is widely used, it isn't necessarily used well. When looking for something on the Web, most searchers rarely do more than type a brief query (a word or short phrase) into the search box on the main Google page. But you can obtain better, more tailored results by tweaking your queries just a little.

In the article he offers a list of favorite search shortcuts. This article is well worth saving.

(ljs)

Drafting tip: Keep the word "especially" out of your contracts

The word "especially" can be ambiguous when used in a contract because it may indicate that whatever it modifies is "particularly important" or it may instead be interpreted to mean "specifically" or "principally."  The problem is, as Ken Adams from Koncise Drafter points out, the former may lead to the conclusion that one scenario in a series is more important than the others when that isn't what the parties intended. By way of example:

Usually, especially is used to mean “particularly,” as in the following examples:

If the scope of work of a Work Order changes, especially the estimated timelines, then the applicable Work Order may be amended as provided in this Section 5.3(a).

Distributor shall not, for any reason whatsoever, disclose any of Taomee Network’s business secrets to any third party, especially Taomee Network’s competitors, failing which it will be subject to severe penalty and, if the circumstance is serious, legal liability.

If any party breaches the contract, especially under material breach, the breaching party shall compensate the other party 20% of the total contracted amount of the last one year.

The Sellers acknowledge that such information is of material to the Business, and will continue to be so after the consummation of the transactions contemplated herein, and that disclosure of such confidential information to others, especially the Company’s existing and/or potential competitors, or the unauthorized use of such information by others would cause substantial loss and harm to the Company.

To the extent to which the contributing Party is entitled to assert claims towards third parties under the contract on the contributed activities, especially claims under guarantees and warranties, it assigns such claims to STOXX as far as they relate to the contributed activities, or asserts such claims in the interest of, at the expense of and in favour of STOXX.

Executive’s obligations under Article III and Article IV of this Agreement (especially those relating to confidentiality, non-competition and non-solicitation) shall continue after his employment with the Company is ended, regardless of the nature or reason for such termination.

The problem with especially is that it’s used to indicate that with respect to a given provision, some subset of the universe to which that provision applies is particularly important. Necessarily, that denigrates the importance of the rest of that universe; that could could hamper attempts to enforce that provision with respect to the rest of that universe.

If you want to make sure that something falls within the scope of a given provision, you can do that in ways that are more neutral than by using especially. For example, through disciplined use of including (see MSCD 12.100).

Drafters also use especially to mean “specifically,” as in the examples below. Using specifically instead would represent a better choice.

This Plan shall be administered initially by the Board of Directors of the Corporation (the “Board”), except that the Board may, in its discretion, establish a committee composed of two (2) or more members of the Board or two (2) or more other persons to administer the Plan, which committee (the “Committee”) may be an executive, compensation or other committee, including a separate committee especially created [read created specifically] for this purpose.

The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially [read specifically] for the Work and shall deliver such bids, and a recap and summary of such bids, to the Architect and the Owner.

(jbl).

Friday Fun: Can you tell a fake smile from an authentic one?

Here’s a fun test you can play by clicking here. It only takes a minute or so.

Spot The Fake Smile

 

• This experiment is designed to test whether you can spot the difference between a fake smile and a real one
• It has 20 questions and should take you 10 minutes
• It is based on research by Professor Paul Ekman, a psychologist at the University of California
• Each video clip will take approximately 15 seconds to load on a 56k modem and you can only play each smile once

 

Overall outlook on life	Optimistic       Pessimistic
Confidence rating of your skill at discriminating between fake and real smiles

Should Nonlawyers Be Able to Invest in Law Firms?

Is the day coming when businesses will become shareholders and bankrollers in law firms? Attorney and blogger Anthony Volpe notes the positives and negatives on this hot issue.

Would nonlawyers understand that the duty is to the clients and not to the shareholders?

Would the public then perceive lawyers as only investment bankers looking for profits?

On the other hand, would investors give small firms the funds to finance taking on risky matters?

Alas, we have only the questions and not the answers.

(ljs)

British Library Partners with Google

The BBC reports that:

"The British Library has reached a deal with search engine Google about 250,000 texts dating back to the 18th Century. "

Full story here. 

“It will allow readers to view, search and copy the out-of-copyright works at no charge on both the library and Google books websites.”

I know some law professors (and librarians) who will be very excited about this news!

(dkh)

10 Ways to Avoid Malpractice Claims

10 Ways to Avoid Malpractice Claims

 

Over at Attorney at Work, practice management consultant Dan Pinnington suggests 10 way to avoid malpractice claims. His big advice is to get things done on time and have good communications with your client. Here is a summary of his advice:

1. Get it in writing. (the terms of engagement)

2. Get the money up front.

3. Manage client expectations.

4. Document, document, document.

5. Meet or beat deadlines.

6. Don’t annoy clients.

7. Ask how you’re doing.

8. Send interim and final reporting letters.

9. Don’t sue for fees. This almost guarantees a counterclaim for negligence.

10. Listen to your gut.

(ljs)

A report from last week's "Future of Law Libraries" conference at Harvard

Here's a link to the list of topics and speakers (which, as you can see below, included some very heavy-hitters from the library, "information management" and media worlds).

And here are links to videos from the various presentations:

Video 1: Welcome, Bob Berring, Carl Malamud, Joe Hodnicki

Video 2: Dick Danner, June Liebert, Robert Darnton, Siva Vaidhyanathan

Video 3: Michelle Wu

Video 4: Jonathan Zittrain (for better audio, watch directly), John Mayer, Kathie Price, Sarah Glassmeyer, Ron Wheeler.

(For greatest success in streaming these videos, use the most recent version of the Quicktime player and open the videos using the right click>open with function).

Over at the Law Librarian Blog, Joe Hodnicki offers some additional commentary as well as several more links to podcasts and blog coverage from the conference (click here).

(jbl).

Tips for a successful job interview

Below is an excerpt of a Q & A between Vivia Chen of lawjobs.com (in bold) and a BigLaw partner regarding tips for making a good impression during a job interview.

[Please describe the] traits that you look for [during a job interview].
I look for authenticity. I want to make sure that I understand who this person is.

What do you mean by "authenticity"? 
What's important is meaningful conversations during the interview. I've had conversations with people about their summer jobs, undergraduate thesis, subjects totally unrelated to law--esoteric topics.

Sounds like you'd rather not talk about law during the interview. 
Well, I don't think [law students] know much about law at that stage. Personally, I like candidates that are passionate about something: a cause, a subject, a hobby. I find that candidates who are engaged with an issue or a subject, both emotionally and intellectually, tend to be people who will be successful lawyers and interesting colleagues.

It also doesn't sound like you're a fan of behavior interviews, where applicants take a psychological test, or ones that grill law students about hypothetical legal problems that some firms advocate.
Oh, that's so silly. What does that accomplish? The best thing is to hire someone who's smart and passionate about something.

What other types of questions do you avoid?  
To me the silliest question is: "Why did you decide to become a lawyer?" It's the last refuge of someone who has run out of things to ask.

You can read the rest of the interview here.

(jbl).

Writing Tip of the Week

Help your reader understand the large-scale organization of your memo or brief with introductions, headings, subheadings, thesis paragraphs, and conclusions.

1. Introduction. Sets up subsections. Usually includes rule. Sets context. Includes material that doesn’t belong under the headings.

2. Headings and subheadings tell the reader what is in the section or subsection. Full sentences. Headings and subheadings in an objective memo can be positive statements or questions. For this class I want you to use questions. Make sure your headings and subheadings clearly reflect the content of the section or subsection.

3. Put thesis paragraphs before subdivisions. Thesis paragraphs introduce the subsections. There are some very good examples in Shapo.

4. Conclusion. The conclusion should sum up the discussion section. If the discussion consists of three main sections, your conclusion should comprise four sentences. Overall conclusion, conclusion I, conclusion II, conclusion III. You can add additional sentences for additional subsections.

Example.

Introduction

I. Heading

Thesis Paragraph

A. Subheading

B. Subheading

II. Heading

III. Heading

Thesis paragraph

A. Subheading

B. Subheading

C. Subheading

Thesis Paragraph

1. Sub-subheading

2. Sub-subheading

IV. Heading

Conclusion

(esf)