Legal Skills Prof Blog

Want to learn how to use Fastcase?

If you don't already know, Fastcase is one of several start-ups offering an alternative to commercial legal research giants Lexis and Westlaw. What makes Fastcase unique is that more than 25 state bar associations offer the service free to members. Consequently, it's something law students should know about, especially those who plan to open their own shop since it's a good way to help lower overhead.

Here are a couple of tutorials you may enjoy yourself or pass along in class.

(jbl).

New skills-related scholarship: “Alternative Justifications for Academic Support II: How ‘Academic Support Across the Curriculum’ Helps Meet the Goals of the Carnegie Report and Best Practices”

This one is by Professor Louis N. Schultz (New England) and can be found via SSRN here. From the abstract:

In the wake of two momentous critiques of legal education, popularly known as the “Carnegie Report” and “Best Practices,” law schools are reconsidering certain basic assumptions about how we educate future lawyers. Even the most forward-thinking reformers, however, struggle with the details of how to implement many of the recommendations of those reports. Providing more formative assessment, for instance, is a laudable objective but one that has serious ramifications in terms of resource expenditures. This article seeks to provide a remedy for many of these struggles: “Academic Support Across the Curriculum.” This piece argues that the reconceptualization of an under-leveraged asset in many law schools, Academic Support Programs (ASPs), can help provide crucial improvements in legal education. By examining the reforms urged by the Carnegie Report and Best Practices, and by detailing the methods of certain exemplary ASPs throughout the country, this piece analyzes how ASPs just might be the answer to many tough questions.

(jbl).

Law Offices in Corporations Are Increasing Their Budgets

According to one reliable survey by a consulting firm,”more law departments have boosted their overall budgets this year, and more are increasing their expenditures on outside counsel."

The survey said 56 percent of CLOs surveyed in October indicated that they had increased their law department budgets from 2010 to 2011, compared to 51 percent who did so the prior year. The median amount of the increase also rose, going from 6 percent in 2010 to 7 percent in 2011. Forty-six percent of law departments increased their outside expenditures, compared to 43 percent last year.

Maybe a glimmer of hope.

(ljs)

CALI Lessons by Casebook

As law students and faculty prepare for upcoming final examinations, CALI lessons are a useful review tool.  This recent blog post highlights CALI’s list of lessons by casebook. 

Student can click on the link to their casebook and review several CALI lessons based on the page numbers in their casebook.  This would be a useful link for any course site!

I know that I’ll be publicizing it at our school.

Happy studying!

(dkh)

New Article: Counterargument and Distinguishing Cases

I have posted a paper on SSRN called Responding to Opposing Arguments and Distinguishing Cases in Persuasive Writing at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966227 .

Abstract: Legal writing involves learning a number of "miniskills." To become an expert in legal writing, a student must learn case analysis, case synthesis, analogical reasoning, rule-based reasoning, small-scale organization, etc. Among these miniskills is the ability to respond to the opposition’s arguments, including the miniskill of distinguishing cases. These miniskills are vital to an expert brief.

In this paper, I will discuss how to respond to the otherside’s arguments and how to distinguish cases. Part II of the paper will examine when and where to respond to opposing arguments. It will explain where in the litigation to put counterargument and where in the brief. Part III will present ways to counter opposing arguments and unfavorable cases. This part will cover general ways to respond to opposing arguments, how to distinguish cases, and how to use rule-based reasoning. The final part will discuss persuasiveness in counterarguments.

(esf)

After its purchase of BNA, Bloomberg seeks "world domination" as information powerhouse

As we're previously reported (here and here), Bloomberg Law has been "lawyering up" for more than a year, becoming one of largest employers of attorneys in NYC, in an effort to compete with Wexis for the lucrative commercial legal research business. According to this report from the Daily Beast, its recent acquisition of BNA is further evidence of its intent to eventually become the leading purveyor of legal information services.

As most of the news industry withers, Bloomberg is booming. Terminal money, which accounts for 80 percent of revenue, has helped the company hire more reporters and editors than anyone else on the planet—more than 2,700 of them—over the last 20 years, from Abuja, Nigeria, to Zagreb, Croatia. More recently it has launched powerful new tools for lobbyists, lawmakers, and other power brokers. Long averse to acquisitions, Bloomberg has also started buying up things it covets, like Businessweek magazine and, just this August, the legal-political research behemoth BNA. There is talk that the Financial Times might be its next meal.

. . . .

When Bloomberg bought BNA for $990 million in August, most Americans had never heard of the Bureau of National Affairs or its 350 newsletters on topics like tax, health care, and labor. It doesn’t produce popular scoops—instead it churns out nuts-and-bolts information on things like an appeals-court judge’s ruling on a patent dispute; when the House Appropriations Committee will mark up an EPA funding bill; and how telecom giants will benefit from a moratorium on wireless taxes. Which means every lawyer, lobbyist, and law-maker in the capital depends on BNA’s proprietary data to do his or her job and gain an edge over competitors. From that angle, BNA is just the kind of company that Bloomberg— already a powerhouse among business insiders—could use to extend its power into new markets, in this case the “influencing community” inside the Beltway.

“It’s utterly logical,” says Steven Brill, the founder of Court TV and American Lawyer. “I lusted after BNA when I owned all my legal publications, because it’s very high-margin, high-priced, and specialized information.”

Hat tip to LegalResearchPlus.

(jbl).

What are most Tweeters tweeting about?

Themselves according to this new study from Rutgers called Is it Really About Me? Message Content in Social Awareness Streams available in pdf here.  According to the study, 80% of Twitter users are "Meformers" who focus on self-indulgent posts about themselves while the remaining 20% are "informers" who share information with their followers. Not surprisingly, the "informers" form the more interactive social media relationships which certainly has implications for those using Twitter as a marketing tool. Look outward, not inward. An excerpt:

Our findings suggest that the users in the “information sharing” group tend to be more conversational, posting mentions and replies to other users, and are more embedded in social interaction on Twitter, having more social contacts. We note that the direction of the causal relationship between information sharing behavior and extended social activity is not clear. One hypothesis is that informers prove more “interesting” and therefore attract followers; an alternative explanation is that informers seek readers and attention for their content and therefore make more use of Twitter’s social functions; or that an increased amount of followers encourages user to post additional (informative) content. A longitudinal study may help us address these alternatives.

Hat tip to The Business Insider.

(jbl).

The top tips for improving your legal writing

Here's an excerpt of an interview with Marie Buckley, author of The Lawyers's Essential Guide to Writing from the December ABA newsletter. When asked to describe the best tips for improving one's legal writing, Ms. Buckley said that lawyers should "lead from the top."

 

Leading from the top is the key to strong, confident writing . . . . In a nutshell, it means that we should always lead with our conclusion.

Leading from the top tells our readers what to look for in the rest of the paper, much like the literary technique of foreshadowing. If we begin by telling our readers what is important, they will hunt for that information as they read and that information will click readily when we present it later. And because our readers know where the paper is going, we can spend less time on transitions later in the paper.

 

Leading from the top means different things in different mediums, but it works for all forms of writing. In email, for example, the subject line should lead for the whole message and the opening sentence is essential. In PowerPoint, earlier slides lead for later slides. In social media, the first encounter with the reader must lead for the rest of the written material.

 

Aside from the time-honored advice about avoiding legalese and jargon, what else can lawyers do to improve the quality of their writing? Ms. Buckley concurs with advice we've heard from other experts; write with confidence, express yourself concisely and always put the reader first.

Strong writing conveys who the writer is as a lawyer and a person. The writer’s voice and intellect sing through and the writing conveys confidence and fosters trust.

Strong writing always considers the readers’ needs. It makes reading as easy as possible because it speaks in a language our readers already know and love—plain English. It avoids jargon and legalese and it uses brave, short sentences.

Good writing focuses our readers’ attention for them because it leads from the top by stating the conclusion at the beginning. Each paragraph begins with a strong lead sentence. Our readers should be able to understand the paper by reading only the first sentence of every paragraph.

Strong writing is concise, but thorough. It always gives our readers choices. Headings and topic sentences allow readers to choose not to read a section or paragraph or to flag a passage for later reading. Strong writing also keeps our readers’ eyes moving. It establishes a measured pace and maintains that pace. The logic flows smoothly and the paper flows.

Finally, good writing looks clean, attractive and professional. Headings, white space and careful alignment all make our papers easier to read. Proximity is also an essential design principle and it simply requires that similar information be placed close together.

You can read the rest of Ms. Buckley's advice here.

Hat tip to Carli Pierson.

(jbl).

From the NYT: "Can Lawyers be Entrepeneurial?"

Part of an ongoing blog series called "You're the Boss: The Art of Running a Small Business."

To some, the phrase entrepreneurial lawyer may sound like an oxymoron, but we’ve just published an article by Eileen Zimmerman, reporting that more and more lawyers are choosing entrepreneurship over the partner track.

Margie R. Grossberg, a partner at the legal recruiting firm Major, Lindsey & Africa, said she saw an increasing number of associates choosing to start their own firms. “In the past, associates found if they worked really hard and did the right things, they made partner,” she said. “That’s not necessarily the case anymore — the odds are a lot slimmer and it’s also not as coveted as it once was.” These lawyers want more control over their futures, Ms. Grossberg said, and do not want to wait until they become partner to have meaningful relationships with clients.

The economy is another factor. “There have been thousands of associates laid off because of the recession,” said Eric A. Seeger, a principal at Altman Weil, a legal consultant. “We’re seeing more lawyers out there now taking risks, and that includes going out on their own.”

The paper then asks "what advice would you give a lawyer starting a firm?"  Although readers have responded with the advice you might expect - create a "brand,"  keep overhead as low as possible, outsource all non-essential tasks, and hire a great paralegal - it's still worth scrolling through the suggestions here.

(jbl).

Judge Posner includes photos in 7th Circuit opinion to illustrate his displeasure with counsel

Although in this instance the use of photographs is humorous (in a sarcastic kind of way), no doubt as we'll see an increasing use of visuals in briefs and judicial opinions to communicate ideas more effectively than words alone as society at large relies more heavily on visuals to communicate.

From the ABA Journal blog:

A federal appeals court is criticizing lawyers who ignore or downplay precedent in an opinion that includes two photos to illustrate.

One picture is of an ostrich and the other is of a man dressed in a suit with his head buried in the sand.

The opinion by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals takes aim at the appeals filed in two separate cases for ignoring precedent, or for discussing the relevant case only a little.

“The ostrich is a noble animal, but not a proper model for an appellate advocate,” Posner wrote. How Appealing links to the opinion and to a story by Thomson Reuters News & Insight.

The two appeals sought to overturn a judge’s rulings sending one case to courts in Mexico and the other to courts in Israeli under the doctrine of forum non conveniens. One involved a suit alleging an accident in Mexico was caused by defective tires. The other involved a suit claiming Israeli citizens were infected in Israel with contaminated blood products made for hemophiliacs.

In the tire case, the plaintiffs’ lawyer never cited relevant 7th Circuit precedent in the opening or reply brief, though the defendants cited the prior case and said the circumstances were nearly identical, the 7th Circuit opinion says. In the blood contamination case, the plaintiffs' lawyer discussed one precedent “a little,” and another precedent “not at all,” the opinion adds.

"Maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents," Posner wrote. "Whatever the reason, such advocacy is unacceptable."

And here's a link to the 7th Circuit opinion.

(jbl).

Update: link fixed

Landmark Supreme Court Cases Via Podcast

The Supreme Court Landmarks podcast series is available here.

"This podcast series features landmark U.S. Supreme Court cases that have shaped history and continue to affect American life. In each episode we briefly discuss a different landmark case with a law professor. We explain the case's background, the key arguments, the decision and why the case is still important today."

This tool could be a useful class and/or study tool.  There are a handful of cases available online now.  New episodes will be added monthly.  You can sign up for email updates to keep track of what material is available.

Hat tip Michelle Olsen (@AppellateDaily)

(dkh)

Advice to !L's taking their first exams

Although much of this advice is common sense, it's still worth repeating (and passing along to your students), as appropriate.  From the Lawyerist blog:

1. Have a plan and try and stick to it.
2. 2Ls and 3Ls are your best friends.
3. Old exams are usually on reserve at the library.
4. Listen to your professors.
5. Clear your calendar of distractions.
6. Adapt your study plan to fit your personality.

Click here to read a detailed explanation for each of these. 

Let me add my own bit of advice to the list; take as many practice exams as possible and do them under realistic, exam-like conditions.  There are always outliers on both ends of the grading curve; the "star" students who seem to have more insight than anyone else as well as those students who really struggle.  But what seems to separate everyone else from the pack is not their substantive knowledge or ability to issue-spot but the ability to write a well-organized, cogent answer under the time constraints of a final exam.  That means taking lots of practice exams beforehand (not just brainstorming about them but actually writing "practice" answers) and then on exam day, taking at least five to ten minutes after reading the question to outline your thoughts on a piece of scrap paper before beginning to write the answer.

(jbl).

Even more legal "skills" related scholarship: "Predicting Lawyer Effectiveness: Broadening the Basis for Law School Admission Decisions"

By Professors Marjorie M. Shultz (Boalt Hall) and Sheldon Zedeck (UC, Berkeley) and available at36 Law & Soc. Inquiry 620-661 (2011) and SSRN here.  From the abstract:

The problem of how to define merit and achieve equity in high stakes selection is deeply contested in the many arenas of our society where scarce resources and privileges are allocated. Law school admission is one such arena. The Law School Admission Test (LSAT) dominates current admission decisions for law school, but it assesses only a few competencies and has a large adverse impact on minority applicants. Moreover, the LSAT and its associated Index Score focus on law school performance and are not strongly predictive of lawyer performance.

Innovative exploratory research by two UC Berkeley faculty (Marjorie Shultz, Law and Sheldon Zedeck, Psychology) has demonstrated that on-the-job professional effectiveness of lawyers can be predicted. The new Shultz-Zedeck tests, developed based on models from employment selection and promotion and the field of industrial psychology, identify and assess many factors not measured by the LSAT that are vital to lawyer efficacy, such as problem solving, advocacy, practical judgment, and communication skills. Exploratory research conducted with participation of more than 5000 law grads suggests that tests can be developed and validated that will predict professional performance (as appraised by peers and supervisors). Equally important, performance on these new tests shows no significant race, ethnic or gender differences. This research has the potential to diversify the pool of students admitted to law schools and to do so on the basis of a principled definition of merit rather than on the basis of more politically and legally controversial methods of race-conscious affirmative action. The next step is a national validation study to ready this new approach to law school admission for adoption by the nation’s law schools.

(jbl).

New legal "skills" scholarship: "Law School Clinics and the First Amendment"

By Professor Jonathan L. Entin (Case Western) and available at 61 Case W. Res. L. Rev. 1153 (2011). From the introduction:

Professor Babich has provided us with a troubling account of external pressures brought to bear on a highly regarded clinic at Tulane Law School. Professor Joy has put the Tulane story into broader context with accounts of other clinics that have encountered similar criticism and efforts to confine their activities. In this brief comment, I want to raise questions about the extent to which law school clinics could successfully assert First Amendment defenses against outside efforts to restrict their activities in the event that such pressure were to result in litigation.

The discussion proceeds in three stages. First, I will offer other examples in which law reform has generated political backlash. The frequency of the phenomenon should come as no great surprise. Perhaps the haves do not always come out ahead, but just as the race is not always to the swift or the battle to the strong, we should expect the haves to defend their position vigorously.

Second, I will address some First Amendment issues that bear on this subject. Specifically, I will examine the implications of Garcetti v. Ceballos, a 2006 ruling that takes a restrictive view of the speech rights of public employees and therefore might have troubling implications for clinics at public law schools. I will also examine Legal Services Corp. v. Velazquez, a pre-Garcetti case that points in the other direction by treating the activities of government-funded lawyers as private speech rather than government speech.

Third, I will pick up on a hint in Garcetti that academic freedom, which has important First Amendment aspects, might bear on the extent to which law school clinics enjoy legal protection against some of the egregious assaults that Professors Babich and Joy recount in their articles. In doing so, however, I will point to some ambiguities in the law of academic freedom and in the nature of law schools that might limit the extent of protection that academic freedom provides to clinics.

(jbl).

Making Legal Analysis Explicit

The Carnegie Report has challenged law teachers to place greater emphasis on legal skills.  Nelson Miller and Bradley Charles have given one answer on how to do this in their article Meeting the Carnegie Report's Challenge to Make Legal Analysis Explicit--Subsidiary Skills to the IRAC Framework.

Abstract:
The Carnegie Foundation report "Educating Lawyers" argued that law schools should make explicit the subsidiary skills that law schools teach to graduate practice-ready lawyers. The authors of this article identify, organize, list, and explain the subsidiary skills necessary for analytic and analogical reasoning of the kind practiced by lawyers. They also suggest ways to instruct law students in those reasoning skills, meeting the Carnegie Report's challenge.

I don't think the abstract does the article complete justice so here are a few excerpts from the introduction: 

"Although the traditional view has been that teaching critical thinking is straightforward, more recently it has been suggested that the traditional view is seriously misleading. Cognitive psychology has taught us that the best students and, for that matter, the best experts, are those who master the subsidiary skills of analysis." 

"Law professors play a key role in teaching the subsidiary skills. They, who intuitively perform these subsidiary skills, have the responsibility to better understand the workings of their craft and to explicitly teach those workings. That means that law professors must think in greater detail about what it is that effective, skilled, and ethical lawyers are doing when performing legal analysis." 

"This article attempts to illustrate how faculty can teach these skills by briefly highlighting the process that leads to the substantive outcome."

(esf)

New York Times Editorial on Legal Education: Accentuating the Positive

The New York Times has another piece on legal education here.  However, this time the editorial takes a very different approach than previous articles: It focuses on the innovations some law schools are making.  The editorial states, "Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers."  It continues, "In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways."  It concludes, "Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide."

I couldn't agree with the conclusion more.  While the editorial is a little short on details, it is moving in the right direction by encouraging more of the innovations some law schools are already undertaking.

(esf) 

The Carnegie Report and Legal Writing

Lisa McElroy, Christine Coughlin, and Deborah Gordon have just posted an excellent and comprehensive article on SSRN entitled The Carnegie Report and Legal Writing: Does the Report Go Far Enough?

Abstract:

The 2007 release of a comprehensive and innovative report on legal education, known now simply as the “Carnegie Report,” has generated widespread enthusiasm throughout the legal academy. Recognizing that law school “forms minds and shapes identities” of nearly all legal professionals, this landmark look at legal education applauds and defends legal pedagogy that integrates “theoretical and practical legal knowledge and professional identity.” Many legal educators have acknowledged the Carnegie Report’s importance, and some have begun to propose and develop educational programs that implement the Report’s recommendations.

Not all responses to the Carnegie Report have been positive, however. While heralding the Report’s broad goal of fostering a law school experience that integrates theory, practice, and professionalism, some legal educators have cautioned that the Report does not go far enough because it continues to embrace case dialogue as law school’s signature pedagogy, recommends additional forms of pedagogy that replicate the same fundamental problems, or sacrifices traditional subject matter necessary for the development of professional skills.

With respect to legal writing, the Carnegie Report praises the work of legal writing faculties, largely in recognizing that these professors grasp that the best law school teaching is interactive and experiential in nature. Much of the Report’s discussion of legal writing, however, reinforces the hierarchies and damaging stereotypes that undermine the Report’s fundamental lessons about educating thoughtful, engaged, and ethical lawyers. The Report also fails to appreciate the significant lessons that legal writing professors can teach their “‘non-skills’ colleagues. With expertise in developing techniques for experiential learning, outcomes assessment, and formative assessment, skills faculty have much to share with the rest of the academy.

In an effort to further the already significant strides in legal pedagogy that the Carnegie Report has engendered, this Article highlights some of the Report’s shortcomings in its description of legal writing and the place that legal writing has in traditional legal teaching. It describes the Carnegie Report’s basic recommendations for legal educators and some of the many responses to those recommendations, then examines the Carnegie Report’s unquestioning acceptance of hierarchies within the legal academy and describes how these attitudes damage law student learning. It explains that skills faculty — who know a great deal about formative assessment, the focus of the proposed ABA standards — can both provide guidance on making legal learning more interactive and experiential and guide non-skills faculty in implementing the Report’s fundamental charge to make assessment more meaningful.

In sum, although this Article commends the Carnegie Report’s recognition that legal education can benefit from an integrated approach to learning, the Article also addresses the Carnegie Report’s shortcomings in its approach to and commentary on skills faculty. Specifically, the Article criticizes the Report’s failure to recognize that legal writing professionals routinely use best practices in education, including formative assessments, and notes its missed opportunity to promote this particular expertise throughout the academy.

(esf)

Google Services Closing

This post from LISNews provides the following list of Google Services that are being closed:

Google Bookmarks Lists
Google Friend Connect
Google Gears
Google Search Timeline
Google Wave
Knol
Renewable Energy Cheaper than Coal

You can get more information from the Google Blog here.

(dkh)

Friday Fun: A professor's field guide to student hand-raising

From the website CollegeHumor.com with a hat tip to the New York Times:

The Ooh Ooh, I Know!

ME! I KNOW! Look at the way I’m supporting my outstretched arm with my other arm! If you don’t call on me, I might die. At the very least I’m going to start whimpering. WHY ARE YOU NOT CALLING ON ME?! I’m in the front row and I’ve been holding my arm up for so long that it’s starting to shake. LOOK AT ME! I can’t feel my fingers anymore. I also don’t remember what I’m raising my hand to say, BUT PLEASE CALL ON ME ANYWAY OR I’M GOING TO HAVE TO START BOUNCING IN MY SEAT!!!

The Nonchalant

Uh, yeah, I might have something to say. Not a big deal though. You can call on me. Or not. Whatever. I don’t really know why I want to answer your question. It’s not like I care. Hold on, I got a text message. I’m going to read that and then you can call on me if you feel like it. But don’t worry, I’m going to keep the phone level with my thigh while I text so it looks like I respect this class even though we all know that I don’t. I should probably put my phone on silent.       

    

 The Note-Taker

Oh man, I wish I could raise my hand and answer your question, but I am just so busy taking notes. I obviously know the answer, but I mean, you understand. I have to keep writing the word “Hemoglobin” over and over again until you’re convinced that I’m busy, yet studiously attentive, and you call on someone else. Why do I only take notes when you’re asking questions? Ah, let me write that question down and vigorously avoid eye contact. I think that kid who’s bouncing in his seat knows though.

The Back Row

I’ve been watching the Sopranos illegally online all class, but I reached my 72 minute limit on Megavideo, so I decided to Wikipedia what you’re talking about. Now I’m going to ask a really specific question so you think I did the reading and that hot girl 3 seats down thinks I’m one of those genius slackers that only really exist in teen dramadies. I love disproving stereotypes about people who sit in the back row. Oh, sweet. Friday Night Lights is on NetflixInstant Play.

 

The Maybe

Yeah, what I was going to say is that I like to start my comments with “I was going to say” and then proceed to say what I was going to say, thus making that phrasing illogical. So, um, I think you might want to call on me? Also, I’ll make my last sentence sound like a question because I’m not confident about what I’m saying?

 

The One Finger Dissent

Uh, I’m going to have to disagree actually. I know you haven’t finished talking, but I can already tell that I disagree. I’m pretty sure the professor disagrees too. I mean, psh, I can see that she’s nodding and smiling at you, but she and I have a more subtle understanding. Right, professor? Professor?

                             

The Hands Free

I’M TALKING. LISTEN TO ME TALK. JUST TRY TO GET ME TO STOP TALKING. I DON’T CARE THAT CLASS ENDS IN 30 SECONDS. I’M GOING TO ASK A COMPLICATED QUESTION AND NOD ATTENTIVELY WHILE THE PROFESSOR ANSWERS. THE FACT THAT EVERYONE IN THE ROOM WANTS TO PUNCH ME IN THE NECK DOES NOT MATTER. ALL THAT MATTERS IS THAT I AM TALKING RIGHT NOW AND YOU ARE NOT.

(jbl).

25 Tips for the New Lawyer

From Attorney at Work. Most of these tips sound like common sense, but you would be surprised how many lawyers need to hear them—or maybe you wouldn’t be surprised.

(ljs)