Saturday, December 31, 2011
I'll let you in on a little secret. While the rest of NYC is celebrating New Year's Eve in Times Square, Central Park is the much better place to share a reflective moment with someone special.
It's 11:59 p.m. on December 31, 2011 in Central Park and I'm with the most special person ever. Life is good. I love you, Doreen.
First, Happy New Year!! At the beginning of January, we like to take a hopeful look at the coming year. Many of us make New Year’s resolutions. The resolutions tend to deal with our nonprofessional lives. However, we also might think about making resolutions about how we will conduct our professional lives. I am still thinking about what mine should be. Here is my current list.
1. Find ways to be more efficient at work.
2. Avoid letting my desk and office become a cluttered mess.
3. Get to know more students.
4. Find or create a new project, preferably one that has little to do with my law school duties.
What are your professional resolutions?
Friday, December 30, 2011
Just in time for the New Year:
One holiday task that can be taken care of early is the egg nog, if you trust a recipe that showed up in Box No. 87 of the Library of Congress Manuscript Division's Harlan Fiske Stone Papers.
Stone, Chief Justice of the Supreme Court of the United States from 1941 to 1946, hosted an annual New Year's Eve reception, and although he was better known as a wine connoisseur, his way with egg nog has survived.
Here’s the recipe. Powerful stuff.
Happy New Year’s Eve!
Thursday, December 29, 2011
For the December 2011 Oklahoma Bar Journal I decided to pass along some interesting add-ons for a PC user. It's not like the old days where you had to cobble things together yourself with lots of customizations and add-ons, but I think you will find these additions helpful. Oklahoma lawyers who read this in the Bar Journal may still find this version useful as the hyperlinks have all been enabled (and corrected from the entire PDF version of the Bar Journal on our website.) So download this file to more easily visit the sites mentioned and install some of these useful add-ons. Download Gadgets_Gizmos_and_Apps.Calloway.Oklabaj
Click here for the pdf Gadgets, Gizmos and Apps.
From our buddy Joe Hodnicki at the Law Librarian Blog:
According to the 2011 Clio Apple in Law Firms Survey results, summarized here, 46.5% of respondents said they chose Apple hardware over PC options because the technology was more reliable and secure. Usability ranked next at 33.8%. Familiarity due to home use of Apple/Mac products was 9.8%, and aesthetics and design came in fourth at only 3%. 76.5% of law students said that when they graduate, they plan on choosing a Mac platform for their office. Of particular interest in that 25.3% of respondents had switched to Mac within the past year.
About this year's survey findings Clio CEO and Co-Founder Jack Newton said:
Apple hardware and devices – especially the iPad and iPhone – continue to capture the attention and dollars of lawyers, cloud-based applications have won attorneys’ confidence and gained more traction. With the majority of law students planning to use Mac apps in their law practices upon graduation, we can reasonably predict a longstanding trend toward continued expansion of Apple products within the legal industry.
763 people participated in the survey, 80% of which were practicing lawyers and 20% of which were law students or non-lawyers. 76% of respondents were lawyers at firms with 10 attorneys or less.
For the past 50 years, the Model Penal Code has divided state of mind (mens rea) into four categories: purposeful, knowing, reckless, and negligent. According to a recent empirical study, jurors are pretty good about understanding and employing the categories—with one exception. They have a difficult time distinguishing between “knowing” and “reckless.” The distinction can have major consequences when it comes to sentencing.
I have found very few relatively recent empirical studies on how jurors understand jury instructions. As this study demonstrates, more work is needed. Here is the article from the NYU Law Review
Wednesday, December 28, 2011
It's a case involving the tort liability of the Brooklyn Public library in a matter that appeared before Judge Arthur Schack of the New York Supreme Court. If you're looking for real-life examples to circulate to students this spring on how not to write a brief, you may want to add this one to your file. From 3 Geeks and a Law Blog:
Justice Schack blasted the defense counsel from Wilson Elser argument as being "disingenuous" and went on to say that the argument "borders upon being frivolous, because it is completely without merit in law." He even puts in a final punch toward the end of the opinion by saying, "The Court finds it interesting that defendants [Brooklyn Public Library] and WHITTAKER did not make their disingenuous lack of a notice of claim argument until they were represented by their new counsel, Wilson, Elser." Ouch…
But wait. It gets better.
Continue reading here.
Shameless Plug Department: Villanova Law School and the University of St. Thomas Law School (Minneapolis) have announced their sixth annual summer program in Rome, June 25-August 2, 2012. My colleague, Professor Diane Edelman administers the highly successful program. Here are the courses:
Professor Wulf Kaal, University of St. Thomas
International Intellectual Property
Professor Thomas C. Berg, University of St. Thomas
.Islam and Civil Liberties in Europe
Professor Robert Kahn, University of St. Thomas
State, Society, and Economics
Professor Michael M. Moreland, Villanova
More information is on the program’s website.
Tuesday, December 27, 2011
Last week, I mentioned an important article by Stefan Krieger and Serge Martinez, which emphasizes students’ ability to reason in practice (cognitive competence) as a better measure of outcomes, than just their ability to perform, which is stressed in the Carnegie Report and Best Practices. They cite to a medical study, which stated, "testing cognitive processes may be a better predictor of ability in practice than scores on standardized-patient exams." Krieger and Martinez propose to study cognitive competence through think-aloud interviews. They declare "one of the methods now being used experimentally by medical educators to assess cognitive competence is the use of the ‘think-aloud’ interviewing methods employed in cognitive science studies of the reasoning process." Under this method, "researchers ask subjects during the interview to verbalize their thoughts spontaneously as they emerge in attention." They continue, "we give students in a clinical program a hypothetical problem that is representative of work they have experienced in a clinical program, and record them as we ask them to talk it through. Our hypothesis is that by prodding students to just talk about a problem without a filter, we will understand, as well as possible, what they are thinking ‘in practice.’"
I propose that not only are think-aloud techniques valuable in assessing student learning, they are a capstone technique in teaching students to solve legal problems. Professors Krieger and Martinez state, "course design must give students opportunities to develop the ability to reason in practice, and not simply to learn different expert techniques." In Contracts, A Context and Practice Casebook, Michael Hunter Schwartz and Denise Rabe include think-aloud problems in their last chapter. A think-aloud analysis "includes the author’s thinking process in evaluating the question and preparing a written answer."
The advantage of the think-aloud process is that it helps students build step-by-step strategies to solve problems. (Actually, it reminds me of math classes in elementary school in which we were required to show our work. In other words, the process is just as important as the answer.) It also helps students to develop the ability to deal with new types of problem, which is vital in practice.
Legal writing teachers have used the think-aloud method for years without realizing it. For example, when a student comes to me and asks how to begin a problem, I have that student tell me how they would approach the problem step-by-step. Similarly, when a student asks me how they should organize the argument section, I help them come up with an outline by having them think aloud the organization. I assume that clinical teachers do similar things.
The one difficulty is how law schools can use think-aloud techniques when law schools generally have large classes. First, this approach can easily be used in legal writing classes, clinics, and academic support, which already have a great deal of student-teacher contact. Similarly, classes after the first-year often are smaller. Law schools have seminars that have a limited number of students; why not capstone classes to develop problem-solving skills that have a limited number of students? Professors can also employ this technique in larger classes, as suggested by its inclusion in the Schwartz/Rabe contracts book. Students can pair off and take each other through the problem-solving process. Students can be video-taped, or they can record themselves. Third-year students could also be teaching assistants to help first-year students with the process. Professors could also assign their students to write out their thinking process (write aloud). Finally, teachers can use this technique in the classroom. If the socratic dialogue works in the classroom, there is no reason that taking students through the process of solving problems wouldn’t also work in the classroom. (For example, in my research strategy class, I have the students think aloud how they would approach a research problem based on a set of facts.) In fact, thinking aloud goes with adopting new materials. If professors do problems in class, then much of the class will consist of thinking aloud through the steps of reasoning for the problems.
A couple of weeks ago, David Segal of the New York Times published a widely circulated article blaming the plethora of ABA accreditation requirements on the high cost of legal education. In this recent article from the AmLaw Daily, Matt Leichter of the Law School Tuition Bubble blog argues instead that it's the ease with which students are able to borrow money to finance their legal education that drives up the price of tuition.
. . . . Universities are outright rentiers. They have easy access to debt-revenue, so they take it. Sure, the ABA’s accreditation standards romanticize elite industrial-era law schools, but until the boards of trustees of America's [pick most law schools] challenge themselves to kick their Direct Loan habits, they’ll simply charge more—and take more—because they can, irrespective of what U.S. News or anyone else thinks of them. The only thing left to surprise us is on a moral level: How can university administrators sincerely believe their own justifications for economic rents?
Then check out this post by Scamprof Paul Campos called Adventures in Lemming Psychology in which he posits that students will continue to line up for all that easy credit especially when a lousy economy limits other options. (Bonus - read the post to learn the origin of the popular myth that lemmings hurl themselves off cliffs - in truth, they don't).
You know the rule, but one lawyer is raising a challenge with an interesting argument:
Many lawyers have found themselves in disciplinary trouble after entering into romantic relationships with clients. A Connecticut lawyer facing disciplinary inquiry for a romantic entanglement with a client has raised a novel argument: the bar should not discipline lawyers who represent lovers, because a lawyer will provide better representation to one he or she loves. As Zenas Zelotes puts it, “You aggravate a client, maybe you lose their business. You aggravate a sweetheart; you’re sleeping on the couch.”
The case is still going on. I suspect that the lawyer in question has an uphill struggle. Here’s more of the story from the Disciplinary Board of the Supreme Court of Pennsylvania.
Monday, December 26, 2011
This past year was a watershed moment in terms of outside scrutiny of legal education. Whether it was accusations that law schools goosed the stats on incoming students, inflated employment figures for recent grads, or failed to impart practical legal "skills" to students, never in the history of legal education have so many - from the popular press, to U.S. Senators, to legal employers and jobless graduates, and even law professors themselves - questioned whether the American legal educational system needs some serious fixing. One could blame the pressure created by the USNWR rankings combined with a declining applicant pool for much of the behavior that's come to light over the past year. And while that's undoubtedly true, it's also a cop-out. Law schools must be paradigms of honest-dealing when it comes to students. Comporting oneself with integrity and forthrightness are among the key "skills" we are trying to teach our students. The events of the past year hurt all of us in a way that will take a long time to overcome.
Here are some of the "top" stories of 2011 regarding the state of legal education as compiled by the National Law Journal.
1. Pants On Fire
It is a truth universally acknowledged that law schools feel pressure to admit students with good grades and high scores on the Law School Admission Test, since those metrics count heavily toward their U.S. News & World Report ranking. That pressure got the better of some [schools that inflated the stats for incoming students]. . . . The Law School Admission Council — which maintains data on applicant tests scores and grades — now is considering whether to audit the figures law schools report, and the ABA is mulling tougher penalties for schools that lie.
2. Sue Your School
Instead of asking alumni for money, maybe law schools should ask graduates to pledge not to sue them. 2011 will go down as the year law students got litigious — at least against their alma maters. [Several schools were sued by unemployed or underemployed grads who allege that their former schools inflated post-grad employment stats to induce them to enroll]. . . . This could be the first sign of a litigation wave.
3. U.S. Senators Give The ABA The Stinkeye
Forget the fight over the debt ceiling or high unemployment. A number of U.S. senators this year zeroed in on the American Bar Association's oversight of law schools — or what they apparently see as a lack thereof. . . . Rumors have been swirling that the U.S. Senate Commerce, Science and Transportation Committee will hold hearings on law schools next year.
4. Anybody Want To Go To Law School?
It was bound to happen. Applications to American Bar Association-accredited law schools declined by 10 percent in 2011 after increasing during each of the previous two years as recent college graduates sought to ride out the dismal job market in law school. The number of people taking the Law School Admission Test during the 2010-11 cycle also declined by 10 percent — a huge reversal from the previous year, when that figure increased by 13 percent. It seemed that all the grim news about rising tuition and a weak legal job market finally sank in with some would-be law students.
5. Show Me The Data!
The movement to improve law school consumer information started when the legal job market dried up several years ago, but really hit its stride during 2011. Law School Transparency — a nonprofit founded by two Vanderbilt University Law School graduates — lobbied individual schools and the American Bar Association to improve the reporting of job and salary data, and saw results.
Check out the remaining "big" stories for 2011 by clicking here.
The recent news report that Maryland Governor Martin O’Malley threatened the budget of the University of Maryland Francis King Carey School of Law because it filed suit against Perdue Farms Inc. and a chicken farm that supplies Perdue is troubling on all levels. Putting aside all merit considerations regarding the suit, there are no positives in the governor’s actions.
So writes attorney Anthony Volpe in his posting on the Legal Intelligencer blog. This incident is often repeated at other law schools when student take on influential interests. It often takes some courage for law schools to stand up to this sort of interference. Here is the posting.
Law student well being has recently become a hot topic in legal education reform. There is a listserve on law student well being (Law-legaled) and an AALS Section (Balance in Legal Education). Now, law student well being is entering the textbooks. Contracts: A Context and Practice Casebook by Michael Hunter Schwartz (Carolina Academic Press 2009) includes material on this topic. At the end of each chapter, the authors have Professional Development Reflection Questions that contain questions and exercises concerning well being (especially toward the back of the book). These questions and exercises focus on the positive psychology movement, which has created strategies for increased happiness. For example, they write, "one strategy for increasing your happiness is to cultivate a sense of gratitude by thinking about things in life you have to be grateful for." (p. 488)
Count to Five
A lot of people say to count to ten to avoid getting angry. But Lawyerist is a site for lawyers. Our time is very valuable, so I say only count to five. Even just a five second pause can keep you from making that off-the-cuff smart remark. Those five seconds can also buy you valuable time to respond to an overruled objection or lost argument. Five seconds may seem like a long time when you’re standing in court or a partner’s office. But in reality, it’s just enough time to take a nice deep breath. While you’re doing that, remind yourself that you’re not someone who loses it. You’re someone who keeps their cool (and a job). Enjoy your deep breath, then get back in the game.
Hit the Gym
A German study shows that exercising can literally stave off anger. Unfortunately, most of us can’t hop onto a stationary bike to avoid blowing our tops at a lousy objection. Luckily, exercise also helps lower our levels of stress and anxiety. That means hitting the gym a few times a week can put you in a better mental state before you get to work in the morning. Less stress and anxiety buildup will likely make you less prone to anger.
If hard core workouts aren’t your thing, I can also recommend yoga. Yoga can provide similar stress relief without all of the grunting that can be found in a gym. Just be careful about going to yoga before work. At the end of a yoga class you will do a savasana. This is where you lay down on your back and just focus on your breathing while you clear your head. It’s a great relaxation technique. I tend to fall asleep and then get a little groggy when I wake up and need to go to work though, so just be aware of that.
Focus on the Goal
When you are completely in the zone and focused on the task at hand, it is easier to let infuriating comments slide off of you. Remember the last time you were really in your flow while writing a brief. Your mind wasn’t in a hundred places at once. You were completely focused on your task and getting the job done. As a result, the ridiculous e-mail you got didn’t immediately raise your blood pressure.
When you’re in court, a complete focus on your goal can be equally helpful. Attorney Michaelene Weimer says that when she is arguing before a judge, she is zeroed in on her argument. She knows which points to make and where her strengths and weaknesses are. That way, if things aren’t going her way, she doesn’t get angry. Instead she refocuses on her strong points and reaching her goal: winning. By staying focused on your goal you can push the emotion aside in favor of logically working through the problem at hand.
Read more here.
Sunday, December 25, 2011
In North Carolina, the answer is yes. Groupon offers consumers “daily deals” online. The deals entitle consumers to discounts on various services. According to the North Carolina State Bar Ethics Committee, lawyers can offer their services on Groupon and similar websites.
There are the obvious qualifications: (1) no misleading advertising; (2) fees received from the website must go into the lawyer’s trust account; (3) the lawyer must honor the professional relationship with the purchaser of the discounted legal service; (4) the lawyer must not retain a clearly excessive fee; (5) the lawyer has the duty of competent representation. I would also warn the consumer that you often get what you pay for.
Here is the opinion.
Saturday, December 24, 2011
From Law is Cool.” Here are the opening lines:
Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.
A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.
Friday, December 23, 2011
Advocacy to Zealousness: Learning Lawyering Skills from Classic Films includes 26 skills, listed in alphabetical order and appearing in separate chapters, which should ideally be in every lawyer’s toolbox. Each is an example of professionalism, and all are possible for every current or future lawyer to attain or sharpen. They also speak to our needs in the legal profession in the new millennium. Interspersed throughout the text are subtle references to diversity, both in the practice of law, as well as in various film references and storylines.
Each chapter includes a discussion of the skill and its use for lawyers, a synopsis of the film associated with the skill, film discussion questions, and brief exercises for improvement. The format encourages readers to either methodically review each chapter in alphabetical order, or skip around as needs and interests dictate. The book concludes with a comprehensive index.
Images, be they positive or negative, are powerful and long lasting. Those found in popular films are often our only points of reference until we meet the real thing — or assume the role ourselves. Many professors already use film clips in their classes, but, until Advocacy to Zealousness, there was no singular point of reference for films selected solely for the purpose of fostering and sharpening lawyering skills. Legal skills training needn’t be dry or cumbersome. With creativity and planning, it can instead be educational, memorable, and enjoyable — while also remaining comprehensive and relevant — thereby enhancing the practice of law and the legal profession as a whole.