Friday, November 23, 2012
Each Year, the American Dialect Society picks a “word of the year”:
Word of the Year is interpreted in its broader sense as “vocabulary item”-not just words but phrases. The words or phrases do not have to be brand-new, but they have to be newly prominent or notable in the past year.
You can nominate the word for the year 2011 here. For purposes of guidance, here are the words of the year for the past several years:
" Expanding the Lawyers' Toolkit of Skills and Competencies: Synthesizing Leadership, Professionalism, Emotional Intelligence, Conflict Resolution, and Comprehensive Law."
This is a new "legal skills" related article by Professor Susan Daicoff (Florida Coastal) and available at 52 Santa Clara L. Rev. 795 (2012). From the introduction:
The legal profession is in the midst of rapid and dramatic change, fueled by longstanding dissatisfaction within and without the profession, and inflamed by the economic recession beginning around 2007. Changes in the profession are propelling or reflecting concomitant changes in legal education. Lawyers may no longer be able to rely simply on excellent legal analysis and advocacy, written and oral communication skills, trial skills and traditional pre-litigation negotiation and settlement skills. Clients want more legal work for less cost. Law school applications have declined and unemployment among lawyers is a concern. In efforts to cut costs, clients are hiring auditors to oversee and audit their counsel's legal bills, and using in-house counsel, paralegals, or even nonlawyers to do their legal work. Court dockets are clogged to the point of inaccessibility and yet many parties still lack access to lawyers. The legal profession is rife with commentary exploring how to be more marketable in the law profession of the future given the rapid changes fostered by technological advances, disruptive concepts and strategies, the need for sustainability, and outsourcing. Law schools are under fire for providing students with unsatisfactory returns on investment, when students compare their employment prospects with the cost of legal education. A reevaluation of the competencies needed to be a twenty-first century lawyer thus seems appropriate. Some assert that it is time to decisively redefine both the role of the lawyer and the content of legal education.
Law firms are experimenting with different interviewing methods and processes, including performance-based tasks and simulations. Law schools are placing a greater emphasis on bar passage results and teaching lawyering skills, rather than limiting classes to the acquisition of doctrinal knowledge and traditional lawyering skills. Some are expanding the set of skills being included in legal education, while others may even be experimenting with admissions criteria that include assessing applicants' proficiency in various competencies, in order to produce more effective graduates.
In evaluating legal education reform, law schools have turned to empirical studies to define the skills needed to be an effective lawyer. These studies highlight the importance of skills sometimes overlooked in legal education. This Article will first synthesize a number of empirical studies identifying the skills and competencies important for effective lawyering. It will briefly evaluate their inclusion in current legal education. The Article will also explore twelve disciplines that provide training for law students in these skills and competencies and advocate the synthesis of these twelve fields, in an effort to prepare lawyers more effectively for the legal profession of the future.
Thursday, November 22, 2012
If some of your students are thinking about attending business school after finishing law school, Bloomberg’s rankings may be informative. Bloomberg offers a ranking of full time MBA programs as well as a couple of other rankings, including "Good Schools If You Didn't Ace the GMATs."
Wednesday, November 21, 2012
A proposal to follow the lead of the New York Court of Appeals by creating a national, mandatory pro bono requirement for all students attending ABA accredited law schools didn't gain much favor with the ABA accreditation committee during its meeting last week according to this report from the New York Law Journal.
It appears that a New York-style pro bono requirement for law students won't be going national anytime soon.
Several organizations and legal leaders have asked the committee that is updating the American Bar Association's law school accreditation standards to add a 50-hour pro bono requirement, but that idea got a chilly reception from the committee at its most recent meeting on Nov. 16 and 17.
None of the nine committee members in attendance endorsed the idea, which generated only a few minutes of discussion. Those who took a position said that requiring a certain amount of pro bono work is outside the scope of the ABA's accreditor role.
"My own thought on this is that meeting the need for legal representation should not be the goal of accrediting law schools," said committee chairman Jeffrey Lewis, a dean emeritus and law professor at Saint Louis University School of Law.
Erica Moeser, a committee member and the president of the National Conference of Bar Examiners, agreed.
"I don't think the [ABA's accreditation standards] should be used by anyone as a vehicle for good works," she said.
Continue reading here.
Our knowledge of the first Thanksgiving rests on shaky grounds. We have two accounts, which may be of the original holiday
In a letter to a friend, dated December 1621, Edward Winslow wrote: "Our harvest being gotten in, our Governor sent four men on fowling, that so we might after a more special manner rejoice together, after we had gathered the fruit of our labors; they four in one day killed as much fowl as, with a little help beside, served the Company almost a week, at which time, among other Recreations, we exercised our Arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some 90 men, whom for three days we entertained and feasted and they went out and killed five Deer, which they brought to the Plantation and bestowed on our Governor, and upon the Captain and others."
The following is from Governor Bradford:
"They began now to gather in the small harvest they had, and to fit up their houses and dwellings against winter, being all well recovered in health and strength and had all things in good plenty. For as some were thus employed in affairs abroad, others were exercised in fishing, about cod and bass and other fish, of which they took good store, of which every family had their portion. All the summer there was no want; and now began to come in store of fowl, as winter approached, of which this place did abound when they came first (but afterward decreased by degrees). And besides waterfowl there was great store of wild turkeys, of which they took many, besides venison, etc. Besides, they had about a peck of meal a week to a person, or now since harvest, Indian corn to that proportion. Which made many afterwards write so largely of their plenty here to their friends in England, which were not feigned but true reports."
NOTE : The Mayflower arrived in Plymouth in December of 1620. No further ships arrived in Plymouth until immediately after that "First Thanksgiving" - the Fortune arrived in November of 1621. One of the passengers on the Fortune, William Hilton, wrote a letter home that November. Although he was not present at that "First Thanksgiving," he does mention turkeys. Click HERE for William Hilton's letter.
These sources appear on the Pilgrim Hall Museum website.
Tuesday, November 20, 2012
Writing across the curriculum has long been an important subject for legal writing professors. Christy Hallam DeSanctis and Michael D. Murray have written a book on writing across the curriculum that includes problems and exercises for first-year and upper-division classes.
Abstract: This book contains research and writing problems, drafting problems, and writing in the law discipline problems with the goal of helping students to develop the skills necessary to practice law. Part 1 includes problems in each of the first-year subject areas: contracts, torts, civil procedure, criminal law, property, and constitutional law. Parts II, III, and IV present problems for each topic of a first-year legal research and writing course. Part V contains problems from upper-division courses such as remedies, copyright, right of publicity, and advanced constitutional law.
That's according to a recent LexisNexis/Martindale-Hubbell survey of 209 law firms from around the globe (excluding U.S. firms) reflecting a cross-section of small, medium and large shops. One of the take-aways being that individual lawyer bios are one of the best, most effective online marketing tools meaning that those bios need to be dressed to impress.
Based on initial qualitative interviews conducted in April 2012 and an online, quantitative survey in July, the study "The Use of Websites in Law Firm Marketing" reflects the views of 209 law firms across six world regions (excluding the United States). Amongst all participants, offline tactics currently account for just over two-thirds of all marketing spend, compared to 38% for online - though many respondents expect this to change in the future as online methods become more widely adopted in their marketing programs.
. . . .
Firms that responded to the survey perceive their website to be 'very effective' (34%) in helping to build their reputation and awareness of their brand. A disparity, however, lies in the role that their websites play to help generate new work. Here respondents are seemingly more ambivalent, with more than one third (36%) feeling that their website fails to sufficiently support lead generation - though this view was more prevalent among respondents from smaller law practices and firms that had not revamped their website for more than three years. On average, all firms surveyed tended to run their websites for two to three years before considering a re-design.
A quarter of all respondents report taking a formal approach to managing content on their website, with 25% (small, medium and large firms) using a content calendar to schedule regular updates, whilst the majority (66%) have yet to put this structure in place. When asked about the most popular content on their website, lawyer biographies are the most visited pages (85% of respondents), followed by information about practice area/sector expertise (52%) and thought leadership articles, case histories, etc. (50%).
The popularity of such content helps to explain why respondents also ranked online legal directories (61% 'very' and 'somewhat' effective) as the third most effective lead generation tactic, behind their website (74%) and Search Engine Optimisation (SEO, 62%). Adding relevant content about their lawyers, market expertise and thought leadership to online directories provides firms with further SEO benefits beyond their own website and helps to surface their content to a wider online audience to help prove credibility and generate new leads.
Continue reading here.
Hat tip to the Lawyerist blog.
From Tech News Daily:
Students may no longer enjoy the luxury of slacking off in privacy because of new electronic textbooks that report their study habits.
Teachers can track the time spent reading e-textbooks and see the notes or highlights made by students through the new service offered by CourseSmart Analytics. Three U.S. universities and colleges have signed on to test the e-textbook service before it becomes widely available in 2013 — a way to identify students who need help and gauge the e-textbooks that hold student interest.
Monday, November 19, 2012
The LSAC website has the numbers which show the total number of test-takers last month was 37,480 compared with 45,169 in October 2011, a 16.4% drop. It's the lowest number for that month in more than 10 years.
Click here to see a table from the LSAC website showing the total number of annual LSAT test-takers for each from 1987 to the present.
The blog Attorney@Work has started a new 3-part series on advice to first year law students. In the first installment, Goodwin Procter's director of professional development Scott Westfahl talks about the need for students to build their "technical" and legal skills.
Here are specific things Westfahl says associates can do to develop their legal and technical skills.
- Seek out evaluations. Young attorneys need to pay attention, ask questions and be proactive about seeking out feedback on their work. Don’t wait for your formal evaluation to see how you’re performing or even for a senior associate or a partner to offer their assessment more informally. Be direct and ask them what you’re doing right and what you need to improve. In the 1980s New York City Mayor Ed Koch constantly asked his constituency a question that became his slogan: “How’m I doin’?” Using your own voice and line of inquiry, you should be asking the same thing.
- The big picture is everything. Show interest in the client and the legal problem beyond the narrow scope of the assignment you’ve been given. That way, when there’s the opportunity to talk to the senior associate or partner with whom you’re working, you can engage him or her. “Get more context about the substantive area of law and how it applies to the clients’ problems,” Westfahl says. “Now that you’ve gone beyond legal doctrinal study in law school, you’re applying that doctrine and you want to understand the broader context.”
- Stay ahead of the game. Once you gain this context, you need to anticipate what’s coming next in a case or matter. “Partners often say, ‘I look for the associate who tries to think two steps ahead,’” Westfahls says. “’They don’t always get it right but I want them to try to anticipate what I need and what the clients need, and I really appreciate that.’” It’s these associates, he adds, who get more of the coaching and mentoring time because the partners feel it’s worth it. And the associates’ development of technical skills is accelerated in that kind of learning environment.
Continue reading here.
In 2010, the Supreme Court decided to stop permitting attorneys and other visitors from entering through the front door. Instead everyone would have to enter through a side door. Justice Breyer (and Justice Ginsburg concurring) issued a statement voicing disappointment with the decision.
Justice Breyer explained the original architectural plan for the building: “[Architect Cass] Gilbert’s solution was to design an entrance that, in the words of architect and lawyer Paul Byard, “emphasiz[ed] the processional progress toward justice reenacted daily in [the Court’s] premises.”
Further, “To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.” You can read more here.
Sunday, November 18, 2012
There are two types of reflective thinking. With the first type, the learner reflects on the results of a process the thinker has undertaken. For example, after solving a legal problem, the problem solver should evaluate whether the result was the best one for the client. Similarly, after having written a brief, the writer should evaluate whether the brief is substantively correct and whether it is convincing. The second type of reflective thinking is metacognitive--thinking about thinking. With this type of reflection the thinker evaluates the process used to reach a result. For example, in solving a problem, did I employ an effective and efficient process to solve that problem? Likewise, in doing legal research, the researcher should consider not only whether the result was correct, but whether the process employed in reaching that result was effective and efficient.
Ann Davis Shields recently proposed a great exercise to help students develop their metacognitive reflection skills on the LRWPROF-L listserve (a listserve for legal writing professors). She suggests an exercise in which the students write a letter of recommendation for themselves. Such an exercise would be a good method to help the students think about their thinking process.
Thanks to An Associate's Mind for this one; the results of a survey administered by the Alabama State Bar that asked law grads from the class of 2011 to identify how long their job search took, how they found a job, where they landed, their starting salary and the amount of educational debt they accumulated while in law school. While the response rate was only 34% and salaries and employer size reflect the fact that Alabama is not a major legal market like NYC, DC or LA, the results still provide some insight into the economic value of a law degree circa 2012.
The median starting salary was mid-$40k and of those who went into private practice, the vast majority went to work for small firms consisting of 2 to 5 lawyers. Forty-five percent of those who responded to the survey graduated with educational debt somewhere between $100k and $250k (for one outlier).
In terms of the job search itself, most of the grads found employment in a relatively short time after the bar results were posted (which is data that might help allay the anxieties of future 3L's who are freaked out that they don't have jobs at the time they graduate). And despite the prevalence of social media in the lives of today's students, the vast majority found it pretty worthless when it came to finding a job. Most found a job the old fashion way through their career services office or via face-to-face networking.
From the Detroit News:
A federal appeals court has thrown out Michigan's voter-approved ban on affirmative action in college admissions and public hiring.
The court ruled the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents, who would have to mount their own long, expensive campaign to protect affirmative action.
The Sixth U.S. Circuit Court of Appeals in Cincinnati said Thursday that the burden undermines a federal right that all citizens "have equal access to the tools of political change."
Based on reading just the news stories, I think it problematic that the Sixth Circuit’s reasoning will survive the Supreme Court’s scrutiny
Saturday, November 17, 2012
This is a law review student comment by Penn. State. 3L Christopher Polchin and is available at 117 Penn St. L. Rev. 201 (2012). Here's the abstract:
The difficult legal job market has brought attention to the reporting practices of law schools regarding their graduates' employment data. Allegations have emerged that this employment data is highly misleading. This Comment outlines the nature of the law school reporting problem and the competitive environment that gave rise to it. In addition, this Comment examines possible solutions to the data problem, particularly the availability of civil remedies in tort for aggrieved students. Finally, this Comment addresses multiple alternatives that would provide increased clarity in law schools' employment data.
Almost all law schools solicit outside reviewers to evaluate the scholarly work of faculty members up for promotion or tenure or sometimes even for retention. A recent article in the Chronicle of Education questions the value of these letters. It notes that almost all the letters are positive, even effusive. I particularly liked this paragraph:
And they write so well and so cogently. Today I have read the expressions "highly commendable," "groundbreaking," "impeccably rigorous," "carefully designed," and "recognized nationally"—all phrases I wish I could think of when I am the writer. Instead, I come up with "doing good work," "interesting," and "innovative." At least I didn't say "cool."
I usually write a couple of these letters each year and am guilty of using these terms. I want to be honest. Yet, I am hesitant to be overly critical and possible help destroy someone’s career.
Not all letters are effusive. Over the year I have seen younger colleagues having to dispute letters written by cranky or even ignorant outside reviewers. Sometimes “inside” reviewers also can be unfair.
My solution: Hire only people whom you think will succeed and mentor then so that they do succeed. As a result, you will encounter fewer difficult decisions down the road. Your knowledge of your candidate will determine how you evaluate the reviews.
Friday, November 16, 2012
In the case of Belli v. Hedden Enterprises (Westlaw subscription required) currently pending before a Florida federal district court, the plaintiff's attorney sought to file a motion in excess of the court's 25 page limit. Before the court had a chance to rule, the attorney filed his 29 page brief anyway, something that did not sit well with Judge Steven D. Merryday. Accordingly, Judge Merryday denied the plaintiff's motion in a published order that included a passage from the offending brief which the judge redlined to show the attorney how to edit his writing to make it more concise (and thus meet the court's page limit rule). Judge Merryday then referred plaintiff's counsel to Bryan Garner's book, the Elements of Legal Style, for further help with his writing.
Here's full text of Judge Merryday's order:
On August 3, 2012, the plaintiffs moved (Doc. 22) for leave to submit a motion that exceeds the page limit. The motion states, “The complex factual and legal issues involved[ ] make it difficult to meet the page limitation of twenty-five [ ] pages.” Two hours later and without leave, the plaintiffs submitted (Doc. 23) a twenty-nine-page motion. Based on the mistaken premise that this FLSA collective action presents atypically complex issues, the motion to exceed the page limit (Doc. 22) is DENIED. The motion for conditional collective status (Doc. 23) is STRICKEN.A review of the proposed, twenty-nine-page motion's commencement confirms that a modicum of informed editorial revision easily reduces the motion to twenty-five pages without a reduction in substance. Compare this:Plaintiffs
[move] (1)[to] conditionally certify , ZACHARY BELLI, BENJAMIN PETERSON, ERIC KINSLEY, and LARRY JOHNSON, (hereinafter referred to as “Plaintiffs”), individually and on behalf of all others similarly situated (“Class members”), by and through the undersigned counsel and pursuant to the Fair Labor Standards Act of 1938, (the “FLSA”), 29 U.S.C. § 216(b) files this motion seeking an order this case as a collective class action; (2)[to] requir[e]ing the Defendant ing to produce and disclose , HEDDEN ENTERPRISES, INC. d/b/a INFINITY TECHNOLOGY SOLUTIONS (hereinafter “Defendant”), the names[,] all of addresses [,] and telephone numbers of the [each] potential and last known [c]lass C [m]ember M ; and (3)[to] authoriz[e] s so that notice may be implemented notice ing [of this action to each] similarly situated person by U.S. First Class mail to all employed by Defendant within s three the past years[.] (3) to inform them of the pendency of this suit and to inform them of their right to opt-in to this lawsuit. In support of this Motion, Plaintiffs sets forth the following facts and provides this Court with a Memorandum of Law in support of the Motion, and asserts as follows:To this:Plaintiffs move (1) to conditionally certify a collective action; (2) to require the Defendant to produce the name, address, and telephone number of each potential class member; and (3) to authorize notice of this action to each similarly situated person employed by Defendant within three years.Concentrating on the elimination of redundancy, verbosity, and legalism (see, e.g., Bryan A. Garner, The Elements of Legal Style (2d ed.2002)), the plaintiffs may submit a twenty-five-page motion on or before August 15, 2012.
Big tip of the hat to Above the Law.
I have written a book called The Vanishing American Lawyer. My premise is not that too few people have a legal education. I say, instead, that what people now do with legal training is changing rapidly and likely will continue to become more diverse. That leaves me suggesting that there is little left to the general concept of being a lawyer.
Yet people still talk about lawyers, and the question of what it means to be a lawyer is especially timely in light of current American Bar Association efforts to revise the standards by which American law schools are accredited. That ABA project, in turn, must necessarily begin-at least implicitly-with the question of what kind of people law schools are charged with producing. That is the question I hope to address in this article; and my answer will be that the products of today's and tomorrow's legal education will need to be different than those that professors have trained up to now.
What is Happening to Law Practice That Will Change What It Means To Be a Lawyer?
The traditional working definition of a lawyer has been someone licensed to engage in the “practice of law.” But that definition is circular; it presupposes that we know what it means to practice law. The practice of law, in turn, has been said to consist of applying the whole body of law to a specific client's question or problem. That definition might seem broad enough to let the idea of being a lawyer remain constant. But changes from globalization, to the way clients get information, to the skills needed to perform many legal tasks foreshadow significant changes in what lawyers will actually do over the next twenty years and beyond.
On this date [Nov. 15] in 1882, Felix Frankfurter was born in Vienna, Austria. (Hat tip: Brad Snyder.) Twelve years later, he and his family emigrated to New York City. Young Felix soon learned English. He excelled in school, read voraciously, hung out at Cooper Union, graduated from City College, graduated from Harvard Law School, became a lawyer, served as a federal prosecutor and in government offices in Washington, joined the Harvard Law School faculty, taught thousands, became a leading American legal academic, wrote widely for law specialists and for the general public, helped found the American Civil Liberties Union, advised and assisted numerous political candidates and public officials….
In June 1935, U.S. Treasury Department official Robert H. Jackson met Professor Frankfurter for the first time. They were participating in a White House meeting about national tax policy. Frankfurter, an active presidential advisor, also was President Franklin D. Roosevelt’s houseguest.
That Frankfurter-Jackson acquaintance developed, through continuing contacts and work together, into a deep friendship. In January 1939, Jackson and others aggressively, successfully urged President Roosevelt to nominate Frankfurter to succeed Justice Benjamin Cardozo—who in 1919 had officiated at Frankfurter’s marriage to Marion Denman—on the Supreme Court of the United States.
In summer 1941, FDR nominated Attorney General Jackson to the Supreme Court. He was confirmed, joining Frankfurter on the bench for the entirety of Jackson’s judicial career.
You can read more at the Jackson List