Thursday, January 31, 2013

National media pick up on collapsing law schools story

You've probably already seen the New York Times story that came out yesterday, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut.  Interspersed are quotes like this:

“We are going through a revolution in law with a time bomb on our admissions books,” said William D. Henderson, a professor of law at Indiana University, who has written extensively on the issue. “Thirty years ago if you were looking to get on the escalator to upward mobility, you went to business or law school. Today, the law school escalator is broken.”

But you may not have yet seen a similar story running in The Atlantic called Law School Applications Are Collapsing (As They Should Be).  It's chock full of charts. graphs and data supporting the point that law schools are no longer immune from the forces that have brought down the rest of the economy since the great recession began and now the chickens have come home to roost.  Check it out.

There's also this related story running in the February issue of The Economist called Guilty as charged: Cheaper legal education and more liberal rules would benefit America’s lawyers—and their clientsHere's the relevant quote from that article:

During the decade before the economic crisis, spending on legal services in America grew twice as fast as inflation. The best lawyers made skyscrapers-full of money, tempting ever more students to pile into law schools. But most law graduates never get a big-firm job. Many of them instead become the kind of nuisance-lawsuit filer that makes the tort system a costly nightmare. According to a study in 2006, America has more lawyers per person of its population than any of 29 countries studied (except Greece), and it spends two to three times as much on its tort system, as a percentage of GDP, as other big economies (except Italy, where things are nearly as bad).

There are many reasons for this. One is the extortionate costs of a legal education. There is just one path for a lawyer in most American states: a four-year undergraduate degree in some unrelated subject, then a three-year law degree at one of 200 law schools accredited by the American Bar Association and an expensive preparation for the bar exam. This leaves today’s average law-school graduate with $100,000 of debt on top of undergraduate debts. Law-school debt means that many cannot afford to go into government or non-profit work, and that they have to work fearsomely hard.

You can continue reading at The Economist here.


January 31, 2013 | Permalink | Comments (0)

A New ETL Portfolio: Health and Elder Law Medical Legal Partnership

The practice of law is becoming more interdisciplinary, meaning that lawyers need knowledge of other professional areas, such as corporations, construction, and medicine.  When I was in practice, we had a major case concerning a coal mine disaster in Western Kentucky.  The lawyers on the case had to become knowledgeable about coal mine safety law, coal mines, and practice before a federal agency.  We even visited the mine where the disaster had occurred to help us understand the case.

Professors JoNel Newman and Melissa Swain have developed a clinical course at the University of Miami, which integrates the students into the health care system.  They have posted a portfolio on the Educating Tomorrow's Lawyers Website, which discusses the clinic.

They introduce their clinic:

"Law schools have traditionally failed to adequately prepare graduates to assume their professional role. Our innovative, interdisciplinary, medical-legal course rectifies this by fully immersing law students in their role as advocates for under-served individuals and populations. Our students develop core competencies through repetitive practice and experience. They also forge their professional identity and develop ethical judgment through these experiences and the contrasting professional identities they encounter and explore in the medical field."

They also describe the clinic in more detail:

"Since 2005, the Health and Elder Law Clinic has been an in-house live client clinical course at the University of Miami Law School, offered to second and third year law students. The clinic is a Medical Legal Partnership (MLP) with the University of Miami Miller School of Medicine, providing legal services to patients in the HIV and other Clinics, as well as the VA Hospital. The high volume 'teaching hospital' model integrates legal assistance as a vital component of solving the health problems of vulnerable populations. The law students become members of the healthcare team and assist patients with legal issues, such as disability, public benefits, advance directives, immigration relief, and unhealthy housing conditions. We provide hands-on, multidisciplinary experience designed to make law students practice-ready. Law student clinicians are paired with medical residents in an interdisciplinary enterprise that assesses and meets the medical and legal needs of patient-clients. The medical and legal clinicians are cross-trained in each others’ disciplines to the extent needed to engage in the joint clinical practice and conduct the client/patient intake/encounter together. Students participating in this experiential 'teaching hospital' will be prepared to begin their journey as lifetime legal learners. From the first day, they begin their practice with multiple real clients in real case situations, making strategic decisions under pressure."


There is much more information in the portfolio here.

(Scott Fruehwald)

January 31, 2013 | Permalink | Comments (1)

Another reminder to 1Ls that following instructions matters

In connection with the legal research and writing course I teach, I'm often looking for real-life examples from practice that illustrate the consequences of failing to comply with what students sometimes perceive as overly-technical rules on page length, fonts, citation form and the like.  Well, here's an example that should make their collective hair stand on end and turn white; a law grad was denied bar admission for failing to put down her pen after time was called on the bar exam. According to witnesses interviewed by the Kentucky bar officials who conducted the  investigation, the student in question continued to write for about 60 seconds after time was up.  That, and then lying about it, was enough to keep her from gaining admission to the bar.

From the National Law Journal:

The Ohio Supreme Court has refused bar admission to a graduate who witnesses accused of continuing to write down answers to the bar examination after time was called.

In a January 29 decision, the court denied admission to Jasmine Parker, a 2011 graduate of Northern Kentucky University Chase College of Law who sat for the Ohio exam in July 2011. The court found that Parker lacked the character and fitness to become licensed, but said she could reapply in February.

The decision followed an investigation by the Ohio Supreme Court Board of Commissioners on Character and Fitness. The panel reported accusations by two test-takers that they had seen Parker continue to answer three sets of questions on two separate days after test proctors announced that time was up.

One said that Parker continued to write for up to 60 seconds after the call; another that she had continued long enough to complete two lines of writing on her answer sheet. Both witnesses said they also had seen Parker continue to answer additional questions very briefly after time was called.

As a result of the investigation, the Ohio Board of Bar Examiners reviewed Parker's answers to four essay questions and awarded her zero points for the question with the highest-point value. Even so, she passed the exam.

. . . .

The Ohio Supreme Court, in an unsigned opinion, said it had considered Parker's response to the allegations of cheating. When initially confronted, she adamantly denied the allegations and said that her accusers were lying, according to a letter to bar examiners from the Ohio director of admissions. She said the accusations were malicious, false and unfounded, according to the director's letter.

However, during hearings that followed, she said that she didn't recall writing beyond the allotted time but said it was possible that she had done so.

Her conduct during the exam and her response to the investigation warranted rejecting her bar application, the court found. However, it also noted her regret.

"In light of Parker's sincere remorse and her maturation as a result of this experience, we permit Parker to reapply for admission to the bar on or after February 1, 2013," the justices wrote.


January 31, 2013 | Permalink | Comments (0)

More on Washington & Lee's Third-Year Program

I am sure that most of you are aware of Professor William Henderson's evaluation of Washington & Lee's third-year experiential program as highly successful.  The story has been featured throughout the legal blogesphere, and the ABA Journal has picked up on this very important story. (here)

Three questions remain.  How did W & L develop their program?  What is their program?  Why is it working so well?

The answer to the first question (How did W & L develop their program) is in this article: Reforming the Third Year of Law School by Lyman Johnson, Robert T. Danforth, and David Millon.

A detail answer to what is the substance of their program appears here: Litigation and Transactional Immersions by James Moliterno.

The answer to why the program is working so well requires a book by itself.  To give a short answer, let me quote from a recent book on learning, How Learning Works: 7 Research-Based Principles for Smart Teaching by Susan Ambose et. al. (p. 5):  "Students must develop not only the component skills and knowledge necessary to perform complex tasks, they must also practice combining them and integrating them to develop greater fluency and automaticity.  Finally, students must learn when and how to apply the skills and knowledge they learn."  In other words, not only do students need doctrinal knowledge, they need to be able to apply that knowledge to concrete situations.  Traditional law school teaching methods have done a good job of teaching doctrinal knowledge, but, for the most part, law schools have failed to teach students how to apply their knowledge to solving problems.  This last part is what the Washington & Lee program has accomplished so well.

This is what James Moliterno has said about the Washington & Lee program: "Experiential education is not, as some would belittle it, merely skills teaching. Instead, it is the primary vehicle for professional enculturation and a valuable vehicle for teaching law and theory. Learning by doing is more than mere activity-based exercises. Learning by doing is a role transition, in this instance from student to lawyer. Guided activities in role allow students to test and adopt the professional role, with the guidance of an expert mentor and teacher."

Update: Professor David Millon of Washington and Lee has sent me the following comment: "I would add to Jim's important comment at the end of your piece, about professionalism enculturation, that our efforts to teach lawyering skills are also designed to give the students a 'tool kit' that they can use in their practica and clinics.  The point is to help them begin to learn law and think about it and apply it the way lawyers do (rather than the way law students do), which requires introduction to the basic skills that lawyers use in their professional lives.  No one at W&L thinks that our efforts at skills instruction— which are extensive— will somehow be sufficient to allow our graduates truly 'to hit the ground running.'  Even so, and ironically, the claim could be made that it is not until the third year that we really begin to teach our students to 'think like lawyers.'"

(Scott Fruehwald)

January 31, 2013 | Permalink | Comments (0)

Why Are Jobs Listed When They Are Already Filled?

It happens all the time. The employer has filled the position, but Human Resources urges the employer to run ads anyway. Why? If the employer can point to a stack of applications, the employer has a better chance of defending against charges of discrimination. The employer has worked through the stack and found the most suitable candidate. From the Wall Street Journal, here’s a three minute video supplying the explanation.


January 31, 2013 | Permalink | Comments (0)

Wednesday, January 30, 2013

Does "let's do lunch" optimize negotiation outcomes?

According to some new research posted on the Harvard Busines Review blog, the answer is "yes."

Should You Eat While You Negotiate?

Across cultures, dining together is a common part of the process of reaching negotiated agreements. In Russia and Japan, important business dealings are conducted almost exclusively while dining and drinking and in the U.S., many negotiations begin with "Let's do lunch." But are business deals actually improved when people discuss important matters over a meal?

To explore this question, I conducted two experiments. The first compared negotiations that took place over a meal in restaurants to negotiations in conference rooms, without any food to eat. In the second, negotiations were conducted with or without a meal in a business conference room. In the experiments, 132 MBA students negotiated a complex joint venture agreement between two companies. In the simulation, a provisional deal is in place, but a variety of terms must still be considered and agreed upon to maximize profits for their companies. The negotiators must determine how to handle each term of the deal. As is typical in many negotiations, in order to maximize their profits, the negotiators must share information and work together with the other side to learn where the most value can be created.

The greatest possible profits were created by the parties who were able to discern the other side's preferences and then work collectively to discover the profit maximizing outcomes for the joint venture, rather than merely considering their own company's profits. In the simulation, this can only be accomplished when the negotiators make trade-offs and then compensate each other from the net gains to the joint venture. The maximum value that can be created jointly for both companies is $75 million. Deals can be struck at lower combined values, down to as low as $38 million. To explore how eating together affected negotiation outcomes, I considered the total value created by both companies.

The students who ate together while negotiating — either at a restaurant or over food brought into a business conference room — created significantly increased profits compared to those who negotiated without dining. (Individuals who negotiated in restaurants created 12% greater profits and those who negotiated over food in a conference room created 11% greater profits.) This suggests that eating while deciding important matters offers profitable, measurable benefits through mutually productive discussions.

. . . .

I expected that both sharing a meal and collaborating on an activity would increase trust between the participants — and perhaps that the cultural history attached to eating together would increase trust more than sharing other activities — but when I surveyed participants in both studies, the trust levels they reported did not increase.

Why else might eating together improve the outcome of negotiations? There may be biological factors at work. When the negotiators in my first two studies ate, they immediately increased their glucose levels. Research has shown that the consumption of glucose enhances complex brain activities, bolstering self-control and regulating prejudice and aggressive behaviors. Other research
has shown that unconscious mimicking behaviors of others leads to increased pro-social behaviors; when individuals eat together they enact the same movements. This unconscious mimicking of each other may induce positive feelings towards both the other party and the matter under discussion.

Continue reading here.


January 30, 2013 | Permalink | Comments (0)

Be a Positive Professional: Five Ways

“But frustration, negativity and the daily grind can bring even the best Russell Crowe look-like to tears. So how can you reframe your professional life and zing your brain back into peak performance?” Consultant and criminal defense attorney Ryan Sullivan suggests five ways to bring positive thinking and a positive attitude to your professional life (greatly abridged from Attorney at Work):

1. Rekindle an old romance. Still harboring fantasies about being a scientist? Playing the lead in a Broadway musical? Was Freudian analysis your thing in college psych class? Whatever it is, dig around and find out how to put some aspect of it into your practice today

2. Don’t just strategize, empathize. If another [opposing attorney’s] antics are driving you bananas, pause a moment to think why this person might be making those choices.

3. Don’t pooh-pooh the positive. Ignoring the positive is like walking over $100 bills without bending down to pick them up. Quit pooh-poohing and pick up the money, people!

4. Pass on the show-and-tell. But beware the temptation to unnecessarily unload burdens on your fellow professionals. Be a source of encouragement to others in the workplace, not a toxic dump.

5. Make Audrey Hepburn proud Make like Audrey and be a persuasive, intelligent and charming advocate. There’s nothing more effective than showing genuine, competent warmth towards those around you.


January 30, 2013 | Permalink | Comments (0)

Tuesday, January 29, 2013

Even More On Professional Identity

On Monday, I posted about an article from a group of professors at St. Thomas School of Law, which discussed how St. Thomas taught professional identity to its students.  Today, I am discussing an article that tries to understand how the problem of professional identity developed within law schools and the legal profession and argues that there can be no effective law school reform without changing the fundamental understanding of the lawyer's role currently taught in law schools.

Making Good Lawyers by Eli Wald and Russell G. Pierce.

Abstract: Today, the criticism of law schools has become an industry. Detractors argue that legal education fails to effectively prepare students for the practice of law, that it is too theoretical and detached from the profession, that it dehumanizes and alienates students, too expensive and inapt in helping students develop a sense of professional identity, professional values, and professionalism. In this sea of criticisms it is hard to see the forest from the trees. “There is so much wrong with legal education today,” writes one commentator, “that it is hard to know where to begin.”

This article argues that any reform agenda will fall short if it does not start by recognizing the dominant influence of the culture of autonomous self-interest in legal education. Law schools engage in a project of professional formation and instill a very particular brand of professional identity. They educate students to become autonomously self-interested lawyers who see their clients and themselves as pursuing self-interest as atomistic actors. As a result, they understand that their primary role is to serve as neutral partisans who promote the narrow self-interest of clients without regard to the interests of their families, neighbors, colleagues, or communities and to the exclusion of counseling clients on the implications of those interests. They view as marginal their roles as an officer of the legal system and as a public citizen and accordingly place a low priority on traditional professional values, such as the commitment to the public good, that conflict with their primary allegiance to autonomous self-interest.

In this work of professional formation, law schools are reflecting the values and commitments of the autonomously self-interested culture that is dominant in the legal profession. Therefore, even if law schools sought to form a professional identity outside of the mold of autonomous self-interest, such a commitment would require much more than curricular reform. It would, at minimum, require the construction of a persuasive alternative understanding of the lawyer’s role.

The article seeks to offer such an understanding grounded in a relational perspective on lawyers and clients. Part I offers workable definitions of professionalism and professional identity that enable an informed discussion of the formation of professional identity in and by law schools. Part II explores what and how legal education teaches students showing that both institutionally (at the law school level) and individually (at the law professor level) legal education is proactively engaged in the formation of a professional identity of autonomous self-interest. Part II further explains that its dominance in legal education notwithstanding, autonomous self-interest is but one, often unpersuasive, account of professionalism and professional identity. Part III turns to the competing vision of relationally self-interested professionalism and professional identity and develops an outline for legal education grounded in these conceptions. Because legal education reflects a deep commitment to the dominant culture of autonomous self-interest, it is unlikely that reform proposals that are inconsistent with that culture are likely to succeed in the near future. Yet proposing an alternative account of professional identity that exposes the assumptions of the dominant culture, explains their limitations, and develops a more persuasive understanding is a necessary step toward providing a workable framework for reformers committed to promoting professional values in the long term.

(Scott Fruehwald)

January 29, 2013 | Permalink | Comments (0)

Legal writing guru Ross Guberman shares secret for spotting the passive voice in your documents

Here's a cool tip for spotting and correcting the passive voice in your legal documents from Ross Guberman, President of Legal Writing Pro and author of the best selling Point Made: How to Write Like the Nation’s Top Advocates

It's part of a blog post Ross has published in which he explains how to tell the difference between a true passive voice construction and phrasings that sound like it but aren't.  The entire post is worth reading but towards the end he offers the following techie tip for Word users that will help you spot and correct the "real" passive voice more easily.

So what’s the best way to separate “real” passive constructions from fake ones?

The best clues are the combination of a conjugated form of to be or to get or to have with a past participle. If finding that combination seems like a pain, let me share a secret:

You can configure Microsoft Word to underline sentences containing passive constructions. Just go to Spelling and Grammar, Options, Settings, and then, under “Style” settings, click the “Passive Sentences” box.


January 29, 2013 | Permalink | Comments (0)

Washington University School of Law seeks director of non-profit organizations law clinic

Here are the details:


Director, Nonprofit Organizations Law Clinic

     WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications for the position of Director of the Nonprofit Organizations Law Clinic (previously known as the Business Formation Clinic), one of fifteen law clinic and externship courses offered by the Law School (see

     The Clinic, through its second and third-year law students, provides free legal assistance on entity formation and other transactional matters to individuals and organizations. Clinic students typically assist clients in incorporating, obtaining tax exempt status, and addressing a wide range of operational and regulatory issues. The Nonprofit Organizations Clinic is taught in conjunction with the Intellectual Property Clinic, offering students a unique opportunity to also learn about the patent, copyright, and trademark issues confronting organizations. Often clients present both nonprofit and intellectual property issues.

     The Director is expected to oversee all aspects of the Clinic, including the teaching of students (through one-on-one tutorials and weekly seminars), supervision of and responsibility for student casework, identification and selection of clients, and administration of the office and staff. There may also be an opportunity to teach a non-clinical course in the Law School.

     Candidates should have significant experience practicing transactional law (preferably including the representation of nonprofit entities), outstanding legal research and writing skills, and promise as a teacher and mentor for law students. Candidates must be eligible to practice law in Missouri (i.e., must be a member of the Missouri bar or eligible for admission as a law teacher without examination pursuant to Missouri Supreme Court Rule 13.06). Salary is commensurate with experience.

     Applicants should submit a cover letter, resume, law school transcript, and list of references. 

     Washington University School of Law is committed to diversity and encourages applications from racial and ethnic groups, women, persons with disabilities, and other under-represented groups.

     Submit application to: Professor Robert Kuehn, Associate Dean for Clinical Programs, Washington University School of Law, One Brookings Drive, Campus Box 1120, St. Louis, MO 63130-4899; [email protected]. For fullest consideration, apply by March 1st.


January 29, 2013 | Permalink | Comments (0)

Legal Education Reform Works! The Success Story at Washington & Lee.

This blog has often used the third-year experiential program at Washington & Lee School of Law as a model for legal education reform.  Now, a detailed study by Professor William Henderson on The Legal Whiteboard demonstrates that Washington & Lee's program has delivered "a significantly better education to 3L students."

Professor Henderson writes, "Here it is in a nutshell. There is empirical evidence that Washington & Lee’s experiential 3L curriculum is delivering a significantly better education to 3L students—significantly better than prior graduating classes at W&L, and significantly better than W&L’s primary competitors. Moreover, at a time when total law school applicants are on the decline, W&L’s getting more than its historical share of applicants and getting a much higher yield. When many schools are worried about revenues to survive next year and the year after, W&L is worried about creating the bandwidth needed to educate the surplus of students who enrolled in the fall of 2012, and the backlog of applicants that the school deferred to the fall of 2013."

He continues, "there is substantial evidence that the W&L 3L program delivers comparative value.  The evidence is based on several years' worth of data from the Law School Survey of Student Engagement (LSSSE). I received permission from Professor James Moliterno, someone who took a leadership role in building W&L’s third year program, to share some of the key results (each school controls access to its LSSSE data.) . . . .  

But before getting into empirical evidence, I want to put squarely on the table the most sobering finding that likely applies to virtually all of legal education. It is this: On several key LSSSE metrics, W&L has made impressive gains vis-à-vis its own historical benchmarks and its primary rival schools. . . .  Here is the bottom line:  Traditional legal education, when it is measured, does not fare very well. Yet, as W&L shows, substantial improvement is clearly possible."

Professor Henderson does have a word of caution: "But even for this leader, there remains enormous room for improvement."

He concludes, "The example of the Washington & Lee 3L experiential year ought to be a watershed for legal education. We can no longer afford to ignore data.  Through LSSSE, high quality comparative data are cheap and comprehensive.  And that information, as we have seen, can significantly improve the value of a legal education."

This is very exciting news.  As we have said numerous times on this blog, the key to survival for many law schools may be the ability to do something new that educates students better and, consequently, draws students to that law school.  The success of the Washington & Lee program supports this hypothesis.

(Scott Fruehwald)

January 29, 2013 | Permalink | Comments (0)

Different Computer Systems Give Different Word Counts

If your court or your Legal Writing class places caps on the number of words that you can place in a document, this study will be of interest. Don Cruse’s “The Supreme Court of Texas Blog” has noted that different word processing systems count words differently. The various systems have to make choices about how  to count words and phrases. For example:

  •  Phrasal adjectives: Is “summary-judgment motion” two words or three?
  • Legal citations: Is “S.W.3d” one word or two?
  • Numerals: Does a pinpoint cite to a span of pages (e.g., “123-25″) count as one word or two?
  • Record citations: Is a record citation like “4.RR.124-25″ one word or two or three or four?
  • Statutory citations: How many words is a cite to “§123.23(A)(1)(i)(a)”? Is it just one long word, or is it five very short words?

To illustrate, Cruse conducted an experiment:

I lifted roughly a page and a half from a recent appellate brief. I put this text into its own clean word-processing file and made a few tweaks to the typography.

Survey says…

Here are the word counts from four word processors I had at my fingertips:

Word processor


Word Count

Microsoft Word 2011

Mac OS X (10.8)


LibreOffice 3

Linux (Ubuntu)


Wordperfect X5

Windows (XP)



Mac OS X (10.8)


What led to the huge gap between the lowest count (Word) and the highest count (Pages)? It turns out that Pages uses an algorithm that treats an abbreviation like “4.RR.125-26″ as being four words. Yes, four. Pages sees imaginary word breaks in places that I do not.





January 29, 2013 | Permalink | Comments (0)

Monday, January 28, 2013

Total law school applications may fall to 30 year low

For as long as records have been kept, this is looking to be the lowest number of total law school applications (made worse by the fact that there are now 26 more accredited law schools than in 1983 when such records began being collected).  The National Law Journal has the story.

Avoiding law school in droves

The numbers of applicants may slump by 38 percent.

Nearly everyone in legal education expected the number of law school applicants to fall off this academic year. But they weren't prepared for this.

As of mid-January, 27,891 people had applied for seats in American Bar Association-accredited law schools. That represented a 20 percent decline since last year (and 2012 was hardly a banner year itself, as the number of applicants fell by nearly 14 percent.) If the trend holds through the final months of the admission cycle, law schools would see a 38 percent crash since their peak in 2010.

"I am surprised by the extent of the decline," said University of St. Thomas School of Law professor Jerome Organ, who has been tracking law school enrollment and economic trends. "I had anticipated a decline, but possibly a more moderate decline than the last two years."

It looks like one for the record books: Upon seeing the application figures from the Law School Admission Council (LSAC), Ohio State University Michael E. Moritz College of Law professor Deborah Jones Merritt decided to research the last time U.S. law schools had attracted such a small applicant pool. She couldn't find records before 1983, but at no time during the past 30 years had the applicant totals slipped below 60,000. (There were 175 ABA-accredited law schools during the early 1980s; there now are 201.)

. . . .

"It's become clear that there is no chance of redemption for this cycle," said Sarah Zearfoss, senior assistant dean for admissions, financial aid and career planning at the University of Michigan Law School. "The December LSAT sitting is already over and there is no reason to think that there will be a larger-than-normal February sitting."

February is the last opportunity for prospective applicants to take the Law School Admission Test in time to meet this year's application deadlines. During the December sitting, nearly 16 percent fewer people took the test compared with 2011. Merritt said that most prospective law school applicants were starting their undergraduate educations during the Great Recession, as large firms were shedding associates and even partners in shocking numbers. That turmoil shattered the perception of the legal profession as a low-risk and lucrative career path. "I would be surprised to see applications go up again, unless there are major changes in the legal industry," Merritt said.

. . . .


January 28, 2013 | Permalink | Comments (0)

Wells Fargo report shows law firm revenue was up in 2012 for AmLaw 200

In contrast to reports suggesting the halcyon days of BigLaw are gone forever, a new survey from Wells Fargo Private Banking Legal Specialty Group found, to the surprise of most, that revenue was up for the year just concluded for the AmLaw 100 and that the next tier of firms, the so-called AmLaw "Second Hundred," did even better.  The Wall Street Journal Law Blog has the story (subscription required):

2012: It Was a Very Good Year (For Law Firm Revenues)

Against all expectations, in 2012 big law firms actually had what Ol’ Blue Eyes would have called a very good year, according to a preliminary survey out from Wells Fargo Private Bank’s Legal Specialty Group.

. . . .

Law firm prospects appear to have bucked up in 2012, bringing numbers that, on average, were better than what Wells Fargo has seen in the past few years since the recession.

“This came as a complete surprise,” Mr. Grossman, national managing director for the group, told Law Blog on Monday.

Some highlights:

  • 5% increase in gross law firm revenues, compared to 2011
  • Net income was up nearly 6%
  • Profits per equity partner increased by nearly 5%

. . . .

Another interesting trend: a split between the respondents from the top 100-grossing firms as ranked by American Lawyer, compared to those a bit further down the ladder in what law wonks call the AmLaw Second Hundred.

“The AmLaw Second Hundred outperformed the First Hundred,” Mr. Grossman said, adding that usually the reverse happens.

Here’s a breakdown:

AmLaw 100 Respondents Second 100 Respondents
Average Revenue Up 4.5% Up 6.5%
Average Net Income Up 5.6% Up 6.4%
Best-Performing Firm   (by revenue) Up 17% Up 23%
Worst-Performing Firm  (by revenue) Down 4% Down 6%

However you slice it, the averages are looking up compared to the years after the recession, when demand for legal services cratered.

Continue reading here.


January 28, 2013 | Permalink | Comments (0)

Should Adjunct Faculty Have a Role in Faculty Governance?

Law schools and universities increasingly rely on adjuncts to teach courses.  And given the economy, we can expect this trend to continue, if not accelerate. After all, adjuncts come cheap, and full timers are expensive. Recently one of my colleagues suggested—only half  jokingly—that in fifteen years, our law school might have only five tenured faculty on staff. Adjuncts would perform the majority of the academic tasks.

Even if this scenario never comes to pass, we should recognize that adjuncts affect the nature of our institutions, and the nature of an institution affects how an adjunct carries out the teaching task. Have we reached the point at which adjuncts should play a role in shaping the institutions in which they work?

A committee of the American Association of University Professors (AAUP) says yes.  You can read a copy of its report, “The Inclusion in Governance of Faculty Members Holding Contingent Appointments,” here.


January 28, 2013 | Permalink | Comments (0)

Sunday, January 27, 2013

More On Professional Identity

This blog has often emphasized the importance of developing law students' professional identities.  I have also stressed the need to teach professionalism and professional identity across the curriculum.

Three faculty members at the University of St. Thomas have just posted an article on SSRN concerning how their law school teaches professional identity.  This appears to be an excellent program that can serve as a model for other law schools.

Empirical Evidence that Legal Education Can Foster Student Professionalism/Professional Formation to Become an Effective Lawyer by Neil W. Hamilton, Verna Monson, and Jerry Organ.

Abstract: Legal education should move toward much more effective educational engagements to foster each student’s professional formation and thus improve each student’s ultimate effectiveness as a lawyer. Part I reviewed and analyzed the empirical evidence that convincingly points toward the importance of a law student’s or practicing lawyer’s capacities and skills of professional formation for legal employers and clients. Part II reviewed and analyzed the empirical evidence about the most effective curriculum, culture and pedagogies to foster each student’s professional formation. Part III explained the professional formation curriculum, culture and pedagogies of University of St. Thomas School of Law (the empirical evidence in Part II aided in the design of this curriculum, culture, and pedagogy). Part IV analyzed empirical data demonstrating that the UST law students experience growth in moral development and professional formation over their three years of law school in a manner different from that which might be anticipated from law school generally. The data from this study reasonably support the link between the overall UST Law educational program and the increase both student moral reasoning and ethical professional identity.

Our findings add to the research presented in Part II that education to foster professional formation must engage each student at the student’s current developmental stage. The UST Law curriculum, culture, and pedagogies reflect and incorporate the earlier research analyzed in Part II. Future studies should concern evaluating which specific elements of the curriculum, culture or pedagogies were most effective. The challenge at its core is to help each student internalize deep responsibilities both for others, especially the client, and for the student’s own development toward excellence at all the competencies that a practicing lawyer must have to fulfill his or her responsibilities for others.

(Scott Fruehwald)

January 27, 2013 | Permalink | Comments (0)

Michigan joins small but growing list of states that prohibit employers from asking for social media passwords

Michigan joins California, Illinois, Maryland and New Jersey in passing a law that prohibits employers (and schools too in this case) from asking applicants for social media passwords. The BNA Electronic Commerce & Law Report has the story (subscription required):

LANSING, Mich.—Michigan businesses and educational institutions are barred in most circumstances from asking employees, job applicants, students, or prospective students for passwords or other information that could be used to access private internet accounts under legislation (H.B. 5523 Substitute) signed Dec. 28 by Gov. Rick Snyder (R).

 A violation of the act—the firing, failure to hire or admit, or penalizing of an employee or student for refusing to grant access to a personal account—will be considered a misdemeanor punishable by a maximum fine of $1,000. An individual who is the subject of a violation may bring a civil action and recover up to $1,000 in damages, plus reasonable attorneys' fees and court costs.

 Sponsor Aric Nesbitt (R) said he introduced the legislation after constituents expressed concern about reports of employers asking for account passwords. The bill is “a way of keeping up with the times,” he told BNA Dec. 19.

An employer's request for a job applicant's Facebook password is “the same as asking for an individual's P.O. box key and rummaging through their mail, or going through their living room to look at their personal picture albums,” Nesbitt said. Sites such as Facebook and Twitter have privacy settings for users to restrict who can see their postings, he observed. “[W]e should respect those limits that people set,” he said.

 The measure, set to take effect immediately, does not prohibit employers or educational institutions from viewing, gaining access to, or using information about an individual that is available in the public domain. The House passed a version of the legislation in September, and it later was amended in the Senate.


January 27, 2013 | Permalink | Comments (0)

How To Defend Against A Summary Judgment Motion

From George Vetter’s book, “ Successful Civil Litigation,” quoted in Steven Stark’s book, “Writing to Win”:

  1. Demonstrate an issue of fact.
  2. Expose the invalidity of materials supporting the other side’s motion (for example, mistakes in the affidavit).
  3. Illustrate how the case hinges on something else that needs to be assessed, such as credibility.
  4. Show the moving party’s exclusive control of the facts.


January 27, 2013 | Permalink | Comments (0)

Saturday, January 26, 2013

When To Use Semicolons

From Professor Anne Enquist’s article, “The Semicolon’s Undeserved Mystique”:

It happened again last week. A student came in

for a writing conference and wanted to discuss

how she could improve her choppy, rather

unsophisticated writing style. As we looked at

several of her paragraphs, I pointed out a pair of

sentences that might be joined by a semicolon.

“Oh, I never use semicolons,” she flatly

declared, much in the same way someone might

say I don’t smoke, eat red meat, or watch reality

TV. When I asked why, her answer was equally

vague: “I just don’t use them.”

Having gotten similar responses about

semicolons from students over the years, I

commented to her that I had noticed other law

students avoiding semicolons, and usually it was

because they thought they were really difficult to

use. I mentioned that semicolons seem to have

some kind of undeserved mystique and that they

are not only simple to use but also handy to have

in one’s legal writing repertoire.

The rules are simple. (1) Use semicolons to connect sentences that are so closely related that they belong in the same sentence. (2) When your sentence has a series of  items that are too long to separate with commas or that have internal punctuation, separate the items with semicolons. You can read Professor Enquist’s article (including examples) here.


January 26, 2013 | Permalink | Comments (0)

Daytona School of Law becomes Florida Space Coast School of Law

Remember the story about the investors who wanted to start a new law school in Daytona Beach, Florida only to have their plans hit a wall when they learned that the building they planned to occupy didn't have enough, um, "space." When life hands you lemons, you make lemonade, right?  Or, in this case, when you can't open Daytona School of Law due to lack of space, you instead open Florida Space Coast School of Law.  Yup, looks like Florida's 13th law school is "all systems go!" as the astronauts like to say or "full steam ahead" as the Space Coast School of Law investors prefer to say.  From  The Daytona Times:

Attorney: Law school not coming to Daytona

A Jacksonville attorney said “plans are still full steam ahead” to start a law school, but it will not be in Daytona Beach.

. . . .

[The investors] hope to initially enroll 80 students and grow the student body to 600 as well as secure accreditation from the American Bar Association (ABA), according to the National Law Journal.

Plans also call for the school to keep costs low by focusing on attracting practicing attorneys to teach.

The school would need a license from the city to operate, and after one year, could apply to the ABA for provisional accreditation. An application for full accreditation could follow in three to five years.

Those involved say the school, which will be called the Florida Space Coast School of Law, would emphasize public service and pro bono work, and foster a cooperative, rather than competitive, atmosphere.

[The investors] believe the lower cost of education isn’t the only thing that will set them apart from Florida’s 12 other law schools. The new law school’s founders also plan to use practicing attorneys and judges as faculty.

And click here to read Elie Mystal having some fun with the new law school's name.

Hat tip to ATL.


January 26, 2013 | Permalink | Comments (0)