Tuesday, September 30, 2014
This article from the Wall Street Journal surveys several business experts and academics for tips on how to make excuses for a botched job that have a better chance of being well received by the boss. That's not to suggest anyone interviewed for this article thinks mistakes or the excuses that inevitably follow are ever a good thing. But since we all mess-up once in a while, it's good to have some well-informed advice handy for delivering the mea culpa in a manner that may minimize the damage. You can read the full WSJ column here but below are summarized some of the key points.
- Give truthful specific reasons for the mishap and show empathy for anyone who was harmed.
- Showing sincerity and sympathy for those harmed tends to increase acceptance.
- Provide a detailed, factual explanation and avoid vagueness
- Managers can avoid lame excuses by emphasizing solutions over blame dodging.
- Excuses based on circumstances outside your control are more likely to receive a positive reception - but only the first or second time you use it.
- People are more receptive to an excuse if indicated no harm was intended
- Making a preemptive excuse before you start the task can engender sympathy but again, this only works once or twice.
- The excuse must be substantial enough to match the harm done.
Continue reading the WSJ here.
Hat tip to the ABA Journal Blog.
Consumer fraud class actions filed against Chicago-Kent College of Law, DePaul University College of Law and the John Marshall Law School has been dismissed by the Illinois Appellate Court’s First District, according to The National Law Journal.
The class actions were filed by graduates of these law schools who claimed that they had been duped by the schools and their exaggerated job-placement statistics.
The decision was made by a panel of three judges. These law schools were three of 14 sued back in 2012 by alumni.
You can read more here.
From U.C. Davis:
A posting in the Wall Street Journal Law Blog focuses on "Copy-Paste Precedent," a study by Professor Brian Soucek showing that the U.S. Court of Appeals for the Second Circuit appeared to be copying and pasting the wrong legal standard into some of its unpublished opinions in immigration cases.
Soucek's paper shows that the Court repeated, word for word, a legal standard that he believes was misleading in a dozen unpublished orders involving asylum claims from 2008 to 2012 and in three additional orders this year. The standard concerns claims of asylum based upon fear of persecutions as a result of membership in a "particular social group." The language the Court used in the summary orders states that proposed groups must "exhibit a shared characteristic that is socially visible to others in the community," which could give the impression that the group members must share a trait that passing strangers could discern, an interpretation the Board of Immigration Appeals and the Second Circuit itself have recently rejected. (The Sixth Circuit cited other work by Soucek when it rejected the literal visibility standard in Umaña-Ramos v. Holder, 724 F3d 667 (6th Cir. 2013).)
You can read the Wall Street Journal’s blog entry here.
Legal Education Reform Bibliography by Gould Law Library.
Monday, September 29, 2014
Philosophers can help us learn from self-reflection:
Socrates: What is the most challenging question someone could ask me about my current approach?
Aristotle: What character virtues are most important to me and how will I express them?
Heavy questions, and reflecting on them can lead us to improve as professionals and leaders. You can learn more here from Dr. David Brendel at the Harvard Business Review blog.
Sunday, September 28, 2014
Last week, I mentioned that California's new fifteen-hour experiential requirement would have a big impact on legal education in America. This impact, of course, will mainly be on the second- and third-years of law school. The first year of law school also needs to be reformed to help students prepare for the experiential classes and for contemporary legal practice.
Doctrine and "thinking like a lawyer" have traditionally been the focus of the first year of law school, and they should continue to be important in a reformed first year. Law schools must teach students substance and methods of analysis before they can start to work in a practical setting. However, law schools need to teach doctrine and thinking like a lawyer better.
Law schools need to teach students doctrine and legal reasoning with teaching techniques in addition to the Socratic/case method. I believe that the Socratic/case method, when used properly, is an important technique for teaching law students legal reasoning. However, this method does not go far enough.
First, the teaching of legal reasoning should be more explicit and go into more detail. Many law students graduate from law school not understanding what think like a lawyer actually means. First-year professors should teach law students the sub-elements of legal reasoning, explicitly and in detail. These miniskills include rule-based reasoning (deductive reasoning), analogical reasoning, case synthesis, distinguishing cases, and policy-based reasoning. In particular, students have problems synthesizing cases. Professors need to drill students in these skills just like they drill students in case analysis.
Second, law schools need to teach statutory analysis in detail in the first year. Statutory analysis is as important (or even more important) for the contemporary lawyer as case analysis.
Third, first-year courses should teach law students how to apply doctrine to facts. This will help them remember the doctrine better and develop transfer skills for second- and third-year courses. Initially, these application exercises can be simple.
1. John walks up to an attractive woman in a bar, and he starts to talk to her. Her boyfriend then hits John in the mouth, and John is hurt. Has a tort occurred? If so, which one?
2. John walks up to an attractive woman in a bar, and he starts to talk to her. Her boyfriend takes a swing at John, but he barely misses his head. Has a tort occurred? If so, which one?
3. John is pushed into Sam by Roy accidentally. Sam is badly hurt. Can Sam sue John for an intentional tort?
4. John, 20, wants to play a joke on his grandfather, who walks with a cane. While his grandfather is taking a walk, John pulls the cane away from his grandfather. The grandfather falls and breaks his hip. Can the grandfather sue John for an intentional tort?
5. John is speeding down the road in his brand new car. He is going 20 miles over the speed limit, and he is not stopping for stop signs. He hits Mason’s car, causing him severe injury. Can Mason sue John for battery?
1. The way to answer this question is to think about all the potential torts, then see if the facts fit the elements of any of those torts. In this case, the facts constitute battery.
2. This is an assault. There was no harmful or offensive contact, but there was apprehension of harmful or offensive contact.
3. No. Intentional torts require that the conduct be intentional. John did not intentionally contact Sam.
4. Yes, this is a battery. There are two subissues here. The first is whether a joke can constitute a harmful or offensive touching. The answer is yes. The second question is whether there has to be an actual touching or can the contact be made with an object that is in contact with a person. The answer is a contact can occur by an object that is in contact with the person. You probably read a case on this in your torts casebook.
5. No. John didn’t intend to make a harmful or offensive touching with Mason. However, as we will see later, this could be negligence.
Wouldn't students remember significantly more torts doctrine if they had to answer fifty questions like the above at the end of every torts unit?
As the year goes on, the problems for students to solve would become more complicated.
Fourth, students should draft simple documents when appropriate. They could draft contract clauses after a unit on that type of clause. They could draft a simple deed or lease in property. They could draft a complaint in civil procedure. Again, students remember more when they apply their knowledge.
Finally, first-year classes should teach law students metacognitive skills. (here) They should be taught how to think about their thinking, choose strategies, how to learn properly, how to reflect, etc.
Adding the above to first-year classes would significantly improve law students ability to understand doctrine, remember doctrine, and use that doctrine. Later in the week, I will discuss how the above might be implemented.
The Startup Legal Garage course is a full year course with seminar and fieldwork components each semester.
Classroom Component: Weekly seminar addresses doctrinal issues in Intellectual Property and Corporate law. This course will orient students to the expectations of a transactional law practice and students will develop and apply lawyering skills such as transaction planning and management, client interviewing and counseling, navigating conflict of interest issues, and legal research. Students will bring redacted versions of their deals into the classroom.
Fieldwork Component: Under the close supervision of a practicing attorney, students will work with entrepreneurs in their very early stages of business planning. The Startup Legal Garage is not an external placement clinic. With the nature of startup work, the fieldwork will ebb and flow, and students will not be working on a client project at all times. Students will, however, have the opportunity across the year to work with actual clients under the supervision of seasoned attorneys. There is no substitute for the real world.
In its 2013 report, The Impact of Law School Debt on the Delivery of Legal Services, The Illinois State Bar included this appendix listing the costs to start and run a solo practice in downstate Illinois. It is based on the estimates of one practicing downstate lawyer:
Computer, Printer & Copier $800
Second-hand Desk $200
Chairs (one executive and two client) $400
Office Supplies $200
$1500 monthly salary for 6 months $9,000
Operating Expenses for 3 months $8,520
Monthly Operating Expenses
Office Space Rental $600
Internet Access $40
Legal Research (Westlaw or Lexis) $500
Malpractice Insurance $300
Office Supplies $100
Liability Insurance $50
Medical Insurance (covering attorney and family) $700
Practice Management Software $60
ISBA Membership for Atty in 3d Year Admission $6
Total Monthly Expenses $2,846
Total Yearly Expenses $34,152
Thought you might be interested. I’m sure the numbers would be much higher in other locations.
Saturday, September 27, 2014
Though this article from the New York Post describes the Staten Island court's ruling as "groundbreaking," it isn't the first court to authorize service of process via social media. A few foreign courts have permitted the practice in recent years and a quick Google search reveals that a handful of domestic courts have done so as well with some jurisdictions even considering a rule change to formalize the practice (here, here, here contra here). The New York case involved a party who was seeking to cancel his child support payments (the "child" had turned 21) but was unable to locate his ex-wife except via Facebook. The court allowed him to serve papers that way, despite the lack of a physical address, because it found that in-person service of process under the circumstances was "impracticable." Check out the full story here via the New York Post.
Friday, September 26, 2014
This post describes a new article by Professor Chris Birkel (Charlotte) called The Growth And Importance Of Outsourced E-Discovery: Implications For Big Law And Legal Education and available at 38 J. Legal Prof. 231 (2014) and here on SSRN. The abstract is toward the bottom.
Professor Birkel traces the history and growth of the e-discovery industry including an overview of different service provider models including the use of in-house lawyers, outsourcing, specialized e-discovery firms, etc. Next, Professor Birkel profiles a former law firm associate who developed a highly successful e-discovery business. Toward the end of the article, Professor Birkel suggests that due to a contracting legal job market, some law schools consider training 3L students to be more entrepreneurial so they are better able to "make a job" rather than "find a job." Michigan State University School of Law is already doing something similar to that with its ReInvent Law Lab (here and here). For balance, also check out Professor Campos' criticism of this idea that law schools can or should train lawyers as entrepreneurs since most such ventures fail even in good economic times.
Now for that abstract I promised:
The legal market is rife with inefficiencies at all levels of practice. Perhaps the most fundamental problems in the marketplace for legal services are informational asymmetries. Information important for lawsuits may not be available for analysis, sometimes by design of the parties involved, and that creates friction in the market. Clients demand greater efficiencies at lower costs, as legal services have become a commodity managers must buy. The creation of E-Discovery was itself an effort to further the efficient operation of the legal services market but that efficiency came at increased cost due to the dramatic increase in documents for review. Efforts to tackle the problem of cost have pushed the providers of E-Discovery to seek out objective metrics to measure value-added to gain advantage over rival firms.
This paper first examines changes in the macroeconomic conditions of the legal services market that predated and helped foster the E-Discovery boom. This paper will examine the concurrent changes to the traditional Big Law firm that created the market for E-Discovery. Next this paper will explore the history and growth of the E-Discovery market. Further, this paper will argue the record of growth along many variables of business success indicates the appetite of the market and the likely continued importance of E-Discovery and other non-traditional avenues of employment within the legal field.
This paper will examine the infancy and growth of one firm in this market space: NEXTRA. We will examine this growth through the lens of so-called Moneyball principles advocated by NEXTRA CEO, Bob Rowe. In Moneyball author Michael Lewis explores how Billy Beane, the Oakland Athletics’ General Manager, used inefficiencies in the marketplace for baseball players to his advantage. The lessons Beane borrowed from other industries to gain advantage over opposing general managers in baseball can also be implemented in legal education and legal practice.
Finally, this paper will suggest legal education refocus some of the 3L curriculum on entrepreneurial opportunities within the law. Evidence suggests traditional legal employment will not support the number of law school graduates currently entering the market. Meanwhile fiscal pressures mount on law schools due to declining overall enrollment. These twin pressures should lead law schools to change focus from “getting a job” to “making a job”.
From Bloomberg BNA Highlights:
Massachusetts hopes to influence law school curricula and better prepare its attorneys for pro bono work by adding an “access to justice” section to its bar exam focusing on typical civil legal aid practice areas, the chief justice of the state's highest court told Bloomberg BNA Sept. 15.
The July 2016 exam will mark the first appearance of the new section, Massachusetts Supreme Judicial Court Chief Justice Ralph Gants said during a Sept. 15 panel discussion in Washington.
The new section will cover subjects like divorce and alimony, foreclosure, landlord-tenant relationships and small claims, Gants told Bloomberg BNA in an interview following the panel.
Between 40 and 50 percent of new law school graduates who pass the bar exam in Massachusetts are unable to find legal employment within the first year out of school, Gants told BNA.
There are seven law schools in Massachusetts, and Gants told Bloomberg BNA he hopes the new bar exam will influence the “non-Harvard” schools to focus classes on developing skills in traditional civil legal aid practice areas.
“We want to resurrect the model of the old country lawyer,” someone who is able to “cobble a living together” in a variety of practice areas, Gants told Bloomberg BNA.
“Ideally, we're creating a cadre of community lawyers,” he said.
You can read more here. Will other jurisdictions follow the Massachusetts example?
Thursday, September 25, 2014
As I mentioned last fall, California has enacted a fifteen-hour experiential requirement for law school graduates before they can become members of the California Bar. The Bar is now in the process of developing regulations on the implementation of this requirement. You can find their main page here, and the latest version of the Task Force memorandum and recommendation is here. The Task Force held a hearing on September 16th.
From the memorandum: "Pre-admission Competency Training:
There will be two routes for fulfillment of this pre-admission competency training requirement: (a) at any time in law school, a candidate for admission must have taken at least fifteen units of practice-based, experiential course work that is designed to develop law practice competencies, and (b) in lieu of some or all of the fifteen units of practice-based, experiential course work, a candidate for admission may opt to participate in a Bar-approved externship, clerkship or apprenticeship at any time during or following completion of law school."
I believe that California's new requirements will have a great impact on legal education in this country. While they will affect California law schools the most, every law school will be affected. All ABA accredited law schools consider themselves national law schools. They want to attract students from all fifty states, and they want their students to practice in all fifty states. Since California is the largest state in population, all law schools must be prepared to meet California's requirements. I also believe that once law schools create experiential classes to meet the California's requirements, students who do not plan to practice in California will also want to take the classes. The result will be an explosion of experiential classes in American law schools. Law schools need to prepare now.
An editorial in Philadelphia's Legal Intelligencer (the nation's oldest daily law journal) authored by 16 members of the "Young Lawyer Editorial Board" offers the perspective of lawyers who are just starting their way up the learning curve about what they think law schools could do better to prepare students for practice. For one, they endorse the "residency" model we've heard about before (here, here and here) that is based on the training interns receive in medical school. They also say that law schools should offer more hands-on opportunities to draft complex contracts, real estate and M & A documents, draft a variety of litigation documents and take depos. I thought by now most schools were doing these kinds of things but maybe not based on the experience of these 16 recent grads. I'll let them explain in their own words what additional curricular changes they'd like to see:
. . . .
Last month, the ABA announced that it has endorsed a package of reforms that included requiring students to take a minimum of six hours of legal clinic or other "experiential" environment. The ABA further announced that, to protect accreditation, law schools would have to shift toward focusing on student outcomes, including passing the bar exam and obtaining employment.
We think these reforms are a good start, but they still fall short. One reason graduates have difficulty obtaining employment is that most of them need to be trained in how to practice law, and clients are unwilling to pay for training new lawyers. Law schools need to step up and train students on how to practice law. While a six-hour legal clinic is helpful in providing some practical experience, we think that third-year law students should be given credit for working at government agencies, nonprofits and law firms as unpaid or paid interns. The programs could be similar to the training physicians receive as residents immediately after graduating. This legal residency program would be a radical change in legal education that cannot be implemented overnight, but it is a necessary change that the ABA should move toward.
Not only would the legal residency program help recent graduates, but it would also help the profession as a whole. Rather than spending the first year or two training graduates, new lawyers would be better able to handle matters on their own and provide more value to clients. As it stands right now, clients are being forced to pay for training that the graduate should have gained in law school. No one can blame clients for opposing that scam.
In addition, law schools should take the radical step of offering courses in practical skills to help prepare law students for the actual practice of law. Many schools are implementing such changes. For example, Temple University's Beasley School of Law offers an excellent trial advocacy program for current and future litigators. Other types of classes that should be more widely offered are the drafting of complex contract, real estate and mergers and acquisition documents, as well as practical skills in litigation, such as taking a deposition, drafting a complaint and answer and drafting discovery requests. These classes will not only help graduates be better prepared to practice law, but also provide them an opportunity to experience different practices before starting their careers.
. . . .
Continue reading the full editorial here.
According to U.S. News, here are the top five schools where grads carry the most debt:
Average indebtedness of 2013 graduates who incurred law school debt
Percent of grads with debt
San Diego, CA
New York, NY
San Diego, CA
You can read the full list here.
Wednesday, September 24, 2014
I'm a day late with this (story of my life) but I figured some of readers would still be interested and you can always calendar it for next year. Here's the link to the official website which has exceeded its bandwidth at the moment (who knew this was such a popular holiday?) so I'll have to go with the National Punctuation Day entry from Wikipedia:
National Punctuation Day is a celebration of punctuation that occurs each year on September 24th in the United States of America. Founded by Jason Stanford in 2004, National Punctuation Day simply promotes the correct usage of punctuation. Rubin encourages appreciators of correct punctuation and spelling to send in pictures of errors spotted in everyday life.
Granted there's not much there to sink your teeth into. So until the official website comes back online (apparently there's a page with suggested activities to celebrate NPD - or try this) how about this article from last year's The New Yorker magazine.
Remember to take a snark mark to lunch (they don't get out much).
Sad news at Lewis and Clark:
The law school at Lewis & Clark will close its legal clinic in Portland, according to a report from The Oregonian. The clinic provides legal services to the poor in the region.
The law school has suffered enrollment decline of 13 to 30 percent from their peak years that came two to four years ago. The school has also cut staff members, costs and made other moves to ensure efficiency.
“What we have to do, like everybody else, is face budget realities,” said Jennifer Johnson, the new dean at Lewis & Clark. The clinic “has largely been a tuition-driven enterprise that we can’t afford. It’s purely financial.”
The doors to the clinic will close on December 31, which will worsen the present shortage of legal services for those who are low-income.
You can read more here.
Those fluffy bits beneath the bed, for instance, are dust kitties (Northeast), dust bunnies (Midwest), house moss (South) or woolies (Pennsylvania). A potluck is a tureen dinner in upstate New York or, in the Midwest, a pitch-in or scramble dinner. Almost a whole page of DARE is dedicated to “wampus,” a Southern term for a variety of real creatures (such as a wild horse) and imagined ones, such as swamp wampuses and whistling wampuses.
Some DARE words hint at long-lost social occasions. At a “waistline party,” mentioned in African-American circles, the price of admission corresponded to a reveler’s girth; at a “toe social,” a mid-20th- century term, women draped in sheets were picked as partners on the basis of their feet. (Presumably they then danced together uninhibitedly, or “fooped.”) We can hear echoes of how men and women spoke to, or about, each other. In the 1950s, a man from the Ozarks might say his pregnant wife was “teemin’” or “with squirrel”—but not if she was around to hear him.
For more examples, be sure to read the comments following the article. Reminds me of the great 1941 movie, “Ball of Fire” with Barbara Stanwyck and Gary Cooper (highly recommended).
Tuesday, September 23, 2014
Reforming the Law School Curriculum from the Top Down by R. Michael Cassidy.
In this essay, the author proposes a pivotal reform to the third year curriculum involving team-taught “Advanced Legal Problem Solving” workshops in subject specific areas, and describes the precise structure, content and staffing of such capstone courses. He argues that such workshops would significantly enhance the preparation of law students for entry into the profession, and would create an efficient and cost-effective route for law schools to satisfy rigorous new ABA accreditation standards regarding experiential learning and outcomes assessment."
"The primary benefit of these subject-specific ALPS is that they would begin to model and impart reflective judgment for our students in a problem solving context. Practical skills and judgment are the two competencies seasoned professionals most often find lacking in law school graduates. The law is a skills-based, service-oriented profession. A Ph.D. student in English can learn about Emily Dickinson by studying her poetry, taking classes on the subject from erudite and thoughtful scholars, and talking to other graduate students about her work and her technique. But you cannot develop the rudimentary skills of a gymnast by talking about gymnastics and watching others do it. At some point, you need to mount the balance beam or uneven bars and try it yourself, hopefully with a seasoned coach nearby to dissect your performance and break your fall. The practice of law is more like gymnastics that than it is like poetry, and the sooner we recognize this critical difference the better off our students will be."
Fastcase (here, here and here) has announced a partnership with Clio practice management software that will allow lawyers to automatically track and bill clients as they do legal research. According to Fastcase's website, here's how it works:
With this partnership, legal professionals can track time spent researching without focusing attention away from the task at hand. From inside Fastcase, you can now select from clients and matters in Clio, start a timer for your research session, and record the activity automatically in Clio. You never have to miss or manually record your research time again.
. . . .
To get started, log into Fastcase and [then connect] to Clio
[Next], log in to Clio with your Clio username and password. Voila! Your Fastcase and Clio accounts are in sync. Whenever you’re in Fastcase, simply select your matter (they’re automagically populated and updated from Clio) and start your timer.
There are screenshots and additional instructions on the Fastcase website to help walk you through syncing the search engine with Clio's practice management cloud service should you want more info.
Hat tip to the ABA Journal Blog.