Legal Skills Prof Blog

Law Day & Legal Services

May 1, 2015 is Law Day. In observance of this day, John Levi, Chair of the Board of Directors of the Legal Services Corporation, has issued a statement describing the declining resources of the program and the rising need of low income Americans. Here is an excerpt:

In 1976, LSC’s first year of full congressional funding when the percent of the population eligible for LSC-funded legal assistance stood at 12%, the fledgling LSC was allocated by Congress, in inflation-adjusted terms, more than $468 million, rising three years later to its all-time high of what today would be more than $880 million. But today, despite our best efforts, the FY-2015 allocation of $375 million is less than half of that. Even 10 years ago, LSC’s actual funding was $400 million.

Since then, as LSC funding has declined and remained low, the population eligible for LSC-funded assistance has grown to all-time highs. In 2013, the most recent year for which U.S. Census Bureau data are available, 63.6 million people — one in five Americans — had annual incomes below the threshold for LSC-funded legal assistance of 125 percent of the federal poverty line. Another 32.4 million people had incomes below that level for at least two consecutive months during the year and thus were eligible for our assistance. In other words, nearly one in three Americans — 96 million people — qualified for LSC-funded services at some time during 2013.

You can read more here.

(ljs)

Law Schools That Have Cut Tuition

Some law schools have cut their tuition appreciably. Here is a list of tuition-cutting schools from PreLaw magazine.

(ljs)

Should Lawyers Be Able to Cover Indigent Clients' Living Expenses?

The ABA Rule 1.8(e) of Professional Conduct states in pertinent part:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

In a recent article (here), Professor Philip Schrag argues that the rule is unethical:

This rule bars lawyers from assisting their low-income litigation clients with living expenses, such as food, shelter and medicine, though such clients may suffer or even die while waiting for a favorable litigation result. Because of its indifference to the humanitarian or charitable impulses of lawyers and its harsh effects on indigent clients, Rule 1.8(e) stands out as an unethical ethics rule. This article examines Rule 1.8(e) and its persistence, academic criticism notwithstanding, in the law of most states. It also suggests that the rationale for its continued enforcement rests primarily on concern for clients in contingent fee cases, and that the rule could be amended, rather than repealed outright, to narrow its scope, preserving its possible benefit while reducing its collateral damage.

(ljs)

Emory Law to Establish John Lewis Chair in Civil Rights, Social Justice

From Emory University Law School:

Emory University School of Law has received a $1.5 million donation to help establish a John Lewis Chair in Civil Rights and Social Justice.

The gift, given anonymously, funds a professorship which will enable Emory Law to conduct a national search for a scholar with an established academic profile of distinction and a demonstrated desire to promote the rule of law through the study of civil rights. The law school has committed to raise an additional $500,000 to fund the chair fully.

Lewis has dedicated his life to protecting human rights and securing civil liberties. In 1963, at the age of 23, he was a keynote speaker at the historic March on Washington. During the height of the Civil Rights Movement, from 1963 to 1966, Lewis was named chairman of the Student Nonviolent Coordinating Committee (SNCC), which he helped form. In 1965, he was beaten as he led protesters trying to cross the Edmund Pettus Bridge for a voting rights march from Selma to Montgomery, Alabama. He has served in Congress as representative of Georgia's Fifth Congressional District since 1987.

You can read more here.

(ljs)

"Assessing Experiential Legal Education: A Response to Professor Yackee"

A new article posted on SSRN here by Professor Keith A. Findley (Wisconsin) in response to this article (and here and here). From the abstract:

In his recent article, my colleague Jason Yackee offers some interesting data on comparative rates of law-related job placement for graduates of the top 100 U.S. law schools. In the end, his analysis in part reaches the entirely unsurprising conclusion that higher-ranked law schools are more successful at placing their graduates in full-time law-related jobs than are lower-ranked schools. More interestingly, and less obviously, his data also suggest that schools that offer more experiential learning opportunities do not have any greater success in placing their students in full-time law-related jobs than do schools with fewer clinical offerings. From this, he queries whether clinical legal education is worth the expense and opportunity costs that it represents to law schools. In this response I focus on two important but largely overlooked questions that Yackee's data analysis (if correct) raises. First, I address the fundamental question Yackee's paper raises implicitly "what significance should attach to any disconnect that may exist between clinical opportunities and hiring rates? My answer is that hiring rates shouldn't affect curricular design in the way Yackee suggests. Simply put, the primary objective underlying the move toward clinical education, and the reason the American Bar Association (ABA) has increasingly demanded more attention to a skills-based curriculum and practice-ready graduates, is not to improve the hiring rates for law school graduates. Rather, the rationale for clinical education is much more about effective pedagogy for adult learners (both about substance and skills) and the need to create effective lawyers, not just as beginning attorneys, but as life-long learners and reflective practitioners. Second, again assuming that Yackee is correct about the hiring disconnect, the real question is why aren't employers influenced by clinical education when (a) they vocally demand practice-ready lawyers and (b) it is so pedagogically valuable? I suggest that the problem does not reflect a lack of interest by employers in experientially trained and practice-ready graduates (and hence in clinics), but rather inadequacy in the hiring metrics and heuristics that are currently available to employers, and indeed a desire by private law firms for a broader range of clinical offerings (not fewer clinics).

Hat tip to Tax Prof Blog.

(jbl).

Dealing with Negative Online Reviews

Avvo Vice President Josh King offers these suggestions:

• Responding briefly with a note apologizing for an oversights that might have occurred while encouraging a dialogue with the poster to resolve their complaints. Do not criticize nor condescend the initial poster and be wary of revealing confidential client information.
• If the poster’s name or contact information is not included in their negative review, do some sleuthing online to try to figure out who actually posted the comments. While it’s not automatic that the poster can be identified, the forum sponsoring the blog can obtain the site’s metadata. Expertise and luck can play a role in identifying otherwise anonymous poster.
• Ensuring your law firm’s web site includes positive client testimonials or feedback, so potential clients can read offsetting reviews.
• Litigating, although this option is risky and potentially costly.

But sometimes, you just have to take a deep breath and let it go. You can read more here.

(ljs)

Law School 2.0 on Flipboard

David Thomson of University of Denver Law has started a legal education magazine on Flipboard.  It links to legal education blogs, legal periodicals, and other sources on law schools and legal education with the layout resembling a magazine.  I now have another source I have to check everyday.

(Scott Fruehwald)

Practical Learning at Loyola-LA

Last year, American Lawyer rated Loyola-LA as the number three law school for training students for big-firm practice.  The rest of the top five were Duke, Michigan Stanford, and Chicago.  How did Loyola-LA join this illustrious group?

Loyola-LA has one of the most vigorous practical skills programs in the country because they prepare students by practice area.  (here)  It has practicums in business law and civil litigation, as well as in more specific areas, such as tax and entertainment law.  For example, "The adviser for The Corporate Law Concentration is Professor Dana Warren, the Patrick J. McDonough Director of the Business Law Practicum. According to Professor Warren, 'The Corporate Law Concentration gives students the opportunity to see what a lawyer really does in a transactional practice.' This real-life understanding makes graduates more employable in today’s market. One of the ways this Concentration prepares students for practice is through the capstone course. Warren adds, 'The capstone course, Business Planning, asks students to review documents and prepare client advice, to draft and comment on transaction documents typical to an entrepreneurial setting, and to master the lawyering skill of translating business-speak into effective contract language and back again.'"

Similarly, "The Civil Litigation Skills Practicum is a two-semester course that provides a survey of the litigation skills necessary to prosecute and defend a case from the pleading stage, through discovery and motions, up to, but not including trial. While the legal basis of the two-semester class is a survey of the applicable California Rules of Civil Procedure, California Rules of Court, and California Rules of Professional Conduct, the course is not merely a study of legal theories. Rather, the rules will be studied in the context of a simulated dispute that goes through both semesters."

Likewise, "Focusing on the tax attorney's role in the deal process, the Tax Law Practicum takes a transactional approach to the issues in an M & A transaction involving the purchase and sale of a business. In addition to analyzing substantive tax issues, the course focuses on the functions and demands placed on the tax lawyer, including tax planning for the transaction, and negotiating and documenting the tax provisions of the acquisition agreement.

The students will prepare a tax memorandum, give an oral presentation of the research and analysis of tax issues, as well as run a mock meeting with a client and corporate partner. Special guest speakers will include young tax lawyers and experienced corporate lawyers. The course objective is to integrate theory, ethics and practice in order to prepare students for the types of projects and challenges they will confront as lawyers in a transactional practice."

Loyola-LA's website states, "One of the things which distinguishes Loyola's faculty from others with similar credentials is the faculty's use of their expertise in the legal community, and their seamless integration of the doctrinal expertise with practical skills training in the classroom. Moreover, there are 13 full-time faculty members who teach in the required skills curriculum."  (here)  Loyola-La has numerous real world courses, including Cross Examination Intensive Workshop, Deposition Practice, Drafting Civil Trial Documents, Fact Investigation, Commercial Law Drafting and Negotiation Skills Class, Business Planning I: Financing the Start-Up Business And Venture Capital Financing, Constitutional Law In Action: Litigating Section 1983 Civil Rights Suits, Civil Litigation Practical Workshop: Litigating Child Sex Abuse Cases, etc.

Loyola-LA has developed an innovative approach to legal education, which satisfies the latest research of education scholars.  As I have said many times, theory and practice can be taught together.  In fact, practice reinforces theory because when one applies knowledge, one retains that knowledge better and is better able to use it.  Moreover, as I have also said many times, it is better to have a practical course on litigating civil rights law suits than a purely theoretical course on critical race studies.

(Scott Fruehwald)

Wall Street Journal: "Law School Applicant Pool Still Shrinking"

The Wall Street Journal Law Blog reports on the latest applicant numbers released by the LSAC. The silver lining is that applicants have perhaps the best opportunity ever to get into schools on their wish lists and there should also be much competition for jobs once they graduate. 

Law School Applicant Pool Still Shrinking 

The dramatic drop in law school applicants — a 40% decline between 2005 and 2014 — has many wondering when demand for a law degree will finally rebound. 

. . . . 

As of April 17, 47,172 people have applied to go to an accredited U.S. law school this fall, according to LSAC, which administers the LSAT entrance exam. That’s a 2.6% fall-off compared to a year ago. Applications are down 4.7% from 2014. 

. . . . 

Continue reading here.

(jbl).

Two Dangerous Outlook Features

Over at Attorney at Work, we learn of two dangerous features of Outlook:

Auto-Complete

You probably use the Auto-Complete feature every day, and take it totally for granted. The moment you put your cursor in the To: field of an email and start typing, Outlook tries to predict the email address you want. It’s been tracking your email habits and building a list of names and addresses from the messages you send. So, the moment you type “b” in the To: field, it suggests several past addressees whose names begin with “b.”

But with an inadvertent slip of the mouse, that email you think you’re sending to law partner Barbara could instead be going to opposing counsel Barry. And if the message contains sensitive information about a client, you’ve just breached confidentiality.

Out of the Office

You’re getting ready to leave the office on vacation or for an out-of-town continuing education program. Did you give your assistant your itinerary? Check. Turn on your alternate voice-mail greeting? Check. Turn on Outlook’s Out of Office (aka Automatic Replies) feature? Check.

Before you go, double-check that Out of Office auto-reply. Do you really want to advertise to the world that your home is unoccupied, or which hotel you’re staying in?

You can read more here.

(ljs)

Developing Law Students' Professional Identities

Developing Law Students' Professional Identities by E. Scott Fruehwald.

Abstract:     

A key responsibility of law schools should be to help their students develop professional identities – “what it means to be a lawyer in today’s world.” As a law dean has declared, “A focus on ethical formation requires us to consider not just what lawyers should know and what they should do, but also who they should be in order to live out the best ideals of the profession. It requires us to envision our graduates as the lawyers they will be.” Similarly, a law professor has asserted, “law-learning is fundamentally a process of human development that must embrace the relationships and tensions between self, client, legal system, and society.” Likewise, two law professors have averred, “students must graduate with a sense of their own professional identity that will guide them to conduct themselves in a manner that conforms to the customs, values, and mores of the legal profession.”

However, while all law schools teach a course in legal ethics, only a few law schools go further and help their students cultivate their “selves” within the legal profession, despite the great need for such training. This article is an attempt to help law professors understand the fundamentals of legal professional identity and to show them how to help students create their own identities.

Part II of this article will examine the general literature on developing professional identity. Subtopics will include metacognition and professional identity, self-authoring as an element of professional identity, and self-efficacy and professional identity. Part III will show how to develop professional identity in law students through coaching, explicit teaching, reflection, and authentic learning. Finally, Part IV will discuss the elements of a professional identity class, such as competencies and skills that should be taught and possible substantive topics.

 

(Scott Fruehwald)

Rejecting Rubrics

Many legal writing professors have proposed rubrics as a better way to help students understand what is expected of them.  Now, Deborah L. Borman has questioned the use of rubrics.

De-Grading Assessment: Rejecting Rubrics in Favor of Authentic Analysis

(this article is not yet available for download)

Abstract:     

"As writing professors struggle with such issues as increased class size, providing 'practice-ready' graduates, streamlining assignments, and accountability in assessment, many individual instructors and law school writing programs have developed articulated rubrics to assess students’ trial and appellate briefs. Rubrics may be as extensive as 20 categories and subcategories or may limited to only a few criteria. Rubrics by definition require the development of set, standardized criteria that the student must meet in each section or aspect of a brief in order to earn a certain set of points. These points earned in each section of the rubric then form the basis for the student’s grade.

In assessing a legal brief according to a standardized rubric, however, many subtleties of structure or analysis and much of the creativity of legal writing is unrewarded or lost. Using a rubric to assess a legal brief may result in the exact opposite of the intended result: an excellent and creatively written persuasive brief may 'fail' the rubric, while a brief that provides the exact criteria of the rubric may earn a top grade, despite lacking the intangible aspects of excellent persuasive writing.

Good writing does not result when locked into the matrix of a rubric. Rubrics impair writing and result in bad briefs. Rubrics replace authentic analysis of writing and reasoning with inauthentic pigeonholing that 'stamps standardization' onto a creative and analytical, i.e., non-standard process. A holistic approach to grading and assessing legal writing assignments leads to more comprehensible communication and ultimately better lawyering."

 

I am certain this article is going to be controversial.  Comments are welcome.

 

(Scott Fruehwald)

Are you an outstanding mentor to junior lawyers or know someone who is?

Professor and Dean Michael Hunter Schwartz, U. Arkansas (Little Rock) School of Law, is heading up a study to determine what personal characteristics make-up an outstanding lawyer mentor. The results of the study will be published by the Harvard University Press which also published Dean Schwartz's previous study What the Best Law Teachers Do.

At present, Dean Schwartz and his team of researchers are looking for nominations to be included in the pool of candidates from which outstanding mentors will be selected for inclusion in the final, published study.  If you consider yourself an outstanding mentor, or know someone who is, consider sending in a nomination by following the link below. 

Here are some further details:

We are seeking to identify attorney mentors who transform junior lawyers’ careers and even lives, study those mentors in depth, and understand why they are so effective. Based on this research, we will identify and describe a set of behaviors, attitudes, and habits that are characteristic of the best law mentors.   We hope to produce a work that is a manual for attorneys who aspire to be transformative mentors, a benefit to legal employers for hiring and training mentors, and a tool more junior lawyers might use to find good mentors.  Thus, anyone (you, your colleagues, or your alumni) who contributes to our study by nominating a mentor will both honor a great colleague and help move the profession forward by improving lawyer mentoring.

 

The methodology for the study will be qualitative and similar to the approach my co-authors and I used for What the Best law Teachers Do (Harvard University Press, 2013). We will solicit nominations, gather evidence of nominees’ excellence, and pare the list to the most extraordinary legal mentors. We will then study the mentors where they work, interviewing both the mentors and focus groups of current and former mentees.  We also hope to observe mentoring interactions.  We will sift through the information we gather, identify what the best mentors have in common and areas of important difference, and organize the book by the common themes identified through this process. We plan to finish our research over the next three years and complete the book, What the Best Law Mentors Do, by January 2019.   

 

Here is a link to the website we have created for the book, http://www.bestlawmentors.com, and here is a link to the page we are using to solicit and receive the nominations, http://www.bestlawmentors.com/nominate-a-mentor.html.  Please feel free to make nominations yourself.

(jbl).

Teaching Our New Student Body

Many law schools are encountering students with lower LSAT scores and G.P.A.s. This new student body may require a rethinking of teaching methods and curriculum. Over at Best Practices for Legal Education (April 16) Professor Margaret Moore Jackson (North Dakota) shares her thoughts. Here is an (abridged) excerpt:

The ongoing effort to improve legal education needs to explicitly embrace students who don’t tend to do particularly well on high-stakes tests like the LSAT, first-year law school exams, or the bar. Even schools who have long administered healthy academic assistance programs may need to consider whether changes should be made. . . . By re-envisioning both teaching methods and programmatic structures, schools can both adapt to changing conditions and help students learn and perform well.  Re-focusing a program of legal education to teach the students who are there, not the students who might have attended a decade ago, could invigorate the profession, opening doors that allow less-privileged, more diverse, and otherwise nontraditional students to succeed and excel.

You can read more here.

(ljs)

"Deals or No Deals: Integrating Transactional Skills in the First Year Curriculum"

This is a new article by Professor Lynnise Pantin (New York Law School) and available at 41 Ohio N.U. L. Rev. 61 (2014). From the introduction:

In the wake of criticism of legal education from both outside the academy and within, the mandate for developing and graduating practice-ready attorneys has never been clearer. There is a strong desire for law schools to begin graduating students who are practice-ready, meaning that these new attorneys would be prepared for the real practice of law upon graduation. The question of what type of practice remains. At least half, if not more, of all attorneys engage in some form of transactional practice, rather than litigation, or other form of dispute resolution. Transactional practice refers to the art of “planning, negotiating, documenting, and closing the deal.” The fact that so many practicing attorneys engage in transactional work indicates that, in order for law schools to produce truly practice-ready attorneys, law schools must train students for practice in both transactional and litigation fields. If law schools are not teaching transactional skills, then law schools are failing to teach over half of all lawyers the skills necessary to practice law. By changing the status quo, students may leave law school with both a more productive set of lawyering skills and a broader view of how they can contribute to the profession and the communities lawyers serve. If not changed, law schools will have failed in any effort to graduate practice-ready students.

(jbl).

How Yoda Speaks English

With a new Star Wars movie on the horizon, we might return to our fascination with Yoda-talk. As a posting on Grammar Girl points out:

Clearly Yoda is communicating using English words, and we understand what he means, so in that sense it's real. Yoda makes words plural the way we normally make words plural and conjugates his verbs the same way we do. The only difference between standard English and Yodish (as some websites call it) is the word order.

Yet, Yoda sometimes uses standard English word order, particularly when he is making a serious statement:

"The fear of loss is a path to the dark side."

“A Jedi uses the Force for knowledge and defense, never for attack.”

For a detailed analysis of “Yodic,” please click here.

(ljs)

Are you a professor who inspires?

If so, there may be a pile of simoleons in your future - $25K to be exact. A cash award in that amount is available from the Elizabeth Hurlock Beckman Award Trust for a professor who inspires students, particularly in the fields of law, psychology and medicine. Here are the particulars:

DEADLINE WEDNESDAY, JUNE 30 $25,000 TO PROFESSORS WHO INSPIRE

 

Elizabeth Hurlock Beckman Award Trust Seeks Applicants for 2015 Help us expand our circle of Beckman Friends   WHAT The Elizabeth Hurlock Beckman Award Advisory Committee is currently seeking nominations for the 2015 Beckman Award. The award is given to professors who inspired their former students to achieve greatness. Each recipient will receive a one-time cash award of $25,000. Preference will be given to educators who teach or who taught in the fields of psychology, medicine, or law.    WHO The Elizabeth Hurlock Beckman Award Trust was established in 2008 under the will of Gail McKnight Beckman in memory of her mother, Dr. Elizabeth Hurlock Beckman. Wells Fargo Bank, N. A. serves as the Trustee. Dr. Beckman was an educator, a renowned author, and a pioneer in the field of Psychology.    Gail McKnight Beckman created the Beckman Award to benefit teachers who have inspired their former students to make a difference in their communities. The award is given to current or former academic faculty members who have inspired their former students to "create an organization which has demonstrably conferred a benefit on the community at large."   Alternatively, academic faculty members must have inspired their former students to "establish on a lasting basis a concept, procedure, or movement of comparable benefit to the community at large." The advisory committee will consider the quality of the former student's or mentee's work when selecting the award winners.   WHEN The nomination deadline is Tuesday, June 30, 2015. An award ceremony will be held in the fall in Atlanta, GA.   WHERE For more information or to nominate or apply for the award, please visit: www.wellsfargo.com/privatefoundationgrants/beckman

Hat tip to Professor Kathy Cerminara.

(jbl). 

Top Ten Family Friendly Law Firms

Yale Law Women has released its list of the top 10 national family friendly firms. They are, in alphabetical order

• Arnold & Porter
• Cadwalader, Wickersham & Taft
• Duane Morris
• Hogan Lovells US
• Hunton & Williams
• Kirkland & Ellis
• Morrison & Foerster
• Munger, Tolles & Olson
• Orrick, Herrington & Sutcliffe
• Wilmer Hale

You can read more here.

(ljs)

Have we finally hit bottom in law school applicants?

Professor Alfred Brophy blogging at the Faculty Lounge thinks so (and here). That prediction is based on the LSAC's latest numbers showing that the number of law school applicants is down 2.6% from last year at this time while the number of applications is down 4.7% (a slight rise for each from the last report a few weeks ago).

(jbl).

Working in Collaborative Groups – The “Two Pizza” Rule

Many of our readers explore our archive of past postings. One posting that they often access deals with the “two pizza rule. Here it is:

Many graduate students don’t care for group projects, especially when a grade depends on the work of others.  However, being able to collaborate and work well with colleagues is an important skill for law students to master.  Once students enter the “real world” as practicing lawyers, they will need to learn to work on group projects and be viewed as valuable contributors.  Often, it is these “soft skills” that may end up tipping the decision on whether to hire a summer law clerk as an associate.

A recent article in the Journal of Legal Education discusses the richness that group work can bring to the law school classroom.  “Studies demonstrate that group work by students will generate higher levels of participation, greater learning, and better products.”  William J. Rich, Balance in Legal Education: Pervasive Principles, 60 J. Legal Educ. 122, 126 (2010), citing Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. Legal Educ. 75, 94 (2002).  “Students who gain that understanding will be equipped to take those experiences into the firm, government, or corporate environment…and to gain greater success in their lives as professionals.”  Id.

The size of the group can certainly have an impact on the group culture and ultimate success.  A recent post on The Scholarly Kitchen about the efficiency of working in small groups discusses a rule that provides a great visual and understandable philosophy.  The “two pizza” rule (attributed to Amazon CTO Werner Vogels) is a concept that project team groups should include no more people than can be fed by two pizzas.  Maybe serving two pizzas would make the group work more interesting to law students!

(dkh)

The rule may means that collaborative meetings among hungry football players should include very few individuals, and meeting among dieters may include many people. In any case, I think there’s merit to the rule.

(ljs)