Legal Skills Prof Blog

Great clinical training, less cost

This is a new article by Professor Robert Kuehn called Pricing Clinical Legal Education challenging the assumption that expanding clinical training opportunities for law students costs too much.  It is available at 92 Denv. U. L. Rev. 1 (2014) and here on SSRN. From the abstract:

Some blame the cost of clinical legal education for high law school tuition. They argue that, regardless of the educational and employment benefits to students, clinical legal education, and law clinics in particular, are too expensive to expand or require for all students in a time of decreasing law school enrollments and revenues. This Article is an empirical examination of these claims. 

Reviewing tuition, curricular and enrollment data from all law schools, this Article demonstrates that 84% of law schools already have the capacity to provide a clinical experience to every student without adding courses or faculty, although only 18% presently require or guarantee that training. It finds there is no effect on the tuition and fees students pay from requiring or guaranteeing every student a clinical experience and no difference in tuition between schools that already have sufficient capacity to provide a clinical experience to each student and those that do not. In addition, there is no tuition growth associated with the increased availability of experiential or law clinic courses for students or the increased participation of students in law clinics, in spite of the higher costs many associate with clinics. These findings demonstrate that clinical courses have not cost, and need not cost, students more in tuition. The Article concludes that providing a clinical experience to every student is more a question of a school’s will to provide that educational experience than of cost.

(jbl).

Tips: When You’re Being Interviewed by the Media

Lots of people are afraid of speaking in public. And lots more have no idea how to handle a media interview. There is hope. From Cision, here is a helpful infograph with sound advice on conducting yourself before, during, and after an interview.

(ljs)

NALP reports employment rate for new law grads is up though there are some important caveats

This finding is the result of the NALP's survey of 2014 law school grads which notes that this is the first time employment rates have increased from the previous year since pre-recessionary 2007. However, the good news comes with two caveats. First, employment data for the class of 2014 was collected ten months after graduation rather than 9 months due to an ABA rule change making it more difficult to compare 2014 law grad employment rates with those of the previous years. In addition, last year's graduating class was smaller than 2013's which means that even though the overall number of jobs available was less, the employment rate went up because last years's graduating class was smaller.  Here are more details from NALP's press release:

Employment Rate for New Law School Graduates Rises by More Than Two Percentage Points - But Overall Number of Jobs Falls as the Size of the Graduating Class Shrinks

. . . . 

Analyses of the NALP employment data for the Class of 2014 reveal an employment rate that increased for the first time since reaching a 25-year high of 91.9% in 2007. 

. . . . 

According to NALP's Executive Director, James Leipold, "These data present a picture of a complex employment market, and it is virtually impossible to tease apart the twin forces of a shrinking class and an overall job market that continues to improve (albeit modestly), but it is clear that the shrinking class size did indeed have a positive impact on the overall employment rate, and that is a dynamic that will likely continue to be in play for the next three graduating classes, each of which is projected to continue to come down in size in fairly dramatic steps."

 

Despite the small contraction in the overall number of jobs, there continue to be signs of improvement in the entry-level job market. For instance, of those graduates for whom employment status was known, 66.3% obtained a job for which bar passage is required, the highest percent since 2010. An additional 14.8% of graduates obtained jobs for which a JD provides an advantage in obtaining the job, but for which bar passage is not required. (These are often described as law-related jobs.) This compares with 13.8% for the Class of 2013, and is a figure that has grown steadily since 2007, when it stood at just 7.7%. In addition, the number of graduates who report that they are working in jobs that are short-term and/or part-time also continues to decline, and the overall percentage of graduates who reported jobs that were full-time, long-term, and bar passage required jumped three full percentage points, to 62%, up from an historic low of just 57% for the Class of 2011. Also, the number of graduates who hold jobs but say they are already looking for another job continues to come down, as does the number of graduates who report that they are working as solo practitioners immediately after graduation.

 

The distribution of jobs among different kinds of employers has remained relatively constant over the last three years, with graduates predictably finding jobs with law firms, government entities, the judiciary, businesses, nonprofit and public interest organizations, and educational institutions. The big loss of private practice jobs that took place between 2009 and 2010 continues to be the one change that really distinguishes the post-recession entry-level legal employment market from the pre-recession entry-level legal employment market. Jobs in private practice accounted for just over half of the jobs obtained for the Class of 2014, while jobs in the public sector and public interest, including government jobs and jobs as judicial clerks, accounted for just under 30% of all jobs, and jobs in business for just under 20% of all jobs. The actual number of jobs, however, fell in every category except government, and within private practice the number of jobs fell in every law firm size category except for firms of 101 to 500 lawyers, where the number rose modestly.

 

Additionally, starting salaries for the Class of 2014 remained essentially flat in every category, and law firm starting salaries remained absolutely flat, with a median of $95,000 and a mean of $102,600, both of which matched exactly the median and mean measured for the Class of 2013. While aggregate salaries have come up somewhat from the lowest post-recession figures measured in 2011, the earning power of the class as a whole is nowhere near what it was in 2009 when the law firm median starting salary stood at $130,000, the highest figure ever measured.

 . . . . 

 

What Does This All Mean?

On balance NALP's Leipold is sanguine about the entry-level job market for new law school graduates. "A fair bottom-line reading is that the entry-level job market is basically flat to improving slightly. In parsing this year's numbers it probably doesn't make sense to read too much into the small contraction in the overall number of jobs obtained, as it reflects in part simply a smaller group of job seekers. The good news in terms of the overall employment rate is that graduating class sizes will likely continue to come down at a much faster rate than any continued diminution in the actual number of jobs available to new law school graduates. In fact, some analysts look at the projected size of the graduating Class of 2017, one that will be some 30% or more smaller than the Class of 2013, and suggest that there will not be nearly enough new law school graduates to meet the needs of the entry-level lawyer job market at that time. Tempering those predictions is the understanding that growing efficiencies created by technology and business systems, and increased competition from non-traditional legal services providers, will both likely continue to put downward pressure on overall law firm lawyer headcount in the coming years and even decades."

 

So what is the bottom line? According to Leipold, "It is clear that the overall jobs profile for the Class of 2014 has improved considerably from that for the Class of 2011, the class that will come to be seen as having faced the worst overall post-recession job market, and we fully expect that the overall employment rate for the Classes of 2015, 2016, and 2017 will continue to improve. Nonetheless the changes facing the industry are enormous, and it is all but certain that the job market will continue to change for new law school graduates in the years ahead."

. . . .

Read the entire press release here.

(jbl).

Ongoing Innovation in Legal Education

Ongoing Innovation in Legal Education by Bill Mooz and Andy Evans.

Abstract:     

The impact on the global economy of the financial services meltdown in 2008 and the resulting “Great Recession” can only be described as far reaching. All industries, including the legal services industry, were affected, with the pressures for cost containment causing profound disruption and changes in virtually every segment of the legal services market.

In the wake of the Great Recession, corporate legal departments saw intensified pressure not only to do more with less, but also to experiment with new approaches for acquiring and delivering legal services. This dynamic, in turn, affected large law firms dramatically, with clients now sending less work to them and placing greater constraints on how that work gets done and billed for. In turn, law firms have undergone significant consolidation and have tightened their hiring practices dramatically.

Law schools, who train the lawyers of the future, likewise felt the impact. With reduced law firm hiring, law school graduates saw reduced demand for their services, all while tuitions and debt levels continued to rise. Law school applications, not surprisingly, plummeted.

In the face of (and because of) these changes, certain segments of the legal services industry continue to grow. Alternative legal service providers, such as eDiscovery vendors and Legal Process Outsourcers (“LPOs”), have prospered during this period, as have Legal Operations groups within corporate legal departments.

 

(Scott Fruehwald)

Umberto Eco on Using Rhetorical Figures

Now, we either use rhetorical figures effectively, or we

do not use them at all. If we use them it is because we pre-

sume our reader is capable of catching them, and because we

believe that we will appear more incisive and convincing. In

this case, we should not be ashamed of them, and we should

not explain them. If we think that our reader is an idiot, we

should not use rhetorical figures, but if we use them and

feel the need to explain them, we are essentially calling the

reader an idiot. In turn, he will take revenge by calling

the author an idiot.

From “How to Write a Thesis (here, 5.1)

(ljs)

NPR asks: "Should law schools pay if students don't get jobs?"

This is a short podcast from NPR's Marketplace Report featuring commentary from Steve Harper of Belly of the Beast fame. Here's a brief synopsis from Marketplace:

Law school doesn't look like a great deal for many students. Tuition keeps going up, which means bigger loans to pay off.

But the job market for lawyers remains weak. At lower-tier schools, less than half of students end up with jobs as attorneys, according to a recent report from an American Bar Association task force.

Steven Harper, author of "The Lawyer Bubble," argues that those schools should be held accountable. The ABA task force proposes less-dramatic measures, like giving students more information about their prospective debt load.

(jbl).

Teaching as Modeling Behavior for Students

In a recent Vitae article, David Gooblar writes:

In 1961, a Stanford University psychologist named Albert Bandura conducted a soon-to-be famous experiment. He had young children watch adults interact with an inflatable “Bobo” doll in a toy-strewn room. Half of the children observed an adult acting aggressively toward the doll: pummeling, hitting, attacking the defenseless toy with mallets. The other half watched an adult playing nicely with Bobo, as the children’s parents might want them to play with other kids. All of the children were then left alone in the room with the doll. The resulting behavior will surprise no one today: Children who watched the aggressive adult were themselves much more likely to be aggressive; the other children played nice.

 The results were part of a new idea that Bandura helped pioneer called “social-learning theory. It revolutionized our way of understanding cognition by showing that learning does not entirely depend on the threat of punishment or the promise of reward. Instead, social-learning theory posits that we learn to behave in large part by watching others.

You can read more here. Most of the suggestions amount to making yourself more open and thus more vulnerable. In my professional life, I try to be rather open and very reasonable, probably in the "warm, fuzzy" category; however, my students also have to deal with my insistence on rigor in my courses. I have no idea whether my style affects how students will shape their future professional personalities. Here’s hoping.

(ljs)

Baltimore and Boston law schools are the latest to launch incubator programs

From the National Law Journal:

Schools Collaborate on Baltimore Legal Practice Incubator

 

The University of Maryland Francis King Carey School of Law and the University of Baltimore School of Law are launching an incubator to help recent graduates launch solo practices while serving low-income clients.

 

The schools developed the project with the help of the Maryland State Bar Association, which is providing $50,000. Administrators hope to have the incubator running by November.

 

“The incubator offers a great opportunity for recent graduates to gain experience while providing affordable legal services to people in the state,” said Maryland Law dean Donald Tobin. The bar’s Special Committee on Law School Graduates spent two years planning the program, he said.

 

Earlier this month, Boston College Law School, Boston University School of Law and Northeastern University School of Law announced plans for a joint incubator in early 2016, partially funded by an American Bar Association grant. More than 30 law schools host incubators or similar legal residency programs, according to the ABA.

 

In Baltimore, each school will contribute three graduates who have passed the Maryland bar exam for the inaugural cohort. The participants will spend 12 to 18 months getting their practices off the ground. Tobin said the schools would look for graduates who aspire to solo or small-firm practices and have an entrepreneurial bent.

 

The law schools will provide office space, telephones and equipment, as well as malpractice insurance and bar dues. The graduates will get access to Westlaw, which provides free services to legal incubators.

 

. . . . 

Continue reading here.

(jbl).

The Art of Business Lawyering

Beyond Gilson: The Art of Business Lawyering by Praveen Kosuri.

Abstract:     

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients.

Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

 

(Scott Fruehwald)

Stable Median LSATs, but Declining Bar Passage Rates

How do we reconcile these apparently contradictory facts? In his recent article, Legal Education at a Crossroads: A Response to Measuring Merit: The Shultz-Zedeck Research on Law School Admissions, Adam Lamparello explains that the law school’s median LSAT (note: median, not average) can stay the same, but the LSAT for the bottom 25 percent can drop. The students with lower LSATs can reduce the bar passage rate:

This article suggests that, regardless of the factors causing the recent decline in bar results, bar pass rates will soon drop significantly due to the four-year decline in LSAT scores at the 25th percentile (and below). In other words, the median LSAT score of a law school can remain unchanged, but the bar pass rate of that school can plummet if the 25th percentile drops. That is precisely what has happened in recent years, and it should stop – now.

You can read more here.  A big challenge for the ASP faculty.

(ljs)

Writing Essay Exams to Succeed in Law School

John Dernbach has published the fourth edition of his valuable book, Writing Essay Exams to Succeed in Law School: Not Just to Survive (Wolters Kluwer).

To my mind, it is the best book on the subject. I have recommended earlier editions to my students. I particularly appreciate the way it breaks down the process into manageable pieces and illustrates with ample examples from illustrative law school essay answers.

(ljs)

"Teaching Business Associations with Group Oral Midterms: Benefits and Drawbacks"

This is a (not quite) new article by Professor Joan Heminway (Tennessee) posted on SSRN here back in January (hat tip to the TaxProf blog). From the abstract:

I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword...or a bugaboo...or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall of 2011, I began offering an oral midterm examination to students in my Business Associations course as an additional assessment tool. This Article explains why I started (and have continued) down that path, how I designed that examination, and what I have learned by using this assessment method for three years. Although some (probably most) will not want to do in their Business Associations courses exactly what I have done in mine (as to the midterm examination or any other aspects of the course described in this Article), I am providing this information to give readers ideas for, or courage to make positive changes in, their own teaching (for a course on business associations or anything else).

(jbl).

More From Deborah Jo Merritt: Can We Close the Racial Grade Gap?

Last week, Deborah Jo Merritt argued that there is a white bias in law school grading.  This week, she considers how to close the racial grade gap.  (here)

I have argued for several years that the best way to help minority students is to employ better teaching methods based on general legal education research.  (e.g., here)  Professor Merritt agrees: "Many of the ideas offered by Steele, Darling-Hammond, Holmquist, and Fruehwald rest on principles of good teaching."

She cautions that helping minority students improve will not be easy: "These approaches, as well as others mentioned in the articles at the beginning of this post, are worth trying in the classroom. I think, though, that it will be much harder than most white professors imagine to remove the clouds of stereotype threat."

She discusses an example of this difficulty: "White students showed little variation in how they responded to three types of feedback: (1) 'unbuffered' feedback in which they received mostly critical comments and corrections on their essays; (2) 'positive' feedback in which these comments were prefaced by a paragraph of the 'overall nice job; kind; and (3) 'wise' feedback in which the professor noted that he had applied a particularly high standard to the essay but believed the student could meet that standard through revision. All three of these feedback forms provided similar motivation to white students.

For Black students, however, the type of feedback generated significantly different results. The unbuffered feedback produced mistrust and little motivation; the Black students believed that the reader had stereotyped them as poor performers. Feedback prefaced by a positive comment was better; Black students were more likely to trust the feedback and feel motivated to improve. The wise feedback, however, was best of all. When students felt that a professor recognized their individual talent, and was willing to help them develop that talent, they responded enthusiastically.

Some researchers refer to this as the “Stand and Deliver” phenomenon, named for the story of a high school teacher who inspired his underprivileged Mexican-American students to learn calculus. Professors who set high standards, while conveying sincere signals that minority students can meet those standards, can close enormous achievement gaps."

Professor Merritt is correct that law professors need to think about their students' psychological makeups as part of their teaching approach.  I think this applies to all students who suffer from fixed mindsets.  (See Carol S. Dweck, Mindset: The New Psychology of Success (2006))  We can no longer rely on teaching methods developed in the nineteenth century for a specific group of students.  Instead, we need to apply the discoveries of general education research to legal education.

(Scott Fruehwald)

Best Small Cities to Work In.Best Metro Cities to Work In.

Here is one survey’s report on the best small cities to work in.

Here is another survey report on the best metropolitan cities to work in.

Thnx to JD Journal

(ljs)

Free Internet Legal Research

Seasoned librarians Wanita Scroggs and Sally Waters have published Free Internet Legal Research (Vanderplas). Because law students have free access to powerful internet research tools, they likely do not realize that in future years, electronic research prove expensive. Then, they will fully appreciate this book. But even in law school, students should realize that relying solely on a (currently) free search engine may prevent them from accessing all relevant sources.

Here is an interview with the authors.

(ljs)

Kaplan survey finds pre-law students most concerned about earning good grades

Kaplan Test Prep services periodically surveys pre-law students to better understand their concerns and aspirations in making the decision to attend law school (here and here).  For this year's survey, Kaplan asked 466 pre-law students to identify their biggest worries.  The results show that students today care most about earning good grades, maintaining a healthy schoolwork-life balance and avoiding too much debt - in that order. From Kaplan's press release:

Kaplan Test Prep Survey: Pre-Law Students’ Top Concerns About Their First Year of Law School are Academic and Financial — But Not Social

 

Pre-law students say that their biggest concerns about their first year of law school are academic and financial, according to a June 2015 Kaplan Test Prep survey of 466 pre-law students*. As they put together their law school applications at a time when the number of LSAT® takers is noticeably on the rise, here’s what prospective students are thinking about most when it comes to their first year (1L) experience:

 

Achieving High Grades: Understanding how academically intense the 1L experience can be, nearly 9 out of 10 (89%) pre-law students surveyed said they are concerned about achieving high grades.

 

Maintaining a Healthy Work/Life Balance: Students’ first year is considered to be the most rigorous of the three-years long law school experience because of the many exams and reading. With that in mind, 82% of surveyed students said maintaining a healthy work/life balance was a concern.

 

Debt: With tuition at many law schools topping $40,000 a year and the job market for lawyers still struggling to return to healthy levels, more than three-quarters (76%) of pre-law students surveyed said that taking on large debt is a concern.

 

Securing a Summer Internship: Securing a summer internship, which can lead to post-graduation jobs, is an extremely competitive process, which may explain why 73% are concerned about this aspect of being a 1L. The critical piece to secure a summer internship: high grades.

 

Fitting In: Whether due to confidencein their social skills or indifference to being socially accepted, just 38% of pre-law students said that fitting in socially was a first year concern.

 

“Your first year of law school is undoubtedly your most important. It’s the start of what will hopefully be a rewarding three year experience, and when you earn the grades that are most determinate in launching a successful legal career,” said Jeff Thomas, executive director of pre-law programs, Kaplan Test Prep. “The fact that pre-law students are concerned about achieving everything from high grades to covering tuition is an appropriate and natural response to the real challenges that await them.”

 

*The e-survey was conducted in June 2015 of 466 pre-law law students who prepared for the LSAT with Kaplan Test Prep. The LSAT is a trademark of the Law School Admission Council, which is not affiliated with this survey or Kaplan Test Prep.

Hat tip to JDJournal.

(jbl).

Working in and Leaving a Large Law Firm

Of my students who start out in a large law firm, few of them stay put. For the most part, they want a better work/life balance. In this long article, Harrison Barnes offers these facts: 

• The majority of attorneys who join large law firms out of law school may never make as much money (adjusted for inflation) ever again.
•  Most attorneys who join large law firms out of law school never work at firms as prestigious ever again. Attorneys generally move a few times (to large law firms) before finally stepping out of a large law firm into something smaller or different. 
• Only half of the attorneys who join large law firms out of law school are likely to be practicing law in 10 years, while over 85% of the attorneys who join small law firms are likely to still be practicing in 10 years.
•  The majority of attorneys who join large law firms out of law school will never work on matters for as large and important clients ever again.

 The article continues to give advice on how to succeed in a large firm. However, I doubt that after reading the advice, many young lawyers will decide to pursue that path.

You can read more here.

(ljs)

The Emergence and Development of a Law of Torts

I know that this article is a little off our usual subject matter, but I found it fascinating.

The Emergence and Development of a Law of Torts by G. Edward White.

Abstract:     

This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.

 

(Scott Fruehwald)

 

P.S. I had the pleasure to take Professor White's legal history course when I was at UVA.  If you want more, Professor White has written a wonderful book on the history of torts law.

Tech tip of the day: Add a two minute delay to sending emails

This is a great tech tip from the Harvard Business Review blog that most of us should probably implement. It involves programming your email account to wait two minutes before each message is sent. It's a great fail safe measure to prevent those emails we regret as soon as they're sent and the typos (and omitted attachments) we don't catch until it's too late. HBR's columnist Katie Smith Milway provides instructions for both Outlook and Gmail users (the former is a bit more complicated than Google's "undo send" feature which is described here). 

As Ms. Milway points out, the downside to changing your email settings to interpose a mandatory delay is that there are times when it can be quite frustrating to not be able to circulate documents or participate in email discussions in real time. But given the potential disasters - including ones that can end a career - averted by automatically delaying the sending of emails written in haste, dealing with occasional frustration seems like a pretty good trade-off.

Check out Ms. Milway's email tech tips here at the HBR blog.

(jbl).

Why Do Disciplined Lawyers Continue to Get into Trouble?

Here is one answer from Attorney at Work. It argues that the disciplinary action never gets to the root causes of the problem:

I notice that once a disciplinary matter comes to its conclusion, attorneys tend to remain angry and frustrated at the underlying situation. They are still upset with the complaining witness. They never believe the bar has treated them fairly (often a justified feeling). They are angry about whatever sanction has been imposed. This anger and frustration causes the lawyer to act as though the discipline case was entirely unfair, and thus the underlying situation an isolated one-off.

Closely related to anger and frustration, most lawyers are still in denial afterward, too. They still deny they did anything wrong, deny there is a problem to be addressed and deny they need to change their ways.

You can read more here.

(ljs)