Legal Skills Prof Blog

Which Citation Form: Bluebook or Westlaw?

With the advent of the Indigo Book, a new citation manual tracking the Bluebook (here), my thoughts turn to a brief Greenbag 2013 article by Ross Davies. He points out that with most research being performed electronically, lawyers, publishers, and maybe academics will prefer Westlaw’s citation form over the Bluebook’s. Here is the abstract:

As The Bluebook says of itself, “For generations . . . legal professionals have relied on the Bluebook’s unique system of citation. In a diverse and rapidly changing legal profession, the Bluebook continues to provide a systematic method by which members of the profession communicate important information about the sources and authorities upon which they rely in their work.” Generally speaking, this is true and probably always will be, so long as the Bluebook keeps pace with that changing profession. One big change is the technical side of online research services: Westlaw and its competitors cannot afford to conform to the Bluebook’s system when it conflicts with the requirements of their databases for, among other things, unique and recognizable abbreviations of the names of publications. And given a choice between following Bluebook form and following Westlaw form, readers and publishers are likely to follow Westlaw because that is where readers are doing more of their reading and publishers’ products are getting read. The microcosmic experiences of the Green Bag and the Journal of Law may be a sign of things to come, or even of something that has already arrived.

You can read more here.

(ljs)

Advice on Familiarizing the Court with the Facts

Lawyers at Carlton Fields point out that with judges reading on mobile devices, they are likely to miss what you include in your appendix. From JD Supra Business Advisor:

Always lay out your motion assuming that the reader has little or no familiarity with the facts of your case or the law that applies.  While this does not mean talking down to the reader or belaboring your point, it does mean providing the court with everything it needs to grant relief in your favor. 

In modern litigation, with digital records and e-filing, making sure the court is familiar with the necessary facts presents a unique challenge.  More judges than ever review filings on a computer or a tablet, which can make it difficult to toggle between the motion and an appendix.  While reviewing your filing, the court may not have ready access to the record, or may not have the time (or will) to examine your appendix in detail.  To the extent possible, make it easy on the court.

If, for example, an argument centers around a signature on a document, it probably makes sense to include a PDF of that signature in the motion itself.  As they say, a picture is worth a thousand words.

You can read more here.

(ljs)

Tips from BigLaw partners on acing your job interviews

Two hiring partners from Weil, Gotshal & Manges offer their top tips for acing job interviews in this column from the New York Law Journal. Though the article is directed at those seeking summer associate positions (I know OCI has been starting earlier each year but this is getting ridiculous) it's very sound advice that applies to anyone looking for their first law job whether it's with BigLaw or a small firm.

• Be Genuine and Authentic
• You Don't Have to Know Everything
• Do Your Research
• Practice and Prepare
• Know Your Resume and Speak Positively
• Be Professional
• Have Questions

Read the full column here.

(jbl).

Student Group at Harvard Law Calls for Ending Tuition

From the Harvard Crimson:

In the most recent wave of activism at the Law School, some students are calling on the school to eliminate tuition completely as part of their new campaign for financial justice.

Members of the group Reclaim Harvard Law published an open letter Sunday addressed to Law School Dean Martha L. Minow and members of the Harvard Corporation—the University’s highest governing body—demanding an end to tuition. . . .

Tuition at the Law School this year is $57,200 and will rise to $59,550 for the 2016-2017 academic year. Students in the Law School's Class of 2015 graduated with an average of $149,754 in debt, according to the Law School’s website

You can read more here.

(ljs)

What is Professional Identity?

Hi,

I just received the latest newsletter from CEFLER (the Center for Ethical Formation and Legal Education Reform), which contains a good description of professional identity:

Director's Greeting

What is Professional Identity?

Professional identity challenges law students and lawyers to internalize principles and values such that their professional conduct flows naturally from their individual moral compass.

See the following excerpt from the The Emperor Has No Clothes, But Does Anyone Really Care? How Law Schools are Failing to Develop Students' Professional Identity and Practical Judgment, pages 344-45:

The concept referred to as "professional identity" needs to be clarified before one can appreciate its significance to a lawyer's development and its connection to the ancient concept of phronesis, or practical wisdom. Scholars have already had difficulty agreeing on a definition of "professionalism." It should be no surprise, then, that "professional identity" has required clarification. The phrase is not clearly defined even within the seminal reports introducing the concept. (Download the article here.)

The Center for Ethical Formation & Legal Education Reform coordinates the programs and resources Regent Law has committed to developing students' professional identity. Read more »

For additional updates on all the work CEFLER is doing, please visit our social networks and website. And be sure to let us know what you think.

L. O. Natt Gantt II
CEFLER Director

Also, thanks to Natt & Ben for mentioning my professional identity book in their newsletter.

(Scott Fruehwald)

What Do Junior Law Associates Do at Work?

Mostly, they read. That is the conclusion of an extensive three year study. Ann Sinsheimer & David Herring, Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals.

From the abstract:

The findings suggest that lawyering is fundamentally about reading. The attorneys observed for this study read constantly, encountering a large variety of texts and engaging in many styles of reading, including close reading and also reading broadly, skimming and scanning texts for information. Their writing processes typically began by reading and rereading the information they used to substantiate their written work. They functioned in stressful environments in which they felt pressed for time and had to juggle multiple tasks. 

This paper explores the implications of these findings for a variety of audiences, including legal educators, law firms training junior associates, and those doing research on legal pedagogy. For legal educators, the results of this study can be used to develop classroom exercises and to train new teachers. Notably, legal educators should consider devoting more time to teaching reading skills. Although legal educators often assume that law students possess the necessary reading skills, this study indicates that this assumption is faulty and that instruction in this area is likely a key component in the successful transition to practice. For law firms, this study sheds light on the tasks with which new attorneys struggle and reveals the areas in which new attorneys require the most facility. In terms of legal research, this ethnography provides a model that can be expanded to study these same practice areas and other practice areas at law firms of all sizes throughout the country.

You can access the article here.

(ljs)

No Access to Justice Brennan’s Records on Merrick Garland

From Law.com

The executors of the papers of the late U.S. Supreme Court Justice William Brennan Jr. are blocking public access to the justice’s file on high court nominee Merrick Garland, who clerked for Brennan in 1977 and 1978.

The file, along with other documents relating to law clerks, case histories and correspondence, are part of the closed portion of Brennan’s extensive collection of papers at the Library of Congress, and will not be opened to the public until July 2017, the 20th anniversary of Brennan’s death.

Jeffrey Flannery, head of reference and reader services in the manuscript division of the Library of Congress, where the papers are housed, on Tuesday identified Stephen Wermiel, a professor at American University Washington College of Law, as the executor of the Brennan papers. Wermiel is co-author of Justice Brennan: Liberal Champion, a 2010 biography of the justice and not been known to be an executor until now.

You can read more here.

(ljs)

Design law school clinical offerings around students' interests, not those of the faculty

That's one of the conclusions reached by Professor Professor Robert Anderson (Pepperdine) based on the results of a survey that queried students about their reasons for participating, or not, in a law school clinic. From Professor Anderson's blog Witnessesh: Law, Deals, & Data: 

Clinical legal education survey results 

The law school world is currently enthralled with the idea of "experiential education." The push for experiential education comes from bar associations, accrediting agencies, and especially from lobbying groups of a certain segment of the law professoriat.

 

I am a big supporter of what I call "practical education" in law schools, which I consider to be education that will prepare law students to be effective early in their careers in their chosen areas of practice. My idea of "practical education" overlaps with, but is not the same as experiential education. A student can have an "experiential" bonanza in The Clinic for the Protection of Left-Handed Ferrets and emerge with no practical skills at all. Indeed, much of what passes for experiential education is not oriented toward imparting practical skills, because it focuses on narrow ideological areas of interest to faculty but not to students who need to get a real job when they graduate.

 

About a year ago, I put a survey on my blog asking students for the reasons why they did or did not participate in clinics in law school. Although the uptake was somewhat meager with 153 responses, most of them were students who did participate in a clinic, and I think the results are telling. To the extent these responses are representative, it's clear that the main reasons for not participating in clinics are (1) lack of interest in clinical practice areas and (2) scheduling constraints. I don't know how much scheduling constraints can be helped in a clinic, given the nature of the class. The lack of interest in practical areas both can and will be fixed this summer, assuming the ABA acts (more below).

 

It is obvious from the responses that many students do not participate in clinics because the clinics do not practice in areas that are aligned with the students' goals in achieving practical experience. This is especially apparent when combined with the reasons given for participating in a clinic. . . .  

Continue reading Professor Anderson's survey results (with some snazzy charts) here.

Hat tip to the TaxProf Blog.

(jbl).

Bringing Legal Education Reform into the First Year: A New Type of Torts Text

I have posted a new legal education article to SSRN:

Bringing Legal Education Reform into the First Year: A New Type of Torts Text

Abstract:     

Legal education reform has reached the first year of law school. Reform of the first year of law school is vital because it lays the foundation for the second and third years, as well as legal practice. Of course, changes to the first year must be done properly, following the latest research in how students learn. You can’t just add a few skills experiences to the first year and hope that will work. The first year must start with the basics so that students are ready to solve more advanced problems. In other words, the first year needs to emphasis the legal reasoning process, how it is applied, and simple problem solving.

An important part of reforming the first year is to adopt text books that have been written with the new purpose of the first year in mind and that are based on general learning theory. This article discusses the lessons I learned about writing texts for first-year students from writing an experiential torts text, A Companion to Torts: Think Like a Torts Lawyer (2015). I believe that the keys to writing a first-year text are to 1) start the students out slowly and explicitly, 2) break legal reasoning (thinking like a lawyer) into its essential parts (deductive reasoning, reasoning by analogy, distinguishing, synthesis, and policy-based reasoning) and have students do exercises in each of these types of legal reasoning, 3) teach students how to apply law to facts, and 4) have the students solve increasingly harder problems using these skills.

The first half of this paper will present the theoretical basis for the exercises I used in my torts text. Part II will discuss the neurobiology of learning, which must be the foundation for any effective approach to education. Part III will examine the effectiveness of particular learning techniques in relation to the neurobiology of learning. Part IV will lay out “Bloom’s Taxonomy,” a description of the six stages of cognitive learning. The second half of this paper will then present how I wrote my torts text, based on the theory of the first half. Part V will discuss how to organize the text. Part VI will give the types of exercises that should be included in such a book. These exercises comprise retrieval exercises, issue-spotting exercises, legal reasoning exercises on rule-based reasoning, analogical reasoning, distinguishing cases, rule synthesis, and policy-based reasoning, reflection exercises, metacognitive exercises, professionalism and professional identity exercises, and extended problem-solving exercises.

 

(Scott Fruehwald)

 

Shakespeare’s Relevance

We are celebrating the 400^th anniversary off the death of William Shakespeare’s death. Here is an interview with Shakespeare scholar David Scott Kastan. In the interview, he answers the central question:

Why are Shakespeare’s plays still relevant today?

The plays brilliantly stage the most urgent questions we have about our own lives. Shakespeare embeds the questions in such densely imagined and linguistically fashioned characters and plots that every age has at once felt the necessity and discovered their own ability to refashion them in whatever terms they need to stay in touch in with him.

(ljs)

Legal Services Corp. Launches Online Portals to Help People with Civil Legal Needs

The Legal Services Corporation (LSC), the country’s largest funder of civil legal aid programs for low-income people, is announcing today the development of online, statewide “legal portals” to direct individuals with civil legal needs to the most appropriate forms of assistance.  LSC will partner with Microsoft Corporation and Pro Bono Net to develop portals for up to two statewide pilots intended to demonstrate how this approach can be replicated as widely as possible in an economic fashion.

There is no right to counsel in civil disputes in the United States, and each year as many as 80 percent of low-income people who face civil legal problems that can threaten home, family stability and livelihood are unable to obtain assistance in resolving their problems. The portals are intended to help the legal aid community, courts and other state justice partners to provide some form of effective assistance to everyone with a civil legal problem.

You can read more here.

(ljs)

The Counterintuitive Costs and Benefits of Clinical Legal Education by Richard E. Redding

The Counterintuitive Costs and Benefits of Clinical Legal Education by Richard E. Redding.

Abstract:     

"Professor Jason Yackee’s recent study, Does Experiential Learning Improve JD Employment Outcomes?, finding no relationship between a schools’ clinical offerings and student employment outcomes was greeted with skepticism by the clinical legal education (hereinafter “CLE”) community. If we may tentatively conclude from the study that clinical courses fail to give students any significant leg-up in the job market, then perhaps CLE entails some counterintuitive pedagogical costs and benefits that we ought to consider. Could it come at the expense of what is nowadays often touted as being precisely its goal, which is to equip students with practice-ready skills? Contrary to what they promise to students and employers, clinics provide a relatively poor platform for students to learn and master legal skills. Instead, the often unrealized potential of clinics is that they can foster in students a better understanding and appreciation of the legal theory and analysis that is the mainstay of their doctrinal counterpart. The most meaningful, lasting, and transferable lawyering skill is knowing how to interpret, manipulate, employ, and reform legal (and relevant interdisciplinary and extralegal) theory, doctrines, and practices when applying them to solve real-world client problems. Clinical education is most effective when it actively engages students to grapple with the applications and limitations of legal theory and doctrine and the ways in which to interrogate and innovate existing law and practices. Thus, CLE can be immensely valuable, but not for the reasons typically advertised."

 

(Scott Fruehwald)

 

Bloomberg Ranks Undergrad Business Schools

Here are the top ten. Notice which prominent schools are not here, but are further down the list. I see that employer dissatisfaction with the grads worked against some schools. Bloomberg has decided not to rank undergrad B schools in the future.

Rank	School	Employer survey rank (40%)	Student survey rank (35%)	Salary rank (15%)	Internship rank (10%)	Ranking index score
1	Villanova	2	10	29	15	100
2	Notre Dame (Mendoza)	18	1	13	31	99.86
3	Boston College (Carroll)	5	5	17	12	98.57
4	Indiana (Kelley)	4	13	19	18	96.86
5	UVA (McIntire)	43	2	3	6	95.98
6	Texas at Austin (McCombs)	12	12	15	7	93.34
7	North Carolina (Kenan-Flagler)	28	8	9	17	90.34
8	Michigan - Ann Arbor (Ross)	27	15	6	3	89.49
9	NYU (Stern)	6	34	8	16	89.4
10	Bentley

You can access the full list here.

(ljs)

Special issue of the Bencher Magazine on practical legal skills

The most recent issue of The Bencher, the official magazine of the American Inns of Court is devoted to practical legal skills training. Articles include:

• Preparing, Briefing and Arguing Your Case with a Judicial Opinion in Mind.
• Making Mediation Work.
• Effective Written Advocacy.
• The View From WAY Behind the Bench.
• Endgame at the Witness Stand.

Read the whole issue here.

(jbl).

Universities Are Starting Food Banks for Their Students

Colleges and universities are beginning to face the reality that a fair number of their student are so strapped for cash that they have trouble affording food. These institutions are setting up food banks and joining the College and University Food Bank Alliance (CUFBA).

You can access the CUFBA website here. For more information, please click here and here.

(ljs)

Legislation and Regulation in the Core Curriculum: A Virtue or a Necessity? by James J. Brudney

Legislation and Regulation in the Core Curriculum: A Virtue or a Necessity? by James J. Brudney.

Abstract:     

"The first-year curriculum at American law schools has been remarkably stable for more than 100 years. Many would say ossified. At Harvard, the First-Year Course of Instruction in 1879-80 consisted of Real Property, Contracts, Torts, Criminal Law and Criminal Procedure, and Civil Procedure. These five courses-focused heavily on judge-made common law-dominated Harvard's IL curriculum from the law school's founding into the 21st century. The same five subjects have long commanded the primary attention of first-year students at Fordham, founded in 1905, and at virtually every other U.S. law school throughout the 20th century.

Starting in the 1990s, however, a growing number of schools have required a IL course examining different aspects of statutes and regulations. In previous decades, a handful of law schools offered upper-level elective courses in Legislation, including statutory interpretation, to a mixed reception. Administrative Law has been a more regular elective subject, although enrollments by school reflect an uneven proportion of upper-level students. What is new is the array of law schools deciding that a course in Legislation ("Leg"), or Legislation and Regulation ("Leg-Reg"), should be mandatory for first-year students.

There are at least 27 schools that require a first-year course in Leg-Reg, generally for either three or four credits. An additional group of schools require 1Ls to take Leg, a course that often includes greater focus on topics related to the legislative process but does not encompass regulations or the regulatory process as a major component. Overall, nearly 40 law schools currently require some kind of Leg-Reg or Leg course, almost all of them as part of the first-year curriculum. The number of schools requiring such a course represents a sharp increase within the past decade alone.

This article focuses on the importance for legal education of mandating such a course. Part One addresses three distinct justifications for inserting Leg-Reg into the first year of law school. From a pragmatic standpoint, lawyers since the New Deal have devoted ever-increasing time and energy to understanding, applying, interpreting, litigating, and counseling about statutes and the regulations or agency judgments that flow from those statutes. Legal education must catch up. Immersing first-year law students in a systematic approach to the methodology of statutes and regulations is at least as important to their future legal practice as immersing them in the methodology of the common law.

In addition, an early exposure to what it means to "think like a lawyer" outside the courtroom setting can illuminate and deepen appreciation for our three-branch system of government. Courts are the exclusive arbiters of what the common law means, and federal courts have become the primary arbiters of what the Constitution means as well. For statutes, however, the setting is more complex, reflecting a dynamic conversation among all three branches. By requiring first-year students to engage this conversation, law schools generate a more balanced set of insights about how our laws are made and applied. This, in turn, can help to minimize simplistic dichotomies between principled and political decision-making, and encourage students to recognize legislative virtues like consensus building and democratic responsiveness as comparable to the adversarial legalism of the courtroom.

Finally, statutory and regulatory subjects dominate the upper-level curriculum. Accordingly, it makes sense in foundational terms to require that students approach these subjects with an understanding of how laws and rules are shaped and informed by legislative and regulatory processes. A sophisticated methodological background should enable students to focus in more rigorous and also nuanced ways when they grapple with finer points of securities law, environmental law, or the law of telecommunications or civil rights.

Having taught both a required Leg course and a required Leg-Reg course, I believe there are solid arguments for each option. My current thinking is that Leg-Reg presents the stronger claim, but I will briefly address certain separate strengths of a Leg course as well. Whichever option one may consider, a case can be made that it borders on educational malpractice not to include either Leg-Reg or Leg as a mandatory element of the IL curriculum.

The fact that a Leg-Reg or Leg course should be required does not mean that implementing such a course is straightforward. Part Two discusses some challenges that accompany the development of a mandatory Leg-Reg course. These include deciding what topics should be covered and how to calibrate the emphasis between legislation and regulation; determining how Leg-Reg topics may be harmonized with existing subjects, notably Constitutional Law and Administrative Law but also Legal Writing and upper-level electives in Legislation; and reviewing certain institutional obstacles related to staffing a IL course as well as to persuading colleagues with long-standing, sincere investments in their common law subjects to yield some space for a newcomer."

 

(Scott Fruehwald)

New Deans at Five Law Schools

Five law schools have recently announced their selection of new deans: Syracuse, Loyola-Los Angeles, Colorado, Denver, and BYU. To learn about the new deans, pleases click here.

(ljs)

A great FAQ for law firm summer associates

Ross Guberman, legal writing guru and author of the best selling book Point Made: How to Write Like the Nation's Top Advocates has posted a list of the most frequently asked questions by summer associates along with links to suggested ways for handling each of these issues or situations. As Ross says, it's a "writing cheat sheet for your summer at the screen." The topics covered include:

• What questions should I ask before starting a writing assignment?
• Any suggestions for memos?
• How can I shorten my drafts?
• What are partners’ biggest complaints?
• Can I get some grammar tips?
• How about some punctuation tips?
• Should I capitalize “court,” “plaintiff,” and “debtor”? What words do you capitalize in titles?
• Any contract drafting tips?

Go here to see the full post and, most importantly, the links to the excellent list of resources Ross has provided. 

(jbl).

Thinking about Fonts

Although some in the legal community have focused on the advisability of using fonts that make writing more readable, I don’t think the topic has garnered the attention that it should. Librarian Benjamin Keele notes:

For a document by an official or professional, the font choice indicates the level of care taken in its production. If the document is set in Times New Roman, Calibri or any other default font, then at best I find the writing a bit more boring. If the author uses a different, more readable or more interesting font, then I note the thought and care the author put into presenting her work. Some fonts I find so attractive I gain some enjoyment from reading them.

(Note, our blog is in one of those boring fonts, but we editors have no control over that decision)

In a brief article, Keele offers some suggestions on desirable fonts:

Law professor James Grimmelmann gives great suggestions on selecting better fonts for academic legal writing [Here]. He also mentions some journals that use interesting fonts, like the Savannah Law Re view , which uses Equity [here], a font designed by Matthew Butterick, author of the very readable Typ o grap hy fo r Law yers [here].

You can read more here. The leading law review on the subject is Ruth Anne Robbins, Painting with Print: Incorporating concepts of typographic and layout design into the text of legal writing documents, 2 J. ALWD 108 (2004) (here).

(ljs)

Are law firm summer associate programs a thing of the past?

While it's likely an overstatement to say that law firms are abandoning en masse their summer associate programs, this report from the Bloomberg BNA Big Law Business blog found evidence that at least a few firms are heading in that direction. 

Are We Seeing the Death of Summer Associate Programs?

 

Last year, Quinn Emanuel Urquhart & Sullivan announced that it would largely do away with its summer program. Will the litigation powerhouse just be the first in a longer line of lemming-like law firms to scrap their young summer ranks?

 

Edward Colbert, managing partner of Kenyon & Kenyon, said in an interview on Thursday, that some firms he’s discussing a possible merger with “are not having summer programs.” That prompted his recruiting head Elizabeth Knechtges to call the firm’s incoming class of seven summer associates and alert them about the uncertain situation.

 

“Because we are discussing mergers, there might be a situation where we don’t have (a summer program),” said Colbert. “We wanted to give them as much of a heads up as we could and tell them that we will give you all the help we can… We know other firms that are looking for potential summer clerks and we can revert you to them.”

 

Colbert said that the calls placed by Knechtges earlier this week included five full-time summer associates and two part-time. She reached out to each of them personally, and then sent a follow-up email, he said.

 

“It’s not a warning, it’s a notice,” said Colbert, noting that the firm is still looking forward to its June summer program for the time being. He also clarified that Quinn Emanuel is not one of the firms Kenyon is discussing a merger with.

 

The development, which was first reported by Above the Law, prompted us to ask: Which firms are Colbert talking about that don’t have summer programs anymore? Which students does this affect? And is this really becoming a trend, that law firms are doing away with their summer programs? Or just a convenient talking point to downplay Enechtges’ phone call and deflect attention from Kenyon & Kenyon?

 

. . . . 

Continue reading here.

(jbl).