Thursday, June 30, 2016
Probably most of aren’t aware that documents filed in government rulemaking proceedings frequently contain explanatory and persuasive visuals—both illustrations and short videos.
In their article, Visual Rulemaking, Elizabeth G. Porter & Kathryn A. Watts discuss the use of visuals by government agencies and participants and include many examples. You can access the article here.
This from the Fordham Law online news blog:
Two years ago, the American Bar Association issued new standards for law schools to fulfill to remain in good standing. Among them was Standard 304, which requires all law students to satisfy an experiential learning requirement. Beginning this fall, the standard applies to all students entering as 1Ls.
For some students—and for some law schools—this new requirement may seem onerous. Not so for Fordham Law students or Fordham Law School. The School’s Clinical Legal Education program has for decades offered students a host of clinics, externships, and simulations. Recently Fordham Law clinic students have scored many victories: a $185,000 settlement for victims of broker fraud, the release of a Guantanamo detainee, and human rights training with LBGTI advocacy groups in sub-Saharan Africa. The program will only expand under the new leadership of professors Leah Hill and Michael W. Martin ’92.
Hill was recently appointed associate dean for experiential education while Martin has assumed the
title director of clinical education. Together they will be responsible for ensuring Fordham students graduate with real lawyering experience.
“In the first year of law school our students learn the habits of thinking that are unique to the legal profession. Our experiential programs provide them with the opportunity to apply those thinking habits to real-world problems,” Hill says. “In our live-client clinics in particular, students are able to put their critical thinking skills to use on behalf of real clients. We are committed to providing students with a range of experiential learning options that allow them to deepen their understanding of what it means to practice law.”
. . . . .
Continue reading here.
Wednesday, June 29, 2016
Twenty years ago, a woman successfully sued McDonald’s for the injuries she suffered from a hot coffee spill. Now, Starbucks is the defendant. From aol.com
According to the lawsuit, Katherine Mize claims that in 2014 a Starbucks barista dropped a 20-oz cup of joe on her while she was in the drive-thru. Mize claims she was handed her coffee and the lid wasn't on there right, spilling on her. The coffee allegedly cause second degree burns to the plaintiff's lap area. To add insult to injury, Mize claims Starbucks employees never offered any help.
You can read more here.
Tuesday, June 28, 2016
Due to a sudden retirement at UMKC, they're in the market for a legal skills prof to teach in their 1L program beginning this fall. At present, it's uncertain whether the school will be hiring a full-time prof or a part-timer as explained below in the job posting. You can contact Professor Nancy Levit at [email protected] for more info.
Here are the remaining details:
Due to an unexpected retirement, the University of Missouri-Kansas City School of Law is seeking to hire either a full- or a part-time visiting clinical faculty member to teach the first-year Lawyering Skills course, supervise student teaching assistants in the course, and collaborate with other faculty teaching in the first-year program. If we find it necessary to fill the full-time position, the successful applicant will teach two sections of Lawyering Skills I (3 cr. each) in the Fall as well as two sections of Lawyering Skills II (2 cr.) and an upper level writing course or other elective in the Spring. If instead we fill the part-time position, that will involve teaching one Section of Lawyering Skills I in the Fall and one section in the Spring and will require availability to teach two mornings weekly from August to December 2016 and January to April 2017, the maintenance of regular office hours, grading of several student written assignments throughout the semester and multiple individual conferences. Previous teaching of legal writing (either as a faculty member at any law school or as a teaching assistant in the UMKC program) is strongly preferred.
A J.D. and recognized expertise in writing in legal practice, as well as an understanding of and commitment to preparing law students for entry into the profession of law, are required. Salary will be commensurate with experience and qualifications.
A complete application must include a letter detailing desire and qualifications to teach, a curriculum vitae reflecting the highest degree earned and previous teaching, legal research and employment experience, as well as a list of at least three professional references. The letter should clearly indicate whether the applicant is seeking a part time or full time position or would consider either.
Application materials must be submitted online to UMKC Human Resources athttp://info.umkc.edu/hr/careers/. For questions about how to apply, please call (816) 235-1621, or if you are experiencing technical problems, please call (855) 523-0002.
If you need additional information, please contact Professor Nancy Levit at[email protected].
UMKC is an equal access, equal opportunity, affirmative action employer that is fully committed to achieving a diverse faculty and staff. The university will recruit and employ qualified personnel and will provide equal opportunities during employment without regard to race, color, religion, national origin, sex, sexual orientation, age, status as a protected veteran or status as a qualified individual with a disability. To request ADA accommodations, please call the Director of Affirmative Action at 816-235-1323. All final candidates will be required to successfully pass a Criminal Background Check prior to beginning employment.
The school is changing its name to the Houston College of Law. The schools says that the name change is “consistent with the law school’s strategic plan and is pivotal to its efforts to further distinguish itself regionally and nationally.”
But wait. Isn’t there another Texas law school with a similar name? From JD Journal:
Houston has another law school not to be confused with. Their crosstown rival, the University of Houston Law Center, is worried. In a statement they said, “The University of Houston is concerned about the significant confusion this creates in the marketplace and will take any and all appropriate legal actions to protect the interests of our institution, our brand and our standing in the communities we serve.”
You can read more here.
In fact, the University of Houston has filed suit against the Houston College of Law for infringing on its intellectual property (here).
Last week, I talked about some of the innovative classes at the University of Colorado. Following this up, here is a report written by the dean and a student concerning a roundtable on legal education reforms and how those reforms are being implemented at UC.
Law School Innovation by Phil Weiser and Bryce Wilson. A sampling:
"On January 4, 2016, as part of its ongoing commitment to exploring law school innovation, Silicon Flatirons brought together thought leaders from academia, private practice, in-house legal departments, and alternative legal service providers to evaluate what is known about this changing education model and what important work lies ahead. Prior discussions hosted by Silicon Flatirons grappled with different elements of the law school innovation opportunity and the “Law 2.0” movement more generally. For this session, in order to develop a foundation for a specific set of reforms to legal education, the Roundtable participants focused on ongoing research efforts and data-driven analyses."
"Law schools and legal professionals have traditionally failed—outside of grades—to articulate specific learning outcomes that predict professional success."
"The Roundtable participants analyzed four principal data sources. First, Alexia Brunet Marks and Scott Moss, Professors of Law at University of Colorado Law School, discussed their findings on holistic admissions and how new metrics can better predict who will succeed in law school. Second, Gallup presented research assessing which educational experiences lead to law school satisfaction and successful career engagement. Third, participants discussed data from the Educating Tomorrow’s Lawyers (“ETL”) initiative of the Institute for the Advancement of the American Legal System (“IAALS”) that focused on the importance of professional skills (as opposed to other competencies) to employers. Finally, Bill Henderson, Professor of Law at Indiana University Maurer School of Law, presented a competency model for how lawyers develop and how law firms should recruit and train lawyers."
"Nonetheless, despite growing evidence that professional skills matter significantly in determining success, too few programs train employees for such skills and too few employers seek to hire employees based on them."
" In short, the research presented and discussed below provides support for the importance of non-GPA-related factors in law school and post-graduation success. Given the importance of experiences that raise the level of professionalism, readiness, and trust with employers, law schools need to think hard about how to design the law school experience."
"This report proceeds in five parts. After this Introduction, Part II reviews the research noted above, highlighting which competencies are most significant in predicting success in law school and the workplace. Part III evaluates strategies for developing key competencies, and Part IV discusses the importance of an ongoing dialogue between law schools and employers. Part V offers a short conclusion."
With a changing legal landscape, the role of legal education needs to change. Unfortunately, many law schools remain locked into a traditional model that is starting to break under growing pressure. Advancements and innovations taking place at Colorado Law and elsewhere are an important phase in the process of bringing legal education in step with developments in the marketplace.
The promise of increased data collection and analysis about the critical competencies that best predict successful careers by law school graduates can point the way to data-driven innovations. The data discussed at the Roundtable suggests that law schools and employers can—and, in some cases, are starting to—determine value by using non-conventional indicators. As Henderson commented at the Roundtable, “It takes just as long to do selection badly as it does todo it well. So just do it well.” In the future, law schools will be able to innovate beyond admissions and developing competency-based learning pedagogies, thereby improving on their ability to select and prepare students for post-graduation employment. This process will take time, but over the next 5-10 years, those law schools and employers who move in this direction will be rewarded for getting out in front of a changing landscape."
Monday, June 27, 2016
Blog Rewind. From 2011l here’s another posting that our readers like and regularly access:
Five Methods of Legal Reasoning
- Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional distress (element 4), intentional infliction of emotional distress has taken place.
- Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present case.
- Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to toy poodles.
- Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present case so the rule in the precedent case should also apply to the present case.
- Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to both personal injury and property damage.
Update: ABA Publishing has issued my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals, which includes many exercises on the Five Methods of Legal Reasoning. It is available from ABA Publishing, Amazon, and many other outlets.
(Edwin Scott Fruehwald)
You can access the posting here.
Sunday, June 26, 2016
Blog Rewind: Because we have been posting daily since 2010, we have a rich archive. Our readers frequently explore the archive and find some favorites. Here is the posting that receives the most “hits”:
The other day, I posted a very helpful article of typing shortcuts. Please see below. Here's another one that comes in very handy for those who write law review articles and have to deal with large and small caps. Just type the relevant part of the citation, shade it with your mouse, and click Control+Shift+K.
To get out, just reclick that formula. Of course, none of this goes to the real question: Why in heaven's name do law reviews still use large and small caps?
Handy Keyboard Tricks for Word
A good way to increase your typing efficiency is to keep your hand off the mouse as much as possible. In an article on Attorney at Work, Deborah Savadra shows us how with a number of “Hotkeys.” Here are a few examples:
- Boldface: CTRL+B
- Italicize: CTRL+I
- Underline: CTRL+U
- Increase font size: CTRL+SHIFT+.
- Decrease font size: CTRL+SHIFT+,Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.You also can access this posting and readers’ comments by clicking here.
- Here’s one that she especially recommends:
Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.
You also can access this posting and readers’ comments by clicking here.
Saturday, June 25, 2016
Recently, we interviewed a candidate for a job, and I asked a question that I thought the candidate should have expected. The poor guy froze for almost 30 seconds. At the risk of stating the obvious, students applying for jobs should anticipate predictable questions and prepare responses to them. From JDJournal, here are five predictable questions:
- Tell me about yourself.
- Why are you interested in this job?
- Tell me about a problem you faced at work and how you handled it.
- How would your boss and coworkers describe you?
- Do you have any questions for me?
For guidance on answering these questions, please click here.
ABA threatened with 1-year suspension of law school accreditation powers by Stephanie Francis Ward.
"A Department of Education panel on Wednesday recommended that the ABA’s accreditation power for new law schools be suspended for one year, on the basis that the organization failed to implement its student achievement standards and probationary sanctions, while also not meeting its audit process and analysis responsibilities regarding students’ debt levels."
Friday, June 24, 2016
The AALS Clinical Section’s Technology Committee is gathering signatures to petition the AALS to establish this section. From Best Practices for Legal Education, here is a prospectus:
The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems. It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community.
The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering. The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.
You can read more here (May 24, 2016).
Thursday, June 23, 2016
ABA Journal: Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser
Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser.
"The ongoing discussion on the future of legal education all too often misses the opportunities for innovation and re-invention."
"At Colorado Law, we are working to engage a range of employers and to develop experiments—on both the curricular and extracurricular fronts—to help students build key competencies and a portfolio of skills that will be valued by employers, including those who traditionally never hired from law schools. This strategy, as explained in this report (PDF), led the two of us to work together to create new nontraditional real estate transactions courses that developed important competencies. The results of this collaboration provide important lessons for the way forward."
"The two new courses—Real Estate Transactions and Advanced Real Estate Transactions—underscore the range of opportunities open to law schools willing to experiment. These courses are important not only because they enabled students to learn through experiences with real-world situations, but also because they were designed to enable students to develop a number of valuable competencies, including how to work well in teams, learn from feedback, and approach their work with a positive attitude."
"In designing both courses, the starting place was that actual real estate deal documents and issues would be front and center. In the foundational class, students began developing the skills necessary to read a real estate transactional document effectively, including an understanding of how the various provisions of the document work together and an appreciation for how different document revisions and additions were necessary to advance the cause of their client."
"In the advanced class, students learned to take their burgeoning understanding of real estate deals to the next level by working on negotiation projects in teams. With respect to both classes, the goal was to build on the traditional “issue spotting” and critical thinking skill set developed in the first year and to focus on practical legal skills (drafting contracts), contextual knowledge (how real estate development works in practice), and professional skills (including working effectively in teams). In so doing, the courses helped students develop as more complete professionals and build key competencies sought after by employers."
"Through this class (and complementary efforts), Colorado Law students discovered the importance of professional skills (including emotional intelligence) that they might not have previously viewed as important to their success."
"The world of legal education needs to move beyond a traditional model that has never worked for many of our students. In that sense, today’s challenging environment for law schools is an overdue wake-up call to ask ourselves what competencies matter for our students—that is, what competencies will help them add value as lawyers, policymakers, and leaders—and how can we best teach and deliver those competencies. With a range of promising experiments in new curricular and extracurricular offerings (some prompted by the ABA’s call to articulate key competencies developed by law schools), there are compelling reasons to believe that a reimagined law school experience is a worthwhile alternative to simply shrinking down the traditional law school model."
Wednesday, June 22, 2016
In the June 2016 issue of the Michigan Bar Journal, attorney Kenneth Oettle offers sound advice on persuasive lawyering. To confirm his views, he asked his “polling group”:
The following answers are representative: (1) “use compelling facts, ordered clearly and rationally, that lead the reader to a moral judgment in your favor” (this answer comes very close to home base); (2) “provide good law”; (3) “tell the reader in the first three paragraphs why you should win”; (4) “use nouns and verbs” (as opposed to adverbs and adjectives, which are editorials); (5) “be concise”; (6) “sound authoritative”; and (7) “don’t bad-mouth the adversary.” This last item is more about what not to do, but in this age of incivility, a respectful, low-key brief is like a breath of fresh air and thus is likely to have affirmative persuasive value.
The article discusses these “tactics.” The take-away message:
The synergy of all these tactics produces clarity, which gets the point across and gives you credibility. If you are willing to be clear, then you probably aren’t hiding anything. Basically, you earn credibility by telling the truth clearly, crisply, and with conviction. The more credible you are, the more persuasive you are because courts need to rely on your presentation of facts, caselaw, and argument.
You can access the article here.
Tuesday, June 21, 2016
Ben Owens is a high school science and math teacher. Here are the highlights of his advice to new teachers. Needless to say, the advice applies to new and experienced law professors as well.
- Avoid, like the plague, teaching in isolation. Build a vibrant network of peers and then use it to share ideas, give and receive constructive criticism, and learn new ways to improve your teaching.
- Know what you are teaching, as well as your limits.
- Teach more than just the curriculum. Leverage your knowledge to teach the skills that students will need and be expected to use for the rest of their lives – even if they are not formally included in your curriculum.
- Know your students. It has been said that the three most important things to truly reach students are relationships, relationships, and relationships.
- Know & use teaching best practices. We know what works and what doesn’t. Student-centered classrooms, enabling technologies, inquiry-based instruction, problem and project-based learning are all examples of proven instructional methods that work.
- Be a visible leader for your students in and outside your school.
- Focus on continuous improvement.
- Be a role model to your peers – even as a new teacher.
- Find the balance.
- Lastly, share your story. Find that one thing that you love the most or that is working and share it. You can read more here.
Monday, June 20, 2016
From Jason H. Beehler at the blog of the Kegler Brown Hill & Ritter law firm:
Law school deans from all over the country have written an open letter to the Law School Admissions Council, expressing support for the University of Arizona, which recently began accepting law students based upon GRE scores rather than LSAT scores.
The row began earlier this spring, when Arizona made the decision to give applicants the option of taking the GRE instead of the LSAT, which is administered by the Law School Admissions Council. Upon hearing of Arizona’s plan, the Council warned Arizona in April that the school could be expelled from the Council’s network of law schools.
On Wednesday, May 4, nearly 150 deans of law schools all over the country (including those of Harvard and Yale) wrote a letter to Council president Daniel Bernstine, supporting Arizona’s “experiment” with admissions criteria, and expressing “great concern over LSAC’s threat to expel the University of Arizona Law School.”
You can read more here. As far as I know, studies suggest that grade point averages are better predictors than LSATs.
Sunday, June 19, 2016
In the June 2016 issue of The Transactional Lawyer, Stephen Sepinuck identifies the three types and focuses on contextual ambiguity. Here are the definitions:
Semantic ambiguity exists when a word or phrase has multiple meanings and more than one of those meanings could reasonably apply. One classic contracts case involved semantic ambiguity in the word “chicken”: was the term in an agreement between a domestic seller and a foreign buyer limited to only young birds suitable for broiling and frying or did it also include older – and less expensive – fowl, best suited for stewing?
Syntactic ambiguity arises from sentence structure, most frequently from the misplacement of a modifier so that it is unclear to what word or phrase a modifying word or phrase refers. For example, a settlement agreement that releases “all claims for the avoidance or recovery of transfers in the amount of $59,999.99 or less” is ambiguous: the specified amount might modify “claims” or “transfers,” and that distinction can matter if a single claim concerns multiple transfers.
Future articles in this series will return to these types of ambiguity and strategies for avoiding them. This article focuses on the third type of ambiguity: contextual ambiguity. Explaining Contextual Ambiguity Contextual ambiguity can arise in two distinct ways. First, it is created when two or more statements or clauses in the same agreement or in related agreements are inconsistent. For example, consider an agreement that calls for “payment of $75,000 in six monthly installments of $15,000.” Six payments of $15,000 will, of course, total $90,000. So, does the agreement require payment of $75,000 or $90,000?
The second method in which contextual ambiguity is created is through the juxtaposition of terms, so that the language of one affects the meaning of another. . . .
You can access The Transactional Lawyer here.
Saturday, June 18, 2016
I have often talked on this blog about humans' limited attention, and how students must focus their attention on the learning task to learn properly. In particular, I have mentioned that surfing the internet or texting during class causes students to miss most of what is going on in class. As this article demonstrates, cell phones can have even more serious consequences.
Our Cell Phones Are Killing Us by Maureen Callahan.
"According to the CDC, over 8 people are killed and 1,161 are injured each day in the US by distracted driving. Texting while driving is now the leading cause of teenage deaths in this country. Anecdotally, emergency rooms are seeing an uptick of injuries to “petextrians” — people who text while walking and have, say: run into a 300-pound bear (California, 2012), fallen into a fountain at the mall (Pennsylvania, 2011), or fallen on to train tracks (Pennsylvania, 2012)."
Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016)
Here is the introduction:
A granddaughter joins the family business as a partner. An entrepreneur
licenses his newest product. Two parties decide to settle a dispute. A
charitable idea materializes as a private foundation. A parent's belief in the
power of education is perpetuated by a trust agreement. Each of these
events forms a narrative. A transaction is more than the scratch of pens
across signature pages or the click of keys to email an executed document.
A transaction is itself a story. These stories, made with provisions and
clauses, result in the formation of contracts, agreements, and wills.
Conceptualizing transactions as narratives benefits the negotiation, drafting,
implementation, interpretation, and, ultimately, enforceability of the
Here is a passage from the article giving specific reasons for including narrative:
Once these misconceptions are removed, drafters can see yet another
benefit narrative techniques offer: opportunities and strategies to engage
clients. Narrative techniques further the attorney-client relationship by
promoting a closer examination of individual client goals and designing
documents to further those goals.21 It should be remembered that not only
the drafting but also the negotiation, implementation, interpretation, and
enforceability of a transactional document may benefit from
conceptualizing transactions as narratives. After all, at the heart of all
transactions is a client’s story.22 Deliberate use of narrative techniques in
the drafting of transactional documents acknowledges the presence of this
story and leverages its presence to further the intent of the parties.
You can access the article here.