Legal Skills Prof Blog

Ghost Writing for Low Income People

Sometimes lawyers draft legal documents for people who can’t afford a lawyer and who are ineligible for legal services. The lawyer does not place his or her name of the document. Thus, “Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution.” In her article, Characterizing Ghostwriting, Deborah Lyn Basset discusses the ethics and the pros and cons of this practice. Here is the abstract:

It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution. Ghostwriting offers a practical contribution to the shortage of affordable legal services by increasing the number of individuals who are able to receive some, albeit limited, legal assistance. Despite its practical utility, ghostwriting implicates several ethical concerns, and courts have reached conflicting conclusions as to its ethical propriety. This Article, invited for the February 2015 St. Mary's Journal on Legal Malpractice and Ethics Symposium, analyzes the criticisms of legal ghostwriting and concludes that these concerns have been overstated; legal ghostwriting is consistent with the ethical rules.

You can access the article here. St. Mary's Journal on Legal Malpractice & Ethics, p. 284, 2015.  Good topic for class discussion.

(ljs)

"Designing a Transactional Law Clinic for Life-Long Learning"

This is a new article by Professor Patience Crowder (Denver) recently published at 19 Lewis & Clark L. Rev. 413 (2015) and available on SSRN here. From the abstract:

This article makes an important contribution to existing clinical scholarship generally, and, more specifically, to scholarship about transactional lawyering and transactional law clinics. It is one of the first articles to detail transactional clinic design and is particularly important as the number of transactional clinics continues to increase and more articles about transactional clinical scholarship are published. This article serves as a blueprint for the start or redesign of a transactional clinic. Drawing from the author’s start-up expertise, this article identifies the concepts that are unique to and essential for effective transactional clinic design. In addition to proposing best practices for transactional clinic design, this article focuses on the unique utility of transactional law clinics to teach professional development and identity to law school students — an articulated apprenticeship in the oft-cited 2007 Carnegie Foundation Report. The article demonstrates these points through an analysis of teaching law school students the reflective skill of self-regulated learning, which emphasizes for students the way they learn as opposed to what they learn.

(jbl).

Keeping Up on Legalized Marijuana

Marijuana law has to be a fertile field for interesting Legal Writing problems. You can keep up on developments at a weekly blog from the Seyforth Shaw firm: The Blunt Truth: The Week in Weed. You can access it here.

(ljs)

Teaching Visuals: The New Nutrition Labels

The Food and Drug Administration is offering us a chance to help students learn about using visuals. From the Jones Day law firm:

Effective July 26, 2016, FDA is amending its labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices. The results of this regulation will be very visible to consumers, since it will change the format and content of the familiar "Nutrition Facts" panel that appears on all packaged foods. The changes are intended to reflect new knowledge of nutritional science, to better reflect the amounts of food people commonly eat per "serving," and to better inform consumers to help them achieve nutrition and weight-loss goals. The new rules were publicized by an announcement from First Lady Michelle Obama.

The final rule: (i) updates the list of nutrients that are required or permitted to be declared; (ii) provides updated Daily Reference Values ("DRV") and Reference Daily Intake values ("DV") that are based on current dietary recommendations from consensus reports; (iii) amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women, and establishes nutrient reference values specifically for these population subgroups; and (iv) revises the format and appearance of the Nutrition Facts label. Some of these suggested changes include larger type calorie counts and serving sizes, and the declaration of the gram amount and percent DV of "added sugars" in a serving of a product. FDA stated the updated information is consistent with current data on the associations between nutrients and chronic diseases, health-related conditions, physiological endpoints, and/or maintaining a healthy dietary pattern that reflects current public health conditions in the United States, and corresponds to new information on consumer understanding and consumption patterns.

For a visual comparison of the old and new labels, please click here.

Students might compare the type size for different items and consider what information was omitted and what was excluded.

(ljs)

A good blog for aspiring legal writers

I recently stumbled upon a new (to me) blog called Word Counter Blog when a post called "How much writing do you have to do in law school?" turn up in my weekly news feed (the author correctly advises aspiring law students that it's not the length of the assignments in law school that's a killer but the time and effort required to hone and polish them).  A quick skim of a few, random posts since the blog was first launched in 2014 indicates it's definitely one lawyers and law students alike may want to regularly check-out since it covers many topics relating to both the process of writing as well as stylistic pointers. Pertinent posts include "How to find time to write" (hint: cut way on watching TV), "How to write a persuasive essay," "What is an average typing speed?" "How many words are there in a 10 minute speech?" and "What is the best font for a business proposal?"

Check out Word Counter Blog here.

(jbl).

Plagiarism Allegations Aren’t Limited to Schools

Consider this law suit:

It might be too late for Justin Bieber and Skrillex to say “Sorry.”

The duo has been sued over their No. 1 hit over alleged copyright infringement, according to court documents acquired by EW. Singer-songwriter White Hinterland, whose real name is Casey Dienel, claims “Sorry” infringes the copyright of her 2014 song “Ring the Bell.” Warner-Tamerlane Publishing Corp. and Universal Music are also named in the suit.

You can read more here at Entertainment.

I’m wondering how a scenario like this could be used in a Legal Writing problem. Students might be intrigued by having to distinguish two songs and investigating the tests that courts use.

(ljs)

How Familiar are We and Our Students with the Digital Economy?

The Pew Research Center provides interesting information.

A national Pew Research Center survey of 4,787 American adults – its first-ever comprehensive study of the scope and impact of the shared, collaborative and on-demand economy – finds that usage of these platforms varies widely across the population. In total, 72% of American adults have used at least one of 11 different shared and on-demand services. And some incorporate a relatively wide variety of these services into their daily lives: Around one-in-five Americans have used four or more of these services, and 7% have used six or more.

At the same time, around one-quarter of Americans (28%) say they have not used anymajor shared or on-demand platforms, and many are wholly unfamiliar with the tools and vocabulary of the new digital economy. For instance, 15% of Americans have used ride-hailing apps like Uber or Lyft, but twice as many have never heard of these apps before. Similarly, 11% of Americans have used home-sharing platforms like Airbnb or VRBO, but roughly half have never heard of home-sharing sites. In addition:

• 61% of Americans have never heard of the term “crowdfunding.”
• 73% are not familiar with the term “sharing economy.”
• 89% are not familiar with the term “gig economy.”

For the full study, please click here. For what it’s worth, my San Francisco daughter regularly uses Uber. I never have. Her artist friend successfully used crowdfunding to send his invited art piece and himself to a European exhibition. I have contributed to a crowdfunding effort. I have never heard the term “gig economy.”

(ljs)

An Active-Learning Approach to Teaching Personal Jurisdiction

An Active Learning Approach to Teaching Tough Topics: Personal Jurisdiction as an Example by Cynthia M. Ho, Angela Upchurch, & Susan M. Gilles.

Abstract:     

"This article illustrates how an active-learning approach to teaching and learning tough topics is beneficial for students and teachers alike. Personal jurisdiction is used as an illustrative tough topic, although the recommended strategies can be adapted for use in any course. The article focuses on how the authors have effectively enhanced student learning of personal jurisdiction at three different schools by providing context to personal jurisdiction and adopting active-learning exercises before, during and after class. Context is provided with guided reading of key cases, as well as videos. Active-learning exercises involve a variety of methods, including interactive questions and explanations before, during and after class; these include “clicker” questions as well as questions that can be done as part of a quiz on TWEN. The article provides specific steps for implementation that can be used by faculty teaching with any casebook at little to no cost and with varying degrees of technical intervention. The article also provides practical strategies drawn from the authors’ experience teaching personal jurisdiction, as well as challenging topics in other courses.

Samples of some of the materials used by the authors are included in the Appendix."

 

This is an excellent article, and its techniques can be applied to teaching many other topics.  As the authors point out, this approach is a cost-effective way to bring active learning into the doctrinal classroom.

 

(Scott Fruehwald)

Are online law schools the wave of the future?

Professor Jeffrey Van Detta (John Marshall - Atlanta) thinks so as he explains in this just published article entitled The law School of the future: How the Synergies of Convergence Will Transform the Very Notion of "Law Schools" During the 21st Century from "Places" to "Platforms" available at 37 U. La Verne L. Rev. 103 (2015). From the introduction:

What will law schools be like ten years from now? Twenty? How about at mid-century--i.e., in the year 2050? Some have been inspired to approach this question from a perspective of a dystopian future. Rather than assume catastrophe, others have tried to visualize how legal education-- almost moribund in its basic approach after the innovations of Dean Langdell at Harvard in the 1870s--is responding to the “disruptive change.” That “disruptive change” results from three principal sources. First, “disruptive change” is being produced by rapidly proliferating computer and virtuality technologies applied in graduate education. Second, “disruptive change” arises from the evolution of the students themselves. New generations of law students have grown up in a cyber-crucible of virtual reality that I choose to call “virtuality.” Third, law practice itself is poised to enter upon a new age in which the virtual law office becomes an increasingly common choice for law-school graduates, as well as more experienced attorneys reinventing their law practices, and the judicial system itself embraces video conferencing as an increasingly attractive solution to a number of persistently intractable problems.

 

I have been inspired to ask--and respond--to the question of how legal education will evolve in the future by the excellent interchange I was privileged to have with Professor Dr. Feridun Yenisey, one of Turkey's great legal scholars. Professor Dr. Yenisey and I were members of a panel at the international conference Legal Education In The 21st Century, May 5-8, 2014, in Istanbul and Ankara, Turkey, co-sponsored by Bahçesehir Üniversitesi, Atlanta's John Marshall Law School, and the Union of Turkish Bar Associations. During my portion of the panel in Ankara, I presented my paper on programs delivered via the Internet for foreign-educated lawyers to study aspects of American law in dialogue with American professors, lawyers, and law students-- particularly the Global Forum for American Legal Studies at my home Institution. During the question and answer session, a Turkish colleague in the audience asked about the future role of online legal education and whether purely online legal education was tenable. Not only is entirely online legal education tenable--indeed, it has been done successfully in the United States since 1998 by Concord Law School--it is the future. I then hazarded a prediction for the next meeting of this particular conference at Bahçesehir Üniversitesi, presumably in the 2020s:

 

Law schools will no longer be ‘places' in the sense of a single faculty located on a physical campus. In the future, law schools will consist of an array of technologies and instructional techniques brought to bear, in convergence, on particular educational needs and problems.

 

This paper elaborates on that prediction. In so doing, I share a happy discovery that I made as I was contemplating the present article.

 

In 1994, Robin Widdison--at that time the Director of the Centre for Law and Computing at the University of Durham in England--published a brilliant, visionary article, entitled Virtual Law School. In that article, Dr. Widdison presented a prophetic description of “the central role that information technology will undoubtedly play in law schools of the future,” providing a “science[-]fiction style” narrative, worthy of a Ray Bradbury, in which he presents a “futuristic” portrait of what a 21st century law student's life and studies would be like in a generation hence. While Dr. Widdison is now happily retired from Durham, his ideas live on. They convey an even greater persuasive power today than they had twenty years ago. I shall quote liberally from Dr. Widdison's article, because it illustrates precisely the kinds of “synergies of convergence” in applying technology to educational activities that I predict will make the law school no longer a place, but rather, a platform, unfettered by the bonds of time and physical space.

(jbl).

Could Apple Go the Way of Blackberry?

From Marco.org:

When the iPhone came out, the BlackBerry continued to do well for a little while. But the iPhone had completely changed the game — it changed what smartphones were for, from basic business-focused email devices to entire consumer personal computers with desktop-class operating systems and rich app ecosystems. . . .

Today, Amazon, Facebook, and Google are placing large bets on advanced AI, ubiquitous assistants, and voice interfaces, hoping that these will become the next thing that our devices are for.

If they’re right — and that’s a big “if” — I’m worried for Apple.

Today, Apple’s being led properly day-to-day and doing very well overall. But if the landscape shifts to prioritize those big-data AI services, Apple will find itself in a similar position as BlackBerry did almost a decade ago: what they’re able to do, despite being very good at it, won’t be enough anymore, and they won’t be able to catch up.

You can read more here.

(ljs)

What’s Wrong with Bar Exams?

At a recent gathering of law deans, Dean Darby Dickerson (Texas Tech) identified the deficiencies:

Dean Dickerson also identified a number of problems with the bar exam: excessive emphasis on memorization (which doesn’t accurately reflect the practice of law, where you look things up); testing too many topics (when lawyers need to know just a few); insufficient emphasis on lawyering skills (although some bars are improving on this front); insufficient portability from state to state (although the spread of the Uniform Bar Exam could help); not letting people take the bar until after graduation (but note the Arizona pilot program); and the high cost of bar exam prep courses.

You can read a lot more on the concerns of law deans here, at Above the Law.

(ljs)

From law school incubator to virtual law firm

This story about B-52s frontman Fred Schneinder's trademark battle with Monster energy drink mentions that he's being represented (actually it's his friend who's been threatened with a lawsuit) by a virtual law firm that grew out of an intellectual property incubator clinic at Suffolk U. School of Law in Boston. Mr. Schneider, who had an 80's hit with the song "Monster," licensed his name and likeness to a buddy who's selling "Monster" coffee beans. Well, the energy drink company that goes by the same name didn't take too kindly to that so it sent Mr. coffee beans a cease and desist letter. A few paragraphs down into the story, the reporter mentions that the recipient of the cease and desist letter is being represented by a "virtual" law firm headed up by the former director of Suffolk's Intellectual Property and Entrepreneurship Clinic, Eve Brown. Not only that, but Ms. Brown has hired a bunch of former Suffolk law grads (and clinic participants) who now work for her as independent contractors. Hence we have a very nice example of an incubator project leading to some pretty great opportunities for the school's recent grads. Ms. Brown explains in the article that her firm charges a flat rate of $100k for trademark litigation through trial and that former Suffolk clinic participants working for her get to keep 80% of what they bill. Sounds like a win-win for all concerned. Here are more details about the lawsuit and Ms. Brown's new virtual law firm from Law.com:

In 'Monster' Case, B-52s Frontman Gets Help from Startup Law Firm

 

“Monster” is not Fred Schneider’s biggest hit. That would be the B-52s frontman’s dance-floor staple “Love Shack.”

 

But “Monster,” a catchy tune off his 1984 solo record Fred Schneider and the Shake Society, enjoyed a following on the 1980s club circuit and earned the distinction of being among the first music videos banned from MTV. (Do yourself a favor and watch the video.) All of which is to say that Schneider didn’t anticipate any trademark issues when he partnered with a Florida coffee roasting company to offer Fred Schneider’s Monster Blend. After all, the coffee bears his name and the title of a song he wrote more than 30 years ago.

 

Then came the April 15 cease and desist letter from lawyers working for Monster Energy Co. to Ric Coven, founder of Breyting Community Roaster and longtime friend of Schneider, arguing that the use of “Monster” in the coffee’s name runs afoul of the energy drink maker’s trademark.

 

“When Ric told me, I was like, ‘Well they can’t do anything! It’s a common word!’ ” Schneider said in a phone interview on Tuesday. “They can waste all the money they want!”

 

Coven also laughed the letter off as completely ridiculous, but got serious when a friend tipped him off about Monster’s aggressive trademark practices. (Trademarkia.com named the company the top “trademark bully” of 2014).

 

Monster’s attorney at Knobbe, Martens, Olson & Bear did not respond to requests for comment.

 

Coven’s next step was to reach out to Bricolage Law, a four-month-old, flat-fee virtual law firm co-founded by attorney Eve Brown, who previously faced off against Monster and won when she was directing Suffolk University’s Law School Intellectual Property and Entrepreneurship Clinic. The clinic represents small businesses and startups in trademark disputes and other business matters, and scored victories before the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board against both Monster and apparel giant Nautica Retail USA Inc. in the past year.

 

“I keep in touch with graduates who went through the clinic and a couple of them were sitting around with me and said, ‘We wish we could do the clinic for the rest of our lives,’ ” Brown said. “And I thought, ‘We can!’ ”

 

Brown is leaving academia this month to run Bricolage full time from her home with the help of a small group of recent Suffolk Law graduates who work as independent contractors and take home 80 percent of what they bill. The work is appealing, said 2015 Suffolk graduate Kevin Jarvis, as is the flexibility Bricolage provides. “The primary reason I’m trying to build this is that I don’t want to do the standard 80 hours a week in your first year,” he said. “This is a way to make a difference for people and still be able to enjoy my life.”

. . . . 

Continue reading here.

(jbl).

Do Students Need a Background in the Arts and Humanities?

Recently, a friend who teaches undergraduates and I had a conversation on how little background our students had in the traditional arts and humanities. The question arises: so what if they don’t have this background? John Simon, president of Lehigh University offers an answer:

Students need an education that prepares them for success in professional and civic life. The world needs citizens who possess the creativity, civic learning, communication skills, and critical thinking that the arts and humanities provide, so they can take on the task of solving an increasingly complex set of challenges.

This quote comes from a brief article in the Chronicle of Higher Education (here—but you may need a subscription). You can find the article in hard copy in the May 27, 2016 issue.

I add that the arts and humanities teach us about the human condition, essential knowledge to succeed professionally and in our personal lives.

(ljs)

Shakespeare’s Macbeth & the Historical Macbeth

For those interested in storytelling, the British Museum’s website tells us what we know of the historical figure and the history of the Bard’s play. Shakespeare’s tale is more interesting. You can access the website here.

(ljs)

No Handshakes at Harvard Law Graduation

From the National Jurist:

The school is battling a rampant mumps outbreak. As such, graduation ceremonies will go on as planned, but no handshaking will be allowed as new J.D.’s receive their diplomas Thursday.

“A courteous head nod will take the place of handshake,” Dean Marcia Sells wrote to graduates, as reported by Above the Law. 

Hand sanitizer will also be available this week for all graduates, families and guests.

You can read more here.

(ljs)

How legal apps are changing the practice of law

From the New York Times:

Legal Aid With a Digital Twist

 

Matthew Stubenberg was a law student at the University of Maryland in 2010 when he spent part of a day doing expungements. It was a standard law school clinic where students learn by helping clients — in this case, he helped them to fill out and file petitions to erase parts of their criminal records. (Last week I wrote about the lifelong effects of these records, even if there is no conviction, and the expungement process that makes them go away.)

 

Although Maryland has a public database called Case Search, using that data to fill out the forms was tedious. “We spent all this time moving data from Case Search onto our forms,” Stubenberg said. “We spent maybe 30 seconds on the legal piece. Why could this not be easier? This was a problem that could be fixed by a computer.”

 

Stubenberg knew how to code. After law school, he set out to build software that automatically did that tedious work. By September 2014 he had a prototype for MDExpungement, which went live in January 2015. (The website is not pretty — Stubenberg is a programmer, not a designer.)

 

With MDExpungement, entering a case number brings it up on Case Search. The software then determines whether the case is expungeable. If so, the program automatically transfers the information from Case Search to the expungement form. All that’s left is to print, sign and file it with the court.

 

In October 2015 a change in Maryland law made more cases eligible for expungement. Between then and March 2016, people filed 7,600 petitions to have their criminal records removed in Baltimore City District Court. More than two-thirds of them came from MDExpungement.

 

“With the ever-increasing amount of expungements we’re all doing, the app has just made it a lot easier,” said Mary-Denise Davis, a public defender in Baltimore. “I put in a case number and it fills the form out for me. Like magic.”

 

The rise of online legal forms may not be a gripping subject, but it matters. Tens of millions of Americans need legal help for civil problems — they need a divorce, child support or visitation, protection from abuse or a stay of eviction. They must hold off debt collectors or foreclosure, or get government benefits.

 

Continue reading the main story

 

They often have to fight these battles on their own because — despite the fact that civil cases can result in people going to jail, or losing a house, health care or custody of their children — they don’t have the right to a lawyer, as defendants in criminal cases do. Four out of five people who need a civil legal aid lawyer don’t have one.

 

. . . . 

 Continue reading here.

(jbl)

Thirty Questions to Help Students Find Meaningful Employment and Develop Professionally

This article does not contain a list of top thirty obvious questions. Rather, it offers a thoughtful, analytically solid discussion of topics that a student needs to reflect on. Neil Hamilton & Jerry Organ, Thirty Reflection Questions to Help Each Student  Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation)

For example, here are questions for a student considering starting law school:

1. What are your strengths?
2. What are the characteristics of your past work/service experiences in which you have found the most meaning and positive energy? Are there particular groups of people whom you have served from whom you have drawn the most positive energy in helping them? What specific strengths and competencies were you using in this work or service?
3. How do you self-assess your trustworthiness in the past to help others on important matters? How do others who know your past work/service assess your trustworthiness?
4. Looking at the competencies that clients and legal employers want, how do you self-assess what are your strongest competencies? How do others who know your past work/service assess your strongest competencies?
5. How do your strengths and strongest competencies match up with the competencies that legal employers and clients want?

You can read more here.

(ljs)

Proprietary Law Schools and the Marketization of Access to Justice by Riaz Tejani

Proprietary Law Schools and the Marketization of Access to Justice by Riaz Tejani.

Abstract:     

The rise of for-profit law schools in the United States highlights the interplay of political and moral economy in the reproduction of legal expertise. This article offers ethnographic evidence from one ABA-accredited for-profit law school pseudonymously labeled New Delta School of Law. The article posits New Delta as a case study in market fundamentalism of the kind first theorized by Hungarian economist Karl Polanyi. Polanyi defined global capital as a “double movement” between free marketeerism on the one hand and countervailing social protectionism on the other. Treating this as incomplete, social philosopher Nancy Fraser has since argued that the emancipatory new social movements form a third element in what should more properly be considered a “triple movement.” In this article, I argue that for-profit law schools such as New Delta support Fraser’s revision. Drawing in capital commitments from large institutional investors with promises of high returns on the basis of guaranteed federal student loan dollars, New Delta recruits disproportionately from minority and low-income communities while offering low chances of bar passage and legal employment. By marrying free marketeerism with the discourse of emancipation, the school has successfully evaded scrutiny.

(Scott Fruehwald)

Can You be Fired for Being Too Attractive?

In New York City, the answer is yes. From the ABA Journal online:

Attractive women are not a protected class under employment laws, even the expansive laws in place in New York City, the New York Law Journal reported Friday.

Dilek Edwards had sued her former employer for gender discrimination, alleging she was fired because her boss, Stephanie Adams, was concerned that her husband found Edwards attractive.

Edwards was hired as a yoga instructor and massage therapist by chiropractor Charles Nicolai. She says their relationship was strictly professional, and she had met Adams—Nicolai’s wife and co-owner of the practice—on one occasion. That encounter was cordial, Edwards says.

More than a year after Edwards started the job, Nicolai told Edwards his wife might be jealous because Edwards was “too cute.” Four months later, Adams sent Edwards a text telling her she was no longer welcome at the business and to “stay … away from my husband and family. And remember I warned you!”

You can read more here.

(ljs)

Legal sector shows only modest job growth in May

The Bureau of Labor Statistics has released the employment figures for May showing that the legal sector gained a modest 100 jobs last month.  Though the BLS originally reported that 1500 jobs were lost in the legal sector during the month of April, this new report indicates that the number has now been revised up to reflect only 600 jobs lost.  

Bloomberg BNA has some additional stats concerning job growth in the economy at large here.

(jbl).