Legal Skills Prof Blog

Happily Ever After: Fostering the Role of the Transactional Lawyer as Storyteller by Susan Chesler & Karen J. Sneddon

Happily Ever After: Fostering the Role of the Transactional Lawyer as Storyteller by Susan Chesler & Karen J. Sneddon.

Abstract

Transactional documents do more than allocate the risk of loss or select the governing law. Transactional documents, whether employment contracts or lease agreements, encapsulate the wishes, hopes, and fears of the transacting parties. The documents share a series of events, identify the key actors in those events, and anticipate particular outcomes or future events. In other words, the transactional documents are narratives. The transactional lawyer is thus more than a transactional intermediary. The transactional lawyer is the narrative agent or storyteller.

The “narrative” is often associated with the following words: story, tale, fiction, and entertainment. These associations may appear to have little in common with transactional documents. Yet, these associations do not reflect a full understanding of narrative. Dismissing the applicability of narrative to transactional documents also does not reflect a full understanding of the purpose of transactional documents and the role of the transactional lawyer.

To begin, this essay will define narrative and explain why transactional documents should be considered to be narratives. This essay will then explore the role of the transactional lawyer as a narrative agent and share five practical strategies to foster the role of the transactional lawyer as storyteller.

(Scott Fruehwald)

Cultivating Professional Identity and Resilience Through the Study of Federal Indian Law by Michalyn Steele

Cultivating Professional Identity and Resilience Through the Study of Federal Indian Law by Michalyn Steele.

Abstract

For purposes of this Essay, I consider how the doctrinal courses might contribute to the various professional formation learning outcomes. Specifically, I examine how one doctrinal course, Federal Indian Law, might serve as a representative model for ways of incorporating purposeful learning outcomes to foster the professional identity formation of law students. In Part II of this Essay, I argue that the study of Federal Indian Law presents an important opportunity to teach the principles of personal and professional resilience to law students.

(Scott Fruehwald)

Legal Research Demystified: A Step-by-Step Approach (Table of Contents and Chapter 5 on Research Plans) by Eric Voigt

Legal Research Demystified: A Step-by-Step Approach (Table of Contents and Chapter 5 on Research Plans) by Eric Voigt.

Abstract

Legal Research Demystified guides first-year law students through eight steps to research common law issues and ten steps to research statutory issues. It breaks down the research process into “bite-size” pieces for novice researchers, minimizing the frustration associated with learning new skills. Every chapter includes charts, diagrams, and screen captures to illustrate the research steps and finding tools. Each chapter concludes with a summary of key points that reinforces important concepts from the chapter.

The process of legal research, of course, is not linear. This textbook constantly reminds students of the recursive nature of legal research, and it identifies specific situations when students may deviate from the research steps.

Legal Research Demystified differs from existing research textbooks in several aspects. This textbook (1) sets forth eight methods to identify and retrieve relevant secondary sources; (2) contains a chart identifying binding cases in almost every situation (e.g., state law issue in federal court); (3) discusses in detail how to find cases by topic on Lexis Advance; (4) sets forth six methods to find cases that interpret and apply relevant statutes; (5) includes an entire chapter on confirming the validity of relevant statutes, determining effective dates, and identifying the text of all amendments; (6) has a chapter devoted to reading relevant statutes critically; (7) explains in detail the differences between using citators for cases and statutes; and (8) has three chapters on finding persuasive authorities for common law and statutory issues.

This book’s companion website, Core Knowledge, provides professors with multiple assessment tools. Students can answer true-false and multiple-choice questions on Core Knowledge to test their understanding of every chapter. Students will receive immediate feedback. Additionally, students can complete interactive research exercises on Core Knowledge. These self-grading online exercises walk students through the research steps on Westlaw and Lexis Advance, giving professors the option to “flip” the classroom.

(Scott Fruehwald)

U.S. News Specialty Rankings

Paul Caron has been listing the complete the U.S. Law News Specialty Rankings on the Tax Prof Blog.  For example, you can find the legal writing rankings here.

(Scott Fruehwald)

Registration info for ILTL summer 2019 conference

The Institute for Law Teaching and Learning Conference “Teaching Today’s Law Students” will be held June 3-5, 2019, at Washburn University School of Law in Topeka, KS.  You can register here.  As I've said before, ILTL conferences are the best place to learn effective teaching and assessment techniques.

(Scott Fruehwald)

Neil W. Hamilton, Connecting Prospective Law Students’ Goals to the Competencies that Clients and Legal Employers Need to Achieve More Competent Graduates and Stronger Applicant Pools and Employment Outcomes

Neil W. Hamilton (St. Thomas), Connecting Prospective Law Students’ Goals to the Competencies that Clients and Legal Employers Need to Achieve More Competent Graduates and Stronger Applicant Pools and Employment Outcomes

Abstract

"In changing markets for clients and legal employers, law schools that most effectively connect the goals of prospective and enrolled law students to the competencies that clients and legal employers need will be successful. Over time, a school that creates this type of effective bridge will benefit from a reputation both among legal employers and clients for educating highly effective graduates and among prospective students for helping them achieve their goals. All stakeholders benefit, but for faculty, stronger applicant pools and strong post-graduation employment outcomes in particular contribute greatly to the quality of the students and the school’s ranking and financial stability.

This article is the first to help faculty and staff make use of new data on the goals of undergraduate students considering law school and enrolled law student, the competencies that clients and legal employers want, and the learning outcomes that the law schools are adopting to design a more effective curriculum to help all the stakeholders to reach their goals. The article in Section II analyzes the growing empirical evidence on prospective law student and enrolled law student goals; in Section III, the article analyzes data on the competencies that legal employers and clients need, and in Section IV, the article examines the learning outcomes that the law schools are adopting as the schools move toward competency-based education required by the 2014 ABA accreditation changes."

(Scott Fruehwald)

Roberto L. Corrada, Chapter 12, 'Ill-structured' Simulations in Two American Law Classes: Labour Law and Administrative Law

Roberto L. Corrada, Chapter 12, 'Ill-structured' Simulations in Two American Law Classes: Labour Law and Administrative Law

Abstract

"In Legal Education, Simulation in Theory and Practice (2014) Professor Richard Grimes introduces Roberto Corrada’s chapter, Chapter 12. He explains, “Corrada suggests, perhaps slightly at odds with those who maintain that experiential learning cannot come too soon, that using the Socratic approach to instruction works reasonably well for novice law students in most American law schools. He says that whilst there may be ways to improve learning and teaching in the early stages of legal education, for the most part the more traditional methods appear to deliver what is needed, judging by student and law professor responses. However, he notes that by the time these same students enter the third year of law school, their motivation and energy are mostly gone and that teaching often suffers as a result.

Corrada suggests that as the students’ learning trajectory progresses, more active and collaborative strategies for effective learning are called for. He then demonstrates, in two disparate ‘upper-level’ law classes – labor and administrative law – how simulation can be used to revitalize student engagement. In one of the classes described, students organize a student union to bargain with the professor about the terms and conditions of the class. The benefits of this approach have been documented extensively elsewhere. In the other, the Michael Crichton novel Jurassic Park, serves as a factual platform for the student creation of a ‘biotech’ regulatory scheme. The students work in teams to draft legislation creating various mechanisms to control development and address the scenario that unfolds in the novel as if it were a real-world problem.

In this chapter, it is suggested that the specific active and collaborative learning interventions into the predominant lecture-style teaching models used in upper-level law school courses have met with measurable success. Indeed, Corrada says that research in the education field has shown the promise of such interactive learning methods. Drawing analogies from everyday learning, he suggests that knowledge is contextualized; that is, learners construct knowledge by solving complex problems in situations in which they use cognitive tools, multiple sources of information and other individuals as resources. The success of the educational constructivist model for complex decision making and problem solving makes it easily adaptable to law school, as demonstrated by the simulations discuss in this chapter."

(Scott Fruehwald)

Paul Caron: 2020 U.S. News Law School Peer Reputation Rankings (And Overall Rankings)

Paul Caron (Dean, Pepperdine), 2020 U.S. News Law School Peer Reputation Rankings (And Overall Rankings)

Dean Caron's approach gets rid of many of the problems in the U.S. News Rankings.

(Scott Fruehwald)

My absence from the blog

To our loyal readers who may have noticed I haven't posted for a while, it's because I suffered a pretty bad back injury about a month ago that's been so painful at times it's hard for me to sit in front of the computer for any length of time. The injury wasn't the result of a single incident but rather a perfect storm of several contributing factors in early February that has left me flat on my back most of the time and using a walker the rest of the time. I previously had back surgery in May, 2011 (6 months after finishing chemotherapy as the result of a cancer diagnosis - yes, that was a year that really sucked) for congenital spinal stenosis (a narrowing of the spaces in the spine that puts pressure on the nerves emanating from the spinal column). While this is usually a condition that afflicts elderly people, in my case I was born with smaller spaces between the vertebrae which got worse over time leading to seriously acute pain several years ago. But now the problem appears to be an additional stenosis coupled with age-related wear and tear on the spine, along with some bulging discs, the combination of which has lead to a veritable symphony of pain the likes of which I have never experienced in my life (and I'm someone whom doctors have said has a high tolerance for pain). Thanks to the infinite wisdom of my school's insurance plan, I was not eligible for pain relief treatment (like an epidural) until I first completed 4 weeks of physical therapy. That will happen later this week which means I can get my first epidural on Thursday. I'm sure hoping it works because I can't endure this much longer (among other things, I've lost about 8 to 10 lbs because the constant pain interferes with my appetite). The doctors will give the epidural a few tries but if that doesn't work, the next step is surgery (again) which I'd really like to avoid.   

Anyway, probably way more info than you care to know but I did want to explain my absence from the blog (a responsibility I take seriously) and why I'm not yet certain when I'll be back to blogging full time (even sitting long enough to do this short post makes my back throb). I especially want to thank my co-blogger Scott for holding down the fort during my temporary absence. 

To borrow the famous Schwarzenegger 80's movie-line, "I'll be back . . ." (but I don't know when).

Thanks for your patience and indulgence. 

(jbl)

Rhetorical Repetition by Patrick Barry

Rhetorical Repetition by Patrick Barry.

"When it comes to persuading judges, boardrooms, or even just co-workers, many lawyers shy away from repetition. They remain committed to the idea, often developed in college, that good writing is associated with having (and showing) a big vocabulary. They mistakenly think the best thesaurus wins. This essay explores that error and offers ways to correct it."

(Scott Fruehwald)

Digital Pro Bono: Leveraging Technology to Provide Access to Justice by Kathleen Elliott Vinson & Samantha A. Moppett

Digital Pro Bono: Leveraging Technology to Provide Access to Justice by Kathleen Elliott Vinson & Samantha A. Moppett.

Abstract

"I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."

Sound familiar? Although we pledge this when we stand in front of the American flag, hands over our hearts, all people do not have access to justice in the United States. While individuals have the constitutional right to legal assistance in criminal cases, the same does not hold true for civil matters. Low-income Americans are unable to gain access to meaningful help for basic legal needs. Although legal aid organizations exist to help low-income Americans who cannot afford legal representation, the resources available are insufficient to meet current civil legal needs. Studies show more than 80 percent of the legal needs of low-income Americans go unaddressed every year.

This article examines how law students, law schools, the legal profession, legal services' agencies, and low-income individuals who need assistance, all have a shared interest—access to justice—and can work together to reach the elusive goal in the Pledge of Allegiance of "justice for all." It illustrates how their collaborative leveraging of technology in innovative ways like digital pro bono services, is one way to provide access to justice. It discusses ABA Free Legal Answers Online, the program that the ABA pioneered to help confront the justice gap in the United States. The program provides a "virtual legal advice clinic" where attorneys answer civil legal questions that low-income residents post on free, secure, and confidential state-specific websites. The article provides a helpful resource of how law schools can leverage this technology to increase access to justice for low-income communities while providing pro bono opportunities for attorneys and students in their state.

(Scott Fruehwald)

Brian Leiter on the U.S. News Law Rankings

It is that one day of the year when Brian Leiter and I agree on something.  The new phone books are out.  I mean the U.S. News Law Rankings are out.

From The USNews.com roller coaster:

"As I've noted before, almost every change, for better or worse, in the USNews.com overall ranking has nothing to do with reality: it reflects moves to game the rankings either by the school doing better, or by one's immediate competitors for those schools that do worse."

In my opinion, the U.S. News rankings are the most pernicious thing to happen to legal education ever.  They have been driving the wrong behavior for years--both by law schools and law school applicants.

There is little chance they will end soon, so the best thing to do, as Brian Leiter noted, is to proclaim throughout the land "the overall ranking has nothing to do with reality."  Nothing!!!

(Scott Fruehwald)

 

Civil Pre-Trial Practice, 2019 Revised Edition by Neil Joel Dilloff

When I was in law school, we were taught nothing about how to handle a lawsuit.  It is encouraging that many law schools are now offering such courses.  In fact, a course in pre-trial civil practice covers most of what I did as a beginning attorney.  In other words, you can make law school graduates practice-ready.

Civil Pre-Trial Practice, 2019 Revised Edition by Neil Joel Dilloff.

"This new, updated handbook is a practical and handy resource that provides the “nuts and bolts” for handling a lawsuit from the initial contact with a potential client up to trial. It provides tips and checklists to help all litigators and is an easy-to-follow guide for relatively new civil litigators."

(Scott Fruehwald)

Are You A Nonconformist?

From Steven Pinker's twitter:

Reminds me of the president of a nontraditional college a while back who boasted (without irony), “Our students are nonconformists. They all have tattoos and piercings.”

(Scott Fruehwald)

Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice by Kathleen Elliott Vinson & Sabrina DeFabritiis

Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice by Kathleen Elliott Vinson & Sabrina DeFabritiis.

Abstract

“Houston, we have a problem.” In 1970, an explosion on board the Apollo 13 spacecraft’s flight to the moon damaged the air filtration system, causing carbon monoxide to build up in the cabin. The astronauts on board would be dead in mere hours if the system could not be fixed or replaced. NASA’s Mission Control in Houston, Texas called for engineers, scientists, and technicians to work with a set of materials identical to those on the spacecraft to build a filtration system under extreme time pressure. The result may have been ugly, inelegant, and far from perfect, but it saved the astronauts’ life. The Apollo 13 situation may be a dramatic example of problem solving, creativity, and completing a task under extreme time pressure with life or death consequences; however, lawyers also work in stressful environments, under time pressure, while juggling multiple tasks involving life, liberty, or millions of dollars. How do recent law school graduates perform when facing a time-sensitive task when the stakes are high, when they are accustomed from law school of having several weeks or more, with feedback along the way, to complete that type of assignment?

To prepare students for the bar exam and teach them the fundamental lawyering skills needed for legal practice, legal education should incorporate, into the law school curriculum, performance tests consisting of time-pressured assessments. While time-pressured performance assessments may push students out of their comfort zone, they are realistic to legal practice and necessary to help students develop the competencies needed for success on the bar exam and high-stakes legal practice, such as rapid cognitive processing, application, synthesis, and effective articulation. This Article offers such an initiative to help law students, law schools, and the legal profession. At a time of declining bar passage rates, the adoption of the Uniform Bar Exam, a majority of jurisdictions incorporating a Multistate Performance Test component, a competitive legal job market, and an expectation of practice-ready law graduates, the time is urgent to adequately prepare law students.

(Scott Fruehwald)

Symposium, Legal Education in Twentieth-Century America

Symposium, Legal Education in Twentieth-Century America, 87 Fordham L. Rev. 859-1031 (2018):

• Matthew Diller, Foreword, 87 Fordham L. Rev. 859 (2018)
• Robert J. Kaczorowski, Fordham University School of Law: A Case Study of Legal Education in Twentieth-Century America, 87 Fordham L. Rev. 861 (2018)
• Bruce A. Kimball & Daniel R. Coquillette, History and Harvard Law School, 87 Fordham L. Rev. 883 (2018)
• John Sexton, Subsidiarity and Federalism: The Relationship Between Law Schools and Their Universities, 87 Fordham L. Rev. 911 (2018)
• William E. Nelson, The Importance of Scholarship to Law School Excellence, 87 Fordham L. Rev. 939 (2018)
• Hon. Guido Calabresi, Developing Appropriate Standards for Achieving Diversity in Faculty Appointments, 87 Fordham L. Rev. 959 (2018)
• Robin West, Women in the Legal Academy: A Brief History of Feminist Legal Theory, 87 Fordham L. Rev. 977 (2018)
• Kenneth W. Mack, Second Mode Inclusion Claims in the Law Schools, 87 Fordham L. Rev. 1005 (2018)

Interestingly, none of these articles focus on the delivery of legal education. I guess how students were taught was not important in 20th-century legal education.

(Scott Fruehwald)

New Rubrics Available to Help Law Schools that Have Adopted Learning Outcomes Related to Professional Identity Formation

In recent years, many legal ethics scholars have demonstrated that the study of professional responsibility should cover more than the ethics rules: It should extend to helping students develop their professional identities.  Law schools need to help students create their inner lawyer.

Concurrent with the above change in approach, law schools have begun to employ learning outcomes to evaluate their programs.  Putting the two together, learning outcomes are important for assessing a law school's professional identity program.

New Rubrics Available to Help Law Schools that Have Adopted Learning Outcomes Related to Professional Identity Formation by Benjamin V, Madison, III.

"Rubrics are clearly a key part of assessing whether law students, by the time they leave law school, have attained skills, competencies, and traits embodied in a given school’s program learning outcomes. The Holloran Center for Ethical Leadership in the Professions created a database of program learning outcomes adopted by law schools."

"Associated with St. Thomas School of Law, the Holloran Center brought together two leaders in the professional formation movement, Professor Neil Hamilton and Professor Jerry Organ of St. Thomas Law, with faculty and staff from other law schools that have committed to pursuing professional identity formation as part of their law schools’ effort to produce complete lawyers. Like Professor Hamilton and Professor Organ and St. Thomas, these faculty, administrators, and staff–and their law schools–have demonstrated a commitment to the professional identity formation movement—a movement inspired by the 2007 publication of the Carnegie Report and of Best Practices in Legal Education. Recently, rubrics developed over the past year by working groups assigned to specific competencies were added to the Holloran Center web site, see Holloran Competency Milestones."

"The work of the Holloran Center, and of those of us on the working groups that developed these first rubrics will continue."

"In short, the law schools that adopted learning outcomes designed to produce lawyers who are not only legal technicians but whole persons are on the right track."

(Scott Fruehwald)