Legal Skills Prof Blog

What Can Art Teach Law?

Can art impart insights that inform law—and impart them in telling ways? In a very creative article, On Portraying Human Dignity (here), Christopher McCrudden focuses on a painting that I have always found magnificent and haunting: Las Meninas by Velasquez .

 

The author discuss the various individuals to explore differing ideas of what “dignity” means to each of them. What does his analysis have to do with law?

On this reading, what Las Meninas provides, ultimately, is an experience which encourages us to ‘share the ethical framework’ of other people, as Anil Gomes suggests great art may do. In doing so, it seems a near perfect medium for better understanding the current dilemmas and debates over dignity; for in experiencing the painting we are pointed to the importance of what

Murdoch called ‘unselfing’, ‘the capacity to go beyond the personal prejudices arising from

my own ego’. It inculcates a capacity for standing in another person’s shoes, a capacity that

is at the core of reflexivity, the ‘perception of other as individual’ It is not unique in doing

this, but it is nevertheless important, particularly when words that provide the language for

expressing that perception begin to lose their power to move us, as threatens to be the case

with ‘dignity’.

As our community begins a thoughtful discussion on the use of visuals in law, Las Meninas takes us to a new level.

(ljs)

Career Advice for Law Students and New Lawyers: A Roundtable Discussion

The new issue of the ABA's Law Practice Today webzine has a great roundtable article chockful of great career advice for law students and new lawyers. Wendy Werner put together the article, called "Career Advice for Law Students and New Lawyers: A Roundtable Discussion." Contributor's include Kathleen Brady, Nancy Caver, Grover Cleveland, and Legal Skills Prof Blog's own Dennis Kennedy. 

Topics include job search tips, what to do if you initially can't find a job, learning to network, dealing with debt, and considering the option of opening your own firm. It's very high-quality advice, presented in an accessible and conversational style. A must-read.

(dk)

Nuclear Power Plants

The enormous tragedy in Japan highlights the dangers of nuclear power. Although serious nuclear incidents do not occur very often, they do occur. And when they do, the incidents can have major repercussion. A few decades ago, I worked to stop nuclear plants in the United States. Now, living fairly close to Three Mile Island, I remain sensitive to the dangers. Last year, I wrote a brief memoir on my work on the subject. “Stopping Nuclear Power Plants: A Memoir,” 21 Villanova Environmental Law Journal 35 (2010).

(ljs)

The Importance of Maintaining Your Credibility

“Credibility’s Power: Appellate Lawyers Should Be Forthright in Addressing Their Cases’ Weaknesses” is the title of Pennsylvania attorney Howard Bashman’s article in the January 18 edition of the Legal  Intelligencer. The article also appears on his blog  http://howappealing.law.com  Mr. Bashman writes:

 From the perspective of the judges, an appellate advocate who was unwilling or unable to address and perhaps even neutralize apparent weaknesses in his or her client's case probably lacks the ability to assuage the judges' concerns about thoseweaknesses. Thus, far from helping their client's case by engaging in a game of dodge ball with the judges, the advocate is instead sending the signal that no response helpful to the client's position exists.

 Of course, by the time an appeal reaches oral argument, the judges assigned to decide the case may already have developed firm views about the case and how the appeal should be decided. Those pre-argument views will be based on the appellate judges' examination of the briefs filed on appeal, the trial judge's opinions, and important portions of the record developed in the trial court.

 The manner in which a party's appellate briefs depict the facts of the case, what happened before the trial court, and the applicable law will play perhaps the most important role in establishing that party's, and the advocate for that party's, credibility before the appellate court. In the same way that the lawyer who evades difficult questions at oral argument is likely to be viewed by the judges as evasive, a party whose appellate brief resorts to misrepresenting the facts and the law is unlikely to convey to the appellate judges that the party has a strong likelihood of prevailing on appeal.

 One might think this advice is old hat and unnecessary today. However, Mr. Bashman , an accomplished appellate lawyer, states that he repeatedly runs into briefs from highly respected firms that misrepresent the case law. Maybe we need to remind our students of the fine line between zealous advocacy and excessively zealous and unprofessional advocacy.

(ljs)

Professionalism & Ethics in Today's Technology

 In its September/October issue, “The Bencher,” the magazine of the American Inns of Court, published several helpful articles on the subject. Here are the articles available to the public online:

• Complex Ethical Issues of Social Media
• Transparency in E-Discovery: No Longer a Novel Approach
• Cloud Computing—Panacea or Ethical “Black Hole” for Lawyers
• Electronic Discovery and Social Networking Sites
• Judicial Ethics, The Internet, and Social Media

Here is the link that will lead you to the articles.

In case you are unfamiliar with the American Inns of Court, here is a brief description:

American Inns of Court (AIC) are designed to improve the skills, professionalism and ethics of the bench and bar. An American Inn of Court is an amalgam of judges, lawyers, and in some cases, law professors and law students. Each Inn meets approximately once a month both to "break bread" and to hold programs and discussions on matters of ethics, skills and professionalism.

The membership is divided into “pupillage teams,” with each team consisting of a few members from each membership category. Each pupillage team conducts one program for the Inn each year. Pupillage team members get together informally outside of monthly Inn meetings in groups of two or more. This allows the less-experienced attorneys to become more effective advocates and counselors by learning from the more-experienced attorneys and judges. In addition, each less-experienced member is assigned to a more-experienced attorney or judge who acts as a mentor and encourages conversations about the practice of law.

For more information, please visit www.innsofcourt.org

(ljs)

What They Didn't Teach You in Law School

D.C. attorney Anna Lee Negroni offers 25 suggestions on developing “soft skills” (behavioral traits) that successful lawyers have.  They range from “study the leadership of  your firm”  to “attitude is everything.” From the December 2010 issue of the Washington Lawyer.

I would add: “The things you got away with in law school you can’t get away with any more.” For example, forget about handing in assignments late, turning in assignments that aren’t your best work, and employing sarcasm. Students need reminding that the law office culture has different rules that the law school culture.

(ljs)

Thoughts on Thinking Like an Outline

A primary message we send to students is that they should write in outline form. We encourage them to organize their notes in outline form. We insist that they draft briefs, memos, and other documents in outline form. For some, thinking and writing in outline form comes easily. For others, they think and organize differently. In the end, however, they must translate their documents into outline form.

 I have no objections to this instruction. I also insist that my students produce documents that conform to an outline. Recently, however, I realized that many of their readers, particularly decision makers, including judges, do not naturally think in outline form. Their natural reasoning process may require flow charts or organizational models that look like puzzles. Thus, for these decision makers, we insist that they think like outlines.

 The question then arises, how do we best communicate with decision makers who do not think like outlines, especially when we really don’t know which ones think like outlines and which do not? I don’t have an answer to this question. Perhaps, because I naturally think like an outline, I am not the best person to come up with an answer. Our blog permits readers to post comments. If you have thoughts on the subject, I hope you will share them.

(ljs)

Declining Representation: What Next?

Suppose that you or your clinic decide not to represent a client. Are there actions you should then take? On the Utah Bar Journal blog last September, Keith Call offers three pieces of advice:

1. Keep confidences if you decide to represent an adverse party. See Rule 1.18 of the Rules of Professional Conduct, which identifies a potential client as a “prospective client").

 2. Send a declination letter (new word for me) to protect yourself from any confusion.

 3. Keep track of prospective clients in your conflict base.

(ljs)

Words with No Place in Plain English

At plainlanguage.com you can find a “Bathetic Word  List,” consisting of words that have  no place in clear, effective communication. This list of about 500 words may humble those of us who champion plain English, but still use a great many of these words. This list is a bit more inclusive than my list would be, but still worth pondering.

(ljs)

AALS Joint Program on Clinical Law and Poverty Law Sections

On  Saturday, January 8, 2011, The AALS Sections on Clinical Legal Education and Poverty Law  will present a session entitled “Fostering Justice and Public Service: Preparing Students to be Active Participants in Developing the Law, Legal Processes, and Legal Systems." Here is the line up of speakers:

• Jessica K. Steinberg (Associate Professor of Clinical Law, George Washington) presenting “In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services”
• Douglas Colbert (Professor, Univ. of Maryland) presenting “Prosecution without Representation”
• Linda F. Smith (Professor, Univ. of Utah) presenting “Fostering Justice Throughout the Curriculum”
• Deborah Weissman (Professor, Univ. of North Carolina ) presenting “Redefining Human Rights Lawyering Through the Lens of Critical Theory: Lessons for Pedagogy and Practice,” coauthored by Davida Finger (Assistant Clinical Professor, Loyola Univ. New Orleans), Caroline Bettinger-Lopez (Associate Professor of Clinical Legal Education, Univ. of Miami), Meetali Jain (Project Director for the South African Youth Constitutional Literacy and Service Project, Univ. of Cape Town), JoNel Newman (Associate Professor of Clinical Legal Education, Univ. of Miami), and Sarah Paoletti (Practice Associate Professor of Law, Univ. of Pennsylvania).

Juliet Brodie (Stanford) will moderate. The resulting papers will be published in the Georgetown Journal on Poverty Law and Policy.

(thnx to the Poverty Law blog.)

(ljs)

Writing for Scholarly Publication

Here is a  message that I sent on a listserv. It may be helpful to folks  who are writing for scholarly publication.

The standard learning is that late February/the beginning of March is the best time to submit an article. Law reviews usually elect new officers in late February and start selecting articles for the coming year. They tend to fill up the next year's issues almost completely within the next 6 weeks. Still, they often leave some openings for especially attractive submissions that come in later.

 Specialized journals often wait until later in the spring or until late August to make selections, feeling that they will get what the general, main journals have not chosen. Some general journal also wait until late August.

 Some journals have "rolling admissions" or set their own individualized calendars. The journals published by LWI and ALWD fall in this category. Many journals have information on their websites.

 For most journals, the best and most efficient way to submit to a large number of journals is via expressO, which enables multiple electronic submissions. Talk to someone at your school who can explain and show you the ropes. Some journals prefer that you submit manuscripts to them electronically through their own systems. Again, you can find out more on their websites.

 If you are seeking publication in a general journal. please be aware that the competition is fierce and the selection process is in the hands of inexperienced students. Therefore, you must submit to a large number of journals--I think at least 50.

 Finally, please keep in mind the LWI Writers Workshop, which can help you get your manuscript together. Those who have attended have found it helpful, and most have been published. This summer, we are planning to hold the workshop before or after the Storytelling Conference in Denver in early July. We will send out  notices in the early spring.

My practical advice: If you are planning to devote major time to writing this coming summer, start collecting  your research now. You can research and start outlining in relatively small  blocks of time. Then you can hit the ground running in May or June.

(ljs)

 

Is a Uniform Bar Exam on the Horizon?

Lawyers have been talking about the possibility for years, but optimism has been hard to come by. Now, the president of the National Conference of Bar Examiners thinks the time may be right.

Lawyers are moving across state lines with greater frequency. In these difficult economic times, law students aren’t sure where they will end up and don’t know which bar exam  to  take. The Conference of Chief Justices and the ABA section on legal education have recently endorsed the proposal. Moreover, 18 states already give the same bar exam, consisting of the Multistate Bar Exam, the Multistate Essay Examination, and the Multistate Performance test. Here is the ABA Journal’s article on the subject (December 2010 issue).

(ljs)

Don't Data Dump

In a blog posting at the Harvard Business Review online, Professor John Kotter offers advice on the art of persuasion. You make an argument or proposal  and elicit  a negative response. Should you answer by focusing on detailed data or should you give a simple, common-sense argument? He writes:

 I've found that in most cases, people should argue with less data. When you're defending an idea, my research of what works in the real world suggests that you should respond in ways that are simple, straightforward, and honest. This may sound obvious, but I found that this principle is rarely employed. Rather, most people respond to a critical question by arguing against the reasoning of whoever asked the question. They offer all of the evidence they can think of, hoping to make their case overwhelming. They shoot at an attack sixteen times with bullets of data to make sure it is dead. But in so doing, they are arguing not on their own but on the naysayer's territory, opening themselves up to counter-attacks with each piece of evidence they dispense — and simultaneously putting other listeners to sleep!

(ljs)

Diplomatic immunity for bad writing? One ambassador says no.

According to The New York Times yesterday, at least one United States ambassador considers good writing an important skill for junior diplomats (and, one hopes, for other diplomats as well):

      Richard E. Hoagland, the ambassador to Kazakhstan, thinks good cable-writing is so essential that he has written a guide for junior diplomats, “Ambassador’s Cable Drafting Tips.” Many of the tips would be familiar to any cub reporter trying to get an editor to bite on a story.
      “The trick is to catch readers’ attention,” he advises. “The first three to five words are all they will see in their electronic queue.”
      His specific recommendations? Avoid flabby writing, citing as a typically egregious example any memo that starts: “ ‘The ambassador used the opportunity of the meeting to raise the issue of’...”
      And work on storytelling: “Despite what some in Washington will tell you, there is nothing at all wrong with colorful writing, as long as it communicates something.” But he adds a caveat: “Cute writing is never acceptable — cute is for toddlers, not for professional diplomats.”
      Mr. Hoagland, who accompanied Mrs. Clinton to meetings this week, declined to discuss the substance of the leaked cables. But he was happy to discuss style. As a general rule, he said he instructs staff members to think like journalists. “Not everything we churn out is great writing,” he said, “but we try to keep up the standards.”

So, if you're a lawyer or law student looking to become a Foreign Service Officer, polishing your writing skills might give you an edge in the highly competitive selection process.

(cgw)

What Can the Twilight Saga Teach Us About Writing?

Some critics have taken the popular Twilight Saga books to task for the quality of the writing. But has anyone read them all, just looking for examples of poor writing and maybe wondering if vampires deserve better? Yes. The author of Reasoning with Vampires has worked through the books, and collected and nastily critiqued instances of unfortunate writing. In this generous season of the year, you may be looking for something mean-spirited to cackle over. Here it is.  But be careful. When you read the critiques you may become self conscious about your own writing.

(ljs)   

More Courts Opt for Digital Audio Recordings Online

Two federal district courts and six bankruptcy courts now offer digital recordings online through PACER, a service of the federal judiciary. And another 22 courts are planning to offer digital audio access. Here’s a report from U.S Law Week online.

(ljs)

The Royals Choose an Auspicious Wedding Date

Prince William and Miss Middleton have decided to hold their wedding on  April 29, 2011. That date is an auspicious one. No doubt they were aware that it is the birthday of Oliver Ellsworth, a Connecticut delegate to the Constitutional Convention and third Chief Justice of the United States Supreme Court.

Happy Thanksgiving to all!

(ljs)

Why Some People Perform and Some Don't When They're in the Clutch

At this time of the year, many of our students are under severe pressure to perform. They have to draft a document, perform a service for a clinic client, or get ready for an exam.

At the Harvard Business Review online, Paul Sullivan offers his results from a study of the military, business executives, and  athletes on who performs in the clutch and who does not:

"In a previous post, I discussed the five traits of people who excel under pressure: focus, discipline, adaptability, being present and a combination of fear and desire. But just as important is the ability to understand and eschew the qualities that cause people to choke in the same circumstances. My research into military leaders, business executives, and athletes indicates that there are three common problems: a failure to accept responsibility, overconfidence and overthinking."

I think this diagnosis applies to law students. Perhaps if we gently guide our hassled students to understand what holds them back from a successful performance, we may help them when they find themselves in future clutches.

(ljs)

Remembering John F. Kennedy

Today, November 22, marks the anniversary of the assassination of President Kennedy, a heartbreaking and significant date for many of us. On this blog, we might remember his way with words, aided by his speech writer, Ted Sorenson. Here is my favorite quote, delivered at a White House dinner for Nobel laureates. He told the assemblage that the guests comprised “probably the greatest concentration of talent and genius in this house except for perhaps those times when Thomas Jefferson ate alone. Here are more quotations from the Quotations Page.

(ljs)

A Chat with the "Shadow Scholar"

On November 16,  we posted a link to a first-person essay by the “shadow scholar” who makes a living writing papers for students ( "Who writes the Papers that Students Plagiarize?").  Here, from the Chronicle of Higher Education, is the transcript of an interview with the shadow scholar.

(ljs)