Tuesday, December 22, 2009
After blogging a few days ago about a California court that suspended a lawyer for three years because, according to that court, he was a "jerk," comes this story from today's online ABA Journal called "A Judge's Advice to New Lawyers: Don't be a Jerk."
It's about a Texas judge who is sharing a letter he wrote to his children offering the following advice about entering the practice of law:
- Don't be a jerk
- Be proud to be a lawyer
- Don't tell lawyer jokes
- Always tell the client the truth.
- Communicate with the client
- If the client lies to help make his case, fire him
- Always tell the court the truth
- Always be open to learning from others and be willing to learn from your own mistakes
- Obey the "Golden Rule"
- Have fun
Hat tip to the ABA Journal.
I am the scholarship dude.
How's that for alliteration? To follow up on a story we told you about last week concerning the practicum curriculum change at Washington & Lee that the school claims is responsible for a 33% increase in applicants, both the Washington Post and the online ABA Journal Blog have picked up the story and provide us with some more details about the program (the Post story includes a slideshow).
Most members of Washington and Lee's Class of 2010 have abandoned the lecture hall to spend their final year of law school learning how law is practiced -- including the mundanities of dressing for court and the intricacies of taking depositions and writing briefs on deadline.
Students are working court cases from complaint to verdict, matching wits with opposing counsel, currying favor with judges and managing difficult clients, real and simulated.
. . . .
Most law students spend their three years in classrooms, analyzing landmark cases to learn the legal reasoning behind them. The case method, as it is known, was pioneered at Harvard in the 1870s. The last year of law school much resembles the first, and it is widely regarded as the weakest: Third-year students have learned to think like lawyers, and the work has become routine.
The model has been criticized for stressing theory over practice. Law schools mostly leave it to firms to teach new associates how to work with real cases and clients.
"Some people say that we, the legal academy, are not doing a good enough job training lawyers for the lives that they will lead," said Dan Polsby, dean of the law school at George Mason University. "People don't know where the courthouse is. They don't have the street smarts."
. . . .
Faculty members spent six years preparing the new program. Current third-year students had the right to opt out, and 49 did. Henceforth, only the new curriculum will be offered.
The goal of the new lessons is to teach third-year students how law is practiced in the real world, in contrast to the sterile predictability of the classroom. In one of the new courses, students received an e-mail on a Friday night announcing a major change in a document due Monday morning.
"Their initial reaction was to think, 'This is messed up,' " said Bob Danforth, associate dean for academic affairs. "Well, that's exactly why we're doing this."
I am the scholarship dude.
Given the prevalence of "essay mills," as reported recently in the Chronicle of Higher Education, surely at least some U.S. students enter law school with undergrad degrees based in part on written work they paid others to do for them. Making the problem even more pernicious is the fact many of these hired writers are located overseas now.
hat tip: RJ Robertson
Monday, December 21, 2009
Professionalism alert Part II - California court issues 3 year suspension to prominent lawyer for being a jerk
Related to the story below, figuratively if not literally, a California court has suspended from practice for three years Philip Kay, a very successful and prominent plaintiff's attorney for "outrageous conduct." In a 48 page opinion, Judge Lucy Armendariz found, among other things, that
Kay [engaged in] a "pattern of abuse" toward nearly everyone in the courtrooms of San Diego County . . . .
"Respondent was sarcastic to the court," Armendariz wrote. "He repeatedly badgered, berated, screamed, yelled and/or raised his tone at witnesses and the court, despite court warnings, admonitions and orders not to do this."
She also noted that Kay had often tried to get into evidence issues that had been banned by the court, had accused the judges of bias and had told jurors that opposing counsel was lying.
"Instead of stopping and being respectful and professional," Armendariz wrote, "respondent would repeatedly mock the court and tell it that he would not obey the court's orders and warnings."
Kay denied the allegations before and during the State Bar Court trial, saying he was only being a staunch advocate for his clients. He also accused the San Diego judges of having a vendetta against him.
Kay didn't help himself much at this suspension hearing during which the judge said he continued to be rude, arrogant and defiant including refusing to answer her questions or take the stand when requested. Indeed, Judge Armenderiz said the only reason she didn't disbar Kay is because his conduct never hurt his clients who often won their cases .
I am the scholarship dude.
According to one New York court, even if a lawyer devotes thousands of hours to pro bono work and gives generously to charity, his license to practice can still be pulled if the rest of his financial house is not in order. The Legal Profession Blog is reporting this case involving a one year suspension for a Kaye Scholer partner who failed to pay his taxes even though by the time of the suspension hearing he'd already reached a settlement with the IRS:
The Hearing Panel conducted a hearing and respondent, represented by counsel, respondent's wife, and several character witnesses, including two of his former law partners testified on his behalf. Witnesses testified that respondent devoted thousands of hours to pro bono activities on behalf of his firm representing death row defendants and, as a Trustee, gave a great deal of time to and made substantial financial contributions to Skidmore College, his alma mater. Respondent also submitted a letter from a psychiatrist stating that respondent suffered from "an Obsessive Compulsive Personality Disorder", that caused him to attend to his work compulsively, but caused him to be careless about various personal matters, including those relating to health and finances.
. . . . .
In the within matter, while there are some mitigating factors, we find aggravating factors vastly more compelling. Specifically, while at his law firm and receiving a substantial income, respondent purchased a five bedroom house in New Jersey and a four bedroom house in Florida. He also owned a Lincoln Town car, a Nissan Mini Van, a BMW SUV, and paid for his children to attend private school. In addition, respondent lied to his wife by telling her that tax matters had been taken care of and did not notify his partners of the pending criminal investigation before resigning from the firm to take a position as president of two corporate entities engaged in energy operations in the Philippines. According to the Hearing Panel, his failure to inform his law partners was to insure collection of full compensation and early capital account distribution. We agree with the Hearing Panel's finding that the psychiatric claim is not credible.
While respondent's extensive pro bono work on behalf of defendants facing the death penalty and his dedication to his alma mater is commendable, it does not excuse his failure to file returns or pay taxes during this time. Although respondent has paid all the taxes owed to the State, and has worked out a plan with the Internal Revenue Service, the picture that emerges is that respondent, without any justification, and while enjoying a lavish life style, disregarded his tax obligations. Having considered all of the factors set forth above, we find, as we have found in Matter of Goldman decided herewith, that failure to file tax returns and pay taxes for an extended period of time in these circumstances warrants suspension.
Read the rest of the story here.
I am the scholarship dude.
Sunday, December 20, 2009
Minnesota bankruptcy Judge Robert Kressel has issued a set of mandatory drafting guidelines for all attorneys submitting proposed orders for his signature. Some of the judge's guidelines reflect what is already commonly considered good practice (i.e. avoiding superfluous words) while other rules seem more idiosyncratic. Given the bankruptcy court's likely caseload these days, he's entitled.
Keep in mind that some of the judge's rules on "good" writing might not always apply in the legal writing classroom because we've got a different audience and goals in mind. For instance, Judge Kressel forbids lawyers from paraphrasing statutory language in any proposed orders they submit to him. I'm guessing that many legal writing profs tell students just the opposite; never quote statutory language when paraphrasing will do the job more simply and concisely. Our goal is a pedagogical one in that requiring students to explain statutory language in their own words better helps them learn it while the judge is trying to save time and avoid the mistakes that result when lawyers inadvertently misstate the law in their submissions to the court. The point being that instead of using Judge Kressel's order as example to your students of good writing practice (which for the most part it is) it might better serve as both an example to students about the importance of knowing one's audience as well as showing them that good writing really matters in the real world. At least that's my take on it.
A big 'ol tip of the hat to the Law Librarian Blog for turning me on this story.
I am the scholarship dude.
See your local broadcast TV listings for Who Wants to Be a Millionaire on January 4, 2010. Legal writing professor Lisa McElroy, who teaches at Drexel, will be a contestant. The show was taped in the fall, so obviously Lisa already knows how it turned out, but she was sworn to secrecy.
hat tip: Kristin Gerdy
Saturday, December 19, 2009
If joining a fantasy football league isn't for you, perhaps you'd prefer the new fantasy Supreme Court game? It lets you predict the outcome of cases pending before the Court. If you've always said you know how a case should come out, if only anyone would have asked you, here's your chance.
hat tip: Frank Houdek
I love Kressel's admonition to attorneys to stop capitalizing with abandon. He notes that capitalization should be limited to proper names, and his strict approach to capitalization is even more limiting than the Bluebook's. I also appreciate his plea to attorneys to use articles. When my 1-L's don't use articles, the cause is sometimes their quoting a headnote rather than the opinion itself. I have no clue what excuse to offer for others' non-use!
hat tip: Kay Fletcher, one of our assistant deans at Tech
The newsletter for the AALS Section on Balance in Legal Education is now available. Not only does it mention this blog (thank you!), it also includes:
- a message from Section President Bruce Winick
- a profile of Professor Calvin Pang
- Profsesor Larry Krieger's "ABCs of Clarity and Peacefulness"
- an invitation to Section events at the AALS Annual Meeting in New Orleans, including the business meeting, an informal gathering at the historic Sazerac Bar, and the Section program
- listings of recent conferences, events, and publications
- and lots more!
hat tip: Amy Bushaw
Friday, December 18, 2009
Scholarship alert: "A countervailing elite: the necessity of an effective lawyering skills pedagogy for a sustainable rule of law revival in East Africa"
[T]he lawyer in East Africa has to be much more than a competent legal technician. With the coming of independence, the manifold problems that beset developing countries have to be faced, and in doing this great changes will have to be made in the framework of society. Lawyers have a vital part to play in these developments, for upon them will fall a major share of the work of putting into practice the principles and ideas of their colleagues in the fields of politics, economics and science, and ensuring that the resultant system works fairly and efficiently. Legal education must take account of these facts, and see that students are made aware of and prepared for their future role.
Thursday, December 17, 2009
There's an article in today's online ABA Journal discussing the departure after three years of Washington & Lee Dean Rod Smolla for Furman College where he'll serve as president. The article mentions the curriculum reforms that Dean Smolla implemented which place a heavy emphasis on preparing students to actually practice law. (We'd previously blogged about the curriculum changes at W & L here and here). The reforms "eliminate traditional coursework and [focus] on the practice of law through simulated or real-work situations. More than 50 percent of Washington & Lee’s 3L’s are participating in the currently optional program, which will become mandatory in 2011."
The ABA story states that the curriculum changes have accounted for a 33% increase in applicants this fall. While the school claims there's a connection between its newly revamped curriculum and an increase in applications, other factors could also explain the change including the poor economy which has led to a significant increase in the number of applications at many law schools. But it would be nice to think that the applicant market responds this favorably to a school that emphasizes practice skills as much as W & L. If you know of any other schools that report similar results from implementing a practice-oriented curriculum, please let us know in the comments below.
I am the scholarship dude.
More of the good stuff. This one is by Professor John H. Scheid of The John Marshall Law School in Chicago and can be found at 37 Cap. U. L. Rev. 631 (2009). From the abstract:
The following suggestions that I propose, after having taught first year law students for over thirty years, are probably most applicable to students in the first two or three semesters, where the professors use casebooks rather than other types of materials, such as problems and hypotheticals. ... Restating in one's own words the arguments and reasoning of the court takes work. ... A reversal of a lower court's judgment, by definition, rests on one or more crucial issues of law, which in turn become the principle or principles of the case. ... In short, the third category of legal ideas is the equivalent of footnotes, concepts that are "nice to know" but which are not central to the course. ... Reviewing class notes six times over the two weeks following a class will likely reinforce comprehension to such a degree that one year later the student will have a deep-rooted understanding--not recall, not mere memory, but fundamental comprehension. ... Similarly, ninety percent of learning takes place before anyone briefs a case or attends a class. ... X had a package under his arm, a package that was wrapped in newspaper. ... There is no transferred negligence as "risk imports relation" between defendant and plaintiff. 1. ... X says: This problem arises only when the facts show a "direct" injury to a plaintiff who was not "reasonably foreseeable."
I am the scholarship dude.
Co-authored by Judge Ruggero J. Aldisert of the Third Circuit, he was the recipient of of the Legal Writing Institute's Golden Pen Award a few years back. The article can be found at 31 Cardozo L. Rev. 1 (2009).
From the abstract:
Likewise, harried opinion readers will benefit from a better understanding of opinion structure and opinion writing technique as they struggle to parse - whether as students in a first year classroom or as advocates researching a case to be argued before the highest court in the land - just exactly what these dang opinions are intended to convey and why they are even written in the first place. ... Almost fifty generations of law clerks have served in Judge Aldisert's chambers; the coauthors are the most recent in this long line of apprentice opinion writers and avid opinion readers and researchers. ... Examine the following table for a summary of each element: Greco-Roman George Rose Description Rhetoricians Smith's Primer Opening Exordium Opening Traditional form: paragraph(s); the paragraph explanation of the orientation nature of the action below, of the parties, the judgment, and the issues on appeal; Issue form: also includes major issue to be discussed Summary of issues Divisio Indication of Statement of issues to discussed issues on be discussed appeal Material or Narratio Statement of Narrative or adjudicative facts the facts adjudicative facts
Wednesday, December 16, 2009
Because I've been behind in my blogging, it's actually the word of last week. Technicalities aside, this one comes to us from from wordsmith.org and is particularly relevant during the month of December when most LRW profs are working through a pile of student papers.
The word is "periphrastic" meaning: 1. Using a roundabout form of expression; wordy. 2. Formed by the use of two or more words instead of inflection
Examples include: "daughter of John" (compared with "John's daughter);
"It did happen" (compared with "It happened");
"more stupid" (compared with "stupider"); and
"Do you have" (compared with "Have you").
Hat tip to Professor Mary Beth Beazley.
I am the scholarship dude.
hat tip: Lou Sirico
That's the title of a Salon article that's got some legal writing professors thinking:
For centuries in print and more recently on-line, women who adopted male pseudonyms have fared better than they did writing under their own, female names. So what happens when a law journal sees a male versus a female name on a submitted manuscript? And given how prevalent and readily acknowledged elitism is in the selection of manuscripts for the top U.S. law journals, how likely is it that sexism is absent? Why don't student-edited U.S. law journals use blind reviews, like the peer-reviewed J. ALWD and J. Legal Writing do?
hat tip: Mary Beth Beazley
Tuesday, December 15, 2009
Maybe it's just me, but every time I publish an article in a student-edited law journal (for our non-U.S. readers, student-edited law journals are the norm in the U.S.), I find myself editing the publication contract before it even comes close to something I can sign. As a legal writing professor, I naturally want to put it in plain English. I also change the content of the ridiculous indeminity clauses, which often would make me liable for things entirely outside my control or responsibility. And then there's the matter of copyright, a topic I also teach occasionally. Sometimes student editors actually seem surprised that I don't want to sign away my entire copyright forever, but I stand my ground.
Now Ben Keele at Indiana-Bloomington has studied these copyright provisions. His new article is: "Examining Law Journal Publication Agreements for Copyright Transfers and Self-Archiving Rights". And here's his description of his study:
"This study examines 78 law journal publication agreements and finds that a minority of journals ask authors to transfer copyright. Most journals also permit author to self-archive articles with some conditions. The study recommends journals make their agreements publicly available and use licenses instead of copyright transfers."
Thanks to LWI and LSN, we have news of two new articles that offer innovative ideas for teaching legal research:
"Teaching Legal Research Online"
Susan Herrick, University of Maryland - Thurgood Marshall Law Library
Sara Kelley Burriesci, Georgetown University Law Center - Edward Bennett Williams Law Library
"Online instruction has great potential for accommodating the learning styles and preferences of Millennial law students, as well as for the effective teaching of legal research in the digital age. While integrating instructional technology into a face-to-face classroom legal research course is highly desirable and relatively easy, designing and teaching a purely distance or hybrid distance course provides some unique challenges as well as some distinct benefits for both instructors and students. This article will first evaluate individual instructional technologies independently of each other, since any of them could be used to supplement traditional face-to-face research instruction, whether formal or informal. Consideration will then be given to special problems of teaching a graded legal research course entirely or predominantly online. Legal research instruction presents some opportunities for experimentation and innovation with online learning techniques that may serve students better, accommodate the librarian’s technology skills and abilities and her time constraints, and inspire others at our law schools to follow suit."
"Introducing and Integrating Free Internet Legal Research Resources into the Classroom."
Jootaek Lee, University of Miami Law Library
"The Global financial crisis has been discouraging legal researchers and practitioners from accessing high-cost databases such as Westlaw and Lexis. On the other hand, internet legal research provides great benefits to researchers in that it is free or less expensive than Westlaw and Lexis. The necessity of teaching law students internet legal research skills is imminent.
"The cons and pros of internet legal research will be discussed along with the effective ways of approaching and evaluating internet legal resources in terms of coverage, currency, accuracy, authority, appropriateness, perspective, presentation and usability, and cost. Additionally, a garden variety of authoritative internet legal resources for different primary and secondary sources will be introduced."