Encouraging (i.e., forcing) student participation

Some students like to talk in class.  Some don’t.  There seems to be little correlation between talking in class and performance in class.  But I suspect there’s a correlation between talking in class and succeeding in law practice, as I noted yesterday.

My own method for getting student participation in the 1L Contracts class is to use a problem-based approach in which we work through eight problems in the basic 100-minute class session.  Three students are assigned in advance to represent the plaintiff in each problem, three are assigned to represent the defendant, and three are assigned to be judges.  The assigned students must come down to the front of the class, stand up, say “May it please the court,” introduce themselves, and then make their arguments.  There’s no grade component to this, but students seem to take it very seriously.  Given the basic 70-80 students in the 1L course, students find themselves having to do an oral argument about half a dozen times during the semester.

This year’s Contracts class took their final yesterday morning, and I invited them for beers across the street to Shula’s.  I was struck by the number of unsolicited comments from students about the process.  This suggests to me that Yale students aren’t alone in feeling that the professor’s job is to push them to participate.

Posted in Law schools | 2 Comments

Women speaking up in law school

Students at Yale Law School have a new report out on gender at America’s most exclusive law school.  It’s called Speak Up about Gender: Ten Years Later.  One of its findings is that adjusted for the relative populations, women at Yale speak up in class less often (43%) than do men (57%).  I don’t know much about the inner workings of elite law schools and am not competent to judge the statistical methodology in the study.  Others (Lior StrahilevitzJeff Lipshaw, Bill Henderson) have more substance to add.  Just a couple of points.

First, I was struck by the comment of one commentator, Vivia Chen of The Careerist, who said, “[Y]ou can’t help but feel there’s a correlation between being vocal—maybe even cocky—and success.”  This seems so obviously true that the slightly doubtful tone is puzzling.  This is a society (and a profession) in which those who speak get more attention than those who remain silent.  Quiet excellence can be well rewarded in the legal profession, but it is rarely as well rewarded as loud excellence.  (The converse is true.  Quiet incompetence is usually better rewarded thatn loud incompetence.)  The most successful products are those which are very good and very well marketed.  Staying silent and relying on word of mouth is not usually the most successful marketing strategy.

Second, I was struck by the study’s conclusion that students overwhelming want more cold-calling in class rather than less.  This apparently includes even the venerable Socratic Method.  There is no doubt that cold-calling forces students who would otherwise be quiet to speak up, which is obviously (for one who is going to be a lawyer) a good thing.  What’s strange is that the law students themselves seem to understand this.

My 1L Contracts exam is over, so grading now begins.

Posted in Law schools | Leave a comment

The are NOT too many lawyers

A piece in the ABA Journal Weekly Newsletter, relying on a BloombergBusiness.com news story, makes a fairly common claim in these recessionary days: there are too many lawyers in America.  Boomberg writer Paul Barrett relies heavily on the fact that in 1950 there was one lawyer for every 709 Americans.  Today that number is  257.  Ergo, too many lawyers.

This is, of course, a stupid argument.  (I sincerely hope Mr. Barrett did not learn his reasoning skills in law school)  How many software engineers were there in 1950?  Human resources professionals?  Venture capitalists?  Commercial airline pilots?  The American legal system is has itself grown exponentially since 1950.  The Warren Court had not yet required all criminal defendants to have lawyers.  Tort law had not yet had the explosion of liability that came from abolishing privity, relying on stricxt liability, restricting defenses, and extending statutes of limtations.  Six enormous federal departments did not exist (Health & Human Services, Housing & Urban Development, Transportation, Energy, Education, Homeland Security).  There was no Equal Employment Opportunity Commission, Occupational Safety & Health Administration, Environmental Protection Agency, Office of Management and Budget, Consumer Product Safety Commission, Federal Housing Finance Agency, Federal Election Commission, National Aeronautics & Space Administration, National Endowment for the Arts, National Transportation Safety Administration, Securities Investor Protection Corporation, or Small Business Administration.  There were no laws against racial discrimination, age discrimination, or sexual harrassment. Health, zoning, and safety regulations were rudimentary.

In other words, the legal system has changed nearly as much as the digital computer — which was also in a fairly primitive state in 1950.  There is only one way in which we can say that there are “too many lawyers”:  everyone who needs one has one and we still have some extras left over.  In fact, as I learned when I tried to run my own fairly small businesses, there is a drastic shortage of lawyers who can advise ordinary people and small businesses.  What we have is not too many lawyers, but too many lawyers with $200,000 in debt who want to work at Sullivan & Cromwell.

(One could, of course, make the case that we have too much law, and therefore we make things simpler so we don’t need as many lawyers.  But I don’t that’s the point the writers are making.)

Our current system does not produce too many lawyers, it produces too many lawyers whom very few people can afford to hire.  There’s a big difference between the two.

Posted in Legal profession | Leave a comment

More on “practice-ready” students

Over at Pryor Thoughts, Regent’s Scott Pryor responds to my earlier post that in turn responded to a thoughtful piece by Suffolk’s Jeff Lipshaw.  I agree with much that he says, but I want to clarify my point, which I’m not sure came through as clearly as I’d hoped.

Different people mean different things when they talk about ”practice-ready.”  Jeff was, as I understood him, talking about that kind of judgment that a lawyer needs when faced with difficult client problems.  What kinds of skills do you need to run a complex project finance deal to build a $10 billion facility in Dubai or litigate the constitutionality of the health care act?  In my view law schools simply cannot teach this, for two reasons.  First, hardly any of us (myself included after 15 years away from practice) are competent to do so.  Second, and more fundamentally, I doubt it can be done in an academic environment at all, especially one aimed at 22-yeare-olds who have very little experience outside of school.  There’s a reason that major transactions and incredibly important litigation are headed by seasoned veterans — just as there’s a reason why General Eisenhower and not some 26-year-old lieutenant was put in charge of the invasion of France in World War II.

It would be ludicrious to design the training of every new Army lieutenant as if his or her primary job was going to be sitting at a desk, making major strategic decisions, and supervising the logistics operations of millions of subordinates, especially if what is neglected in the training is the practical skills necessary to lead a simple platoon under enemy fire.  I’ve heard too many in the academy explaining that it’s critical to give students the kind of broad interdisciplinary thinking that will allow them to later  handle these sorts of things.  But our newly minted graduates don’t need that.  What they need is to be able to draft a complaint, litigate a simple tort or contract case, handle a routine uncontested divorce, do the start-up planning and legal representation for a new taco shop, try a misdemeanor case, etc.  It is these things that we don’t usually teach in law school, at least in ABA-accredited, AALS-member institutions.

Caveat: Not all lawyers, of course, will need to learn how to do the simple things that ordinary legal practice involves.  Some will join elite firms and government agencies where they will be nurtured for years before any single decision they make will affect someone’s life.  That’s why I have no beef with the great research law schools.  I’m glad that Harvard, Yale, Stanford, Columbia, Chicago, etc., exist as training grounds for the elite bar and the academy.  I admire them enormously.  Somebody has to be out there training the lawyers who will represent the wealthy and powerful and the next generations of brilliant academics.  My only complaint is that the rest of us — those who train the lawyers who represent the 99 percent of the population who don’t get access to highly paid Yale grads for their routine legal needs – are spending too much time aping them and not enough time figuring out how to help our students help their clients.

Posted in Law schools, Legal profession | Leave a comment

Heck, they might be even more deluded than us

In case you were wondering whether any group in America is more completely out of touch with the economic disaster facing them than law professors at ABA-accredited schools, there may actually be one: the editorial staff of the New York Times.

It seems like half the newspapers in America have already gone bankrupt, while the others are just taking numbers and waiting to be called.  The once-mighty Times now has a total market capitalization of $950 million, which means the whole shooting match is worth less than 5/1,000ths of Google.  When you figure that the Gray Lady is holding $550 million in cash and short-term investments, the value of the actual publishing business is — well, about equal to the loose change you could probably pull out of Warren Buffett’s living-room sofa.

Yet the Times has actually been doing a heroic job of keeping itself alive.  Every day its product loses relative value to purchasers (who are flocking to free news providers on the Web and to immediate news on cable television) and its advertising revenues go down (because it’s losing those readers).  This sounds like a sure recipe for a death spiral.  But the Times, amazingly enough, has done a great job of keeping the presses running, and it even managed to make money this year.  You’d think that its employees would be happy that the nation’s most prestigious news organ was taking the steps necessary to keep itself alive and their paychecks coming out regularly.

Well, if you thought that, you’d be wrong.  Times reporters have gone public with a web site, SaveOurTimes.com, that shows that the real threat to the paper isn’t that people aren’t reading it and businesses aren’t advertising in it, but that employees may be forced to switch to a defined-contribution 401(k) retirement plan instead of the existing defined benefit plan.  This apparently is such a horrific concept that some staff members are talking about having to eat cat food or commit suicide when they retire.  (No, I’m not making this up.  Look at some of the videos on the site.)

What makes the reporters seem particularly deluded is not merely that they think that the 95% of the people who already have lousier pensions than they do will care.  It’s that they’ve managed to convince themselves that in demanding more money they’re not merely looking out for themselves.  No, the reason they want those nice, hefty pensions is so that the Times can continue to attract high-quality reporters like them, who are necessary to its continuance as a high-quality operation.  In other words, they’d have to quit and take a higher-paying job if the Times cuts their pensions, which means the Times would become a worse newspaper, which means that the public would suffer from the loss of everything the Times means to the world.

I’ve heard law professors argue that if we lost our cushy guaranteed job security, got our pay cut to market levels, and had our teaching loads increased ten or twelve hours a semester, our students would suffer because highly talented folks like us wouldn’t want to teach under those conditions.  It’s not that we want more money, fewer hours, and lifetime job security, it’s that our students need us to have more money, fewer hours, and lifetime job security.  Heck, the whole fabric of American justice would collapse if we had to work under the same conditions as other lawyers.  We’re not thinking of us, we’re thinking of justice.

I’ve found many students who are dubious about the idea that the more money I make and the fewer hours I have to teach, the better off they are.  Maybe we should think about a web site explaining the point.

Posted in Interesting stuff | Leave a comment

Advice from good mentors

Michael Maslanka, a veteran employment lawyer with a great reputation in Texas, posted an odd column the other day, sharing mentoring advice he got when he was a whippersnapper.  It’s called Five Lessons From Mentors Who Cared.  Some of the advice is inarguable: work hard, be succinct, communicate clearly.  One, though, was just odd.

Mr. Maslanka says he was taught not to call other attorneys “Mister,” because we have the same basic law license.  I find this hard to fathom.  I was taught to call pretty much everyone “Mister.”  Maslanka says that this is equivalent to “bending to one knee.”  But I don’t see it.  If I were to meet President Obama (we share the same law license) I’d almost certainly call him “Mr. President” and he would almost certainly call me “Mr. Snyder.”  I don’t see how either of us would be doing anything other than treating each other with respect.  And even if it were the equivalent of debasing one’s self, what’s the problem?  Humility is a virtue, and one that’s sometimes hard to find in our business.  I don’t know all that many really humble people in this business except me.

My own mentors, Judge George MacKinnon of the D.C. Circuit and Tom Patten of Latham & Watkins, gave me insights a little more specific than “work hard.”  Tom’s advice was particularly practical:

1.  “Keep your fly zipped in the office.”

2.  “Don’t get too stressed.  You probably can’t f–k it up so badly that I can’t fix it.”  Use your judgment and call if things get desperate.

3.  “Never say ‘I don’t know’ to a client.”  If you do, they’ll go find someone who does claim to know the answer.  (Caveat: Don’t make up an answer.  Evasivenee in answering is just fine, as is stalling in some way to go look up the answer, or doing doing the might-be-this-or-might-be-that shuffle.  Just don’t admit that you’re clueless.)

4.  “Be very nice to the secretaries and paralegals.  They’re much harder to replace than you are.”  Every year there are 1,000 new Harvard Law grads for each new really good secretary..

5. ” Don’t spend as much money as you make.”  That way you don’t have to stick with a job just to keep up your lifestyle.

6.  “If you’re going to buy a really expensive watch, buy one that looks expensive.”  Don’t spend $10,000 for something that looks like a Timex.

UPDATE:  A colleague of mine who practiced as an associate in Texas tells me he got the same advice Mr. Maslanka did.  Apparently in Texas it is common for senior lawyers to try to intimidate junior lawyers at depositions and other meetings, and thus calling someone “Mister” (or, I assume, “Ms.”) would be a sign of weakness.  My own practice was mostly in D.C. against other large firms and government agencies where no one seemed to try to use these tactics against me.  I still don’t see why being more courteous than the other side is a sign of weakness, but apparently there are a good many lawyers in Texas who think that it is.

Posted in Legal profession | Leave a comment

Signs of change at the ABA

Barry Currier (left) has been named the interim Consultant on Legal Education to the American Bar Association, replacing Bucky Askew, who has held the job for the last six years.  Mr. Askew has presided over some substantial changes in the ABA’s relationships with law schools, but those are nothing like those that are likely to come in the future.

Dean Currier is in a logical choice for the interim job, since he has taught in the law schools at Kentucky, Duke, Monash, and Florida, was dean at Cumberland/Samford, and is a former Deputy Consultant himself.  But what makes him a potentially revolutionary force is his five-year stint as dean of the online, for-profit Concord School of Law, part of Kaplan University.  There is perhaps no human institution more resistant to change than the American law school, but Dean Currier is a firm believer in  the possibilities for improving education and slashing costs that can come from embracing technology and distance education.  Here is a piece from 2009, in which he is already talking about the fact that legal education is too inaccessible and too expensive.

It will be interesting to see if he’ll have the chance to try to steer the ABA in that direction, and whether law schools will see him as a suitable candidate for the permanent job.  We can only hope.

Posted in Law schools, Legal profession | Leave a comment

“Worst law school in five states”

I was in the law school faculty/staff staff kitchen the other day, making a cup of coffee and overhearing a conversation.  Seems some anonymous person on some blog or other called the school that employs me “the worst law school in five states.”  Given that every business on earth has someone out there saying how lousy they are (ever visit Walmartsucks? WholeFoodsSucks? IHateStarbucks?) I was surprised at how offended people were.  We’re not used to nasty anonymous attacks at law schools, but we’re going to see a lot more of them.

On the merits, it’s hard to tell what “worst law school” means.  If you look at our student credentials, they stack up pretty well compared to most fourth-tier and many third-tier law schools.  If you look at our bar passage rate, we do pretty well.  Our bar passage rate averages about ten or fifteen points below test takers from top 10 law schools.  But when you realize the strong correlation between bar performance and LSAT/UGPA credentials, and realize also that it’s doubtful that any of our students could even have been admitted at one of those schools, you’ve got to assume that we’re doing a pretty good job of actually training students for practice.  Given that 80 percent of my students will likely pass the bar, it’s almost impossible to believe that anyone at at a school whose average LSAT score is more than two standard deviations higher than ours could possibly fail if they got even a decent amount of instruction.

Since I’ve neither taught nor attended any of the other 19 or so law schools in the five-state area. I obviously can’t say that we’re not the worst.  Somebody obviously has to be, right?  (Think Texas Tech in basketball.)  Certainly we’re the newest and almost certainly the least prestigious, so for prestige-driven students we’re a bad choice.  If you’re planning on relying on the reputation of your degree-granting institution as the primary proof of how good a lawyer you are, and don’t care how much money you pay for the degree, by all means go somewhere else.  I’ve heard that everyone at the top ten law schools gets a great high-paying job these days, and for every 10 places in the USNews rankings the expected salary of graduates goes up by $7,500 a year.

Posted in Law schools | Leave a comment

Chen steps down at Louisville

One of the few law school deans who has some sense of the coming Apocalypse is stepping down.  Jim Chen of Louisville is calling it quits after five years.

With any luck, he’ll have time now to do more of the innovative thinking that his fans have come to expect.

Posted in Law schools | Leave a comment

Making lawyers “practice-ready”?

“If you want law school to be practical, and you want it to do more than train litigators (whose orientation is the enforcement or opposition of legal rights and duties – and where some practitioners get to be appropriately tunnel-visioned), and you want lawyers to be “practice-ready” when they get out, and you don’t want a lot of interdisciplinary theory, what do you do?”

Jeff Lipshaw asks the question over at The Legal Whiteboard.  It’s a good question.  I’m not as anti-litigator as most transactional types, since the one things lawyers bring to transactions that other professionals don’t is their sense of potential legal liabilities, a sense that is well-honed by training in litigation.  Any good MBA can tell you if the deal is good or bad.  Only a lawyer can tell you what the litigation risks are.

In my view, training lawyers ought to be thought of in the same way as training soldiers or surgeons.  A great military commander obviously must possess a great many skills apart from a thorough understanding of small unit tactics and how to keep a rifle in good working order.  A great surgeon must have qualities apart from his or her ability to stitch up an incision correctly.  But the newly minted second lieutenant or surgical resident cannot be expected to have developed those kinds of skills.  At the point they emerge, it is enough that they know how to lay down suppressive fire at a given target or sew a straight seam.

In his post Jeff raises several points about how, in real life, decisions about whether to do a deal, whether to break off a contract, and whether to sue are not usually made on the basis of relative legal rights.  But that’s the same with soldiers in the international world.  Most of the time the United States will work out its differences with other countries amicably.  Even when things get testy, most of the time we will work things out peacefully or at least adopt some sort of live-and-let-live policy.  But this does not mean that having armed forces is unnecessary.  It is the very presence of the armed forces and a perceived willingness to use them when necessary that helps us reach peaceful solutions.  Similarly, the presence of the ”law” as the ultimate endgame ploy provides the background for all commercial dealings.  This means that just as soldiers must be trained heavily for the one percent of the time they will be called on to kill people, lawyers must be trained heavily for the one percent of the time they will be called on to resort to legal remedies.

So I feel about putting more emphasis on “business thinking” in law school pretty much the way I assume an MBA schools would feel about putting more “thinking like a lawyer” into their marketing program.  Not necessarily opposed, but rather dubious.  I try to teach my students enough business so they (1) understand what a given transaction is about, and (b) communicate with their clients.  I’ll be doing a new class this year where we take it a step further, and teach students how to find the facts that will become the basis of their legal arguments.  But I will almost certainly continue to have them focus on drafting simple contracts and pleadings rather than focusing on strategic business thinking.

Besides, I don’t know how many people there are like Jeff, whom I would trust to teach my students “real world” stuff.  Very few of my colleagues in the academy have anything like Jeff’s background.  It’s difficult to take seriously “real world” advice from someone who practiced law as a junior associate for a year and a half during the Nixon administration.  I simply don’t know how many of us have the kind of breadth of practice experience that we could actually add value.  I’m fairly confident I couldn’t, and I have a lot more higher-level practice experience than most of us.

Posted in Law schools | 1 Comment