Yet Another Cautionary Tale Of Bad Legal Writing

The ABA Journal reports another case in which an attorney has been raked over the proverbial coals for poor writing. The title to the article - Federal Judge’s Footnote Hits Employment Lawyer for TMI in Legal Briefs - is perhaps slightly misleading. No one was actually hit. Instead, there was an unkind discussion in a footnote about the attorney's inability to get to the point and to state his case concisely. The TMI does not refer to Three Mile Island but to Too Much Information. District Judge Pratt's full opinion is here. Look for footnote 1 at the bottom of p. 2. Reading the entire footnote leads one to consider the possibility that the footnote itself might not be sufficiently concise. Excerpts from the scathing footnote -

Plaintiff’s counsel needlessly complicated the Court’s task of summarizing the relevant facts. ... Rather than identifying potential factual disputes in a concise fashion, Plaintiff’s counsel unfurled an 18-page narrative that is replete with argument and a 15-page surreply that is no better as it contains a great deal of immaterial information. ... And, for reasons that remain unclear, the brief devotes a paragraph to explaining the 15th century origin of the phrase “cat’s paw,” a legal doctrine that is inapplicable to the present matter. ... Accordingly, the Court had unnecessary difficulty excising the arguments from the facts when piecing together the background section.

ABA Law School Transparency Site

If you're interested in the new ABA transparency guidelines you might want to check out the LST - Law School Transparency - web page. The Winter 2012 Transparency Index Report is ready. This is the first Transparency Index Report. The full report is here. The following is a direct quote from the Execute Summary of the Report. It appears that many schools are still disclosure-challenged:

- 27% (54/197) do not provide any valuable information on their websites for class of 2010 employment outcomes. Of those 54 schools, 22 do not provide any employment information on their website whatsoever. The other 32 schools demonstrate a pattern of consumer-disoriented behavior.
- 51% of schools fail to indicate how many graduates actually responded to their survey. Response rates provide applicants with a way to gauge the usefulness of survey results, a sort of back-of-the-envelope margin of error. Without the rate, schools can advertise employment rates north of 95% without explaining that the true employment rate is unknown, and likely lower.
Only 26% of law schools indicate how many graduates worked in legal jobs. 11% indicate how many were in full-time legal jobs. Just 1% indicate how many were in full-time, long-term legal jobs.
- 17% of schools indicate how many graduates were employed in full-time vs. part-time jobs. 10% indicate how many were employed in long-term vs. short-term jobs. 10% of schools report how many graduates were employed in school-funded jobs.
- 49% of schools provide at least some salary information, but the vast majority of those schools (78%) provide the information in ways that mislead the reader.

Duncan Law School Sues ABA

No surprise here. Duncan Law School, the Tennessee law school featured in last Sunday's NY Times article about the business of law schools has lost their bid for accreditation. See the post here for a link to that article and some details.

In today's article - New Law School Sues Bar Association - David Segal reports that one of the reasons for the ABA's refusal to accredit Duncan is that admission standards are not high enough to satisfy the current ABA standard. As Segal writes -

Specifically, the council found that Duncan, which is part of Lincoln Memorial University, fell short of a standard that prohibited the school from enrolling students who did not appear “capable of satisfactorily completing its educational program and being admitted to the bar.” The standard, say legal scholars, is to protect students from schools that are trying to cover their costs by admitting people who are unlikely to succeed.

Duncan's Dean, Sydney Beckman disagreed. As Segal notes -

Mr. Beckman countered that the median Law School Admission Test score of Duncan’s incoming students is 147 (out of a possible 180), which he said met or exceeded the scores of eight accredited schools. He added that the grade-point average of incoming students met or exceeded roughly 30 A.B.A.-approved schools.

Of course, if the students at Duncan are willing to practice only in Tennessee the school need not be accredited by the ABA. California has a number of law schools that are only state accredited. As financial realities continue to impinge on the ideal it is possible that more students will forgo the ABA accredited school in favor of lower tuition. That would be a free market economy development that might actually change the law school business model.

Yet Another Article About the Future of Law Schools and the Profession

Once again, the NY Times has printed a lengthy article about the problems associated with legal education. Sunday's article by David Segal - For Law Schools, a Price to Play the A.B.A.’s Way - is yet another examination of the current law school environment, especially the business of running a law school. The article focuses on the Duncan School of Law in Tennessee. Duncan is looking for ABA accreditation but they find that in order to get accredited they must comply with a series of onerous and arcane ABA regulations -

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close.

The net result is that the American people are under-represented. As Segal puts it -

...the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities. This year, the World Justice Project put the United States dead last among 11 high-income countries in providing access to civil justice.

In the end, it is the ABA's stranglehold on legal education that is feeding the current crisis in law schools: law graduates with an unsustainable debt load. Complying with the ABA regulations isn't cheap and it is higher tuition that foots that bill...

ABA Acts on Recent Graduate Employment Data Collection

As expected, the ABA Legal Education Section Council approved a new questionaire designed to elecit more accurate information about recent graduate employment from law schools. The full story from the ABA Law News Now is here. The article detailed the contents and purpose of the new questionaire thus:

The revised questionnaires will also require law schools to report how many graduates are working in various job types and their status, including how many are in jobs requiring a law degree, how many are in other professional or nonprofessional jobs, how many are pursuing graduate degrees and how many are unemployed and either seeking or not seeking work. Schools will also be required to report information about graduates' employment location, whether a position is short-term or long-term and whether it is funded by the school from which the job-holder graduated.

This means, of course, that law schools will no longer be able to temporarily hire their own graduates in order to boost their postgraduate employment stats. And, they will need to disclose when a fully employed graduate is actually fully employed as a barista or waiter.

Lawyers May Use The Cloud

According to a BNA Law Week article by Lance Rogers - Caching Client Information in ‘Clouds'
Is Permissible With Proper Precautions - the Iowa bar's ethics committee has ruled that lawyers may store information in the computing cloud. According to Rogers:

Iowa lawyers may store client information and other data on a third-party vendor's servers rather than their own computers, so long as the lawyer has unfettered access to the data and can reasonably verify that sound methods are being used to protect the information...

Iowas attorneys who want to use the cloud must due diligence in choosing a vendor and in examining the terms of the storage agreement.

Putting confidential client information in the hands of third parties has always been a problem. Cloud computing and data storage raise this and other many interesting questions for attorneys. As we move forward into a brave new electronic world the rules of ethical behavior may need to be reconsidered as each new technological advance occurs.

The full article can be found at 80 USLA 715. If you are a Rutgers-Newark Law student you can access the article by going to the Library's main page > Resources > Databases > BNA Web. Scroll down to find US Law Week. The full Iowa ethics opinion can be found here.

Law Schools Still Not Teaching Lawyering

Despite the Carnegie and MacCrate reports, the NY Times reports that law schools are still not teaching law students the art of lawyering. Last Sunday's article by David Segal - What They Don't Teach Law Students: Lawyering - is yet another call for a more practice oriented curriculum in law school. The article details the efforts by law firms to teach first year associates how to actually practice law.

According to the article, the old model of having firms teach associates how to practice may be permanently broken:

... for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.

Clients just won't stand on having an unqualified attorney handle any part of their case:

Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees.

Readers of this blog may recall a recent post about value billing. This is a direct result of this kind of client attitude and the need to measure the client's reaction to the firm's rate structure.

The net result? Again, from the article:

The legal services market has shrunk for three consecutive years, according to the Bureau of Labor Statistics. Altogether, the top 250 firms — which hired 27 percent of graduates from the top 50 law schools last year — have lost nearly 10,000 jobs since 2008, according to an April survey by The National Law Journal.

This is all part of a discussion that may actually result in some positive change in favor of a more practice oriented curriculum.

Fee vs. Hourly Rate

A recent post by Toby Brown in 3 Geeks and a Law Blog - When Raising Rates - discusses the difference between increasing hourly rates and the final fee for the work performed. Brown says:

"Have conversations with clients about pricing, versus rates. At the end of the year, or end of a case, what really matters to a client is the fee. How much did the case or deal cost them? Your rate could be $10 per hour, but if you took 100’s of hours to complete a task, the fee is going to be high. A challenge here is that clients tend to compare pricing on a rate level, instead of a fee level. Use the price conversation to help the client shift their thinking towards fees. In the long-run this will greatly benefit them and solidify your relationship with them."

And, he's right. What really counts is the final bill for services. The hourly rate is just a benchmark on the way to the final fee. Lawyers with a niche specialty can charge a higher rate because the depth and breadth of their expertise will justify the final fee. There is no profession (except, perhaps medicine) where the final result justifies the price of services so much as the legal profession. If an attorney can obtain the right result in a complex case with a minimum of effort the fee, if not totally out of line, is secondary. The result justifies the fee.

GOP Candidates Ready to Dismantle Federal Judiciary

The GOP primary contenders appear ready to tear the federal judiciary apart:

- Perry wants to have term limits on the USSC justices.
- Bachman and Paul want to forbid to the USSC from considering cases involving same sex marriage (although for different reasons, of course).
- Gingrich and Santorum want to abolish the 9th Circuit Court of Appeals.

An article by Adam Liptak and Michael Shear in this morning's NY Times - Republicans Turn Judicial Power Into A Campaign Issue - details the GOP's opposition to some or all of the federal judiciary.

Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.

The complaints are in line with the candidates’ general opposition to federal authority. Like the elected branches of the federal government, they say, the federal judiciary has become too powerful and intrusive.

Liptak and Shear take pains to outline why many of these anti-judiciary positions are completely out of the question. Perry's suggestion about term limits would, of course, require amending the Constitution since Article III, Section 1 confers lifetime tenure on the federal judiciary. Perry's proposal that Congress would have the right to overturn a USSC decision by a 2/3 majority would mean the abrogation of Marbury v. Madison - something Gingrich thinks would be a good thing.

Still, there may be a way for Congress to limit the power of the federal judiciary. Article III, Section 2 of the Constitution provides that the USSC, “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” These and other Constitutional waters remain untested.

ABA Begins Action to Curb Law School Reporting Abuses

In the wake of the scandals at Illinois and Villanova, reported here, an article in the online ABA Journal reports that the ABA Legal Education Section has decided to consider rules designed to penalize misrepresentation of admissions data by accredited law schools.

The Section recently announced a change in the questionnaire designed to elicit more accurate information regarding placement and employment data. For a sample of commentary about the misrepresentation of placement and employment data read the post here in Balkinization.