Louis K. Bonham, counsel to the defendant, has done so.  He reports that the case has now been dismissed – but for want of personal jurisdiction.  According to the docket, Judge Miller’s decision issued on October 23.  It rests on the observation that the only contact that the defendant had with Texas was the airing of [...]]]> I’ve  posted on a lawsuit out of Texas, in which a law student plaintiff sued a lawyer defendant for failing to live up to a “promise” to pay $1,000,000 to any television viewer who could prove him wrong about his theory of a case.  I opined the case was a classic example of puffery, unlikely to reach the merits on that ground.   I challenged readers to prove me wrong.

Louis K. Bonham, counsel to the defendant, has done so.  He reports that the case has now been dismissed – but for want of personal jurisdiction.  According to the docket, Judge Miller’s decision issued on October 23.  It rests on the observation that the only contact that the defendant had with Texas was the airing of a television broadcast: personal jurisdiction on these grounds would make him subject to national jurisdiction where it wasn’t otherwise anticipated.

Incidentally, the underlying motion documents suggest that plaintiff’s claim was even weaker on the merits than I’d argued, as the unedited transcript of of the boast is different than the version in the complaint.  Here’s what plaintiff asserted was said:

NBC’s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”

“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”

But here’s what was actually said:

… And from there to be on the videotape in 28 minutes. Not possible. Not possible. I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.

NBC Transcript, p. 3

This kind of qualifying language makes it even more obvious that the statement was a mere puff. Congrats to Mr. Bonham on his win!

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. [...]]]> In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it.  See United States v. O’Hagan, 541 U.S. 642 (1997).

Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990). 

In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.

I repeat to my students, past and present, and all lawyers: do not do this!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes [...]]]> By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part [...]]]> I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.

I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.

If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.

I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.

Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.

But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.

By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate [...]]]> If you look at opinions, winning in a veil piercing case is pretty easy to define: did the court agree to pierce the veil, reaching through an entity to its shareholders. If you were inclined, you could model success at those terminal moments in cases, asking which factors (described in the opinions) correlated with courts agreeing to pierce.

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate with success or failure early in cases.  Further, assuming that adjudicated motions teach the parties about the strength of their cases, and that they settle strategically, we can even start to learn from the timing and incidence of settlement.

In this post, I’m going to relay some descriptive statistics about the veil piercing successes that plaintiffs achieved in our data. (I’m continuing to pull the data and some text from our paper.)  To those who are getting annoyed by all of these posts, I’m sorry!  I’ve been living with this project for a long time — I’m excited to finally share it publicly.

We coded 550 motions raising veil piercing problems, and 580 non-veil piercing motions, in our 690 cases.  Overall, about half of all veil piercing motions result in plaintiffs advancing their veil piercing claims (but not ending the case), about fifteen percent involve judicial determinations against the veil piercing claim, twenty percent success on the merits (if defaults are included), and the remainder of motions were pending at the time of settlement. (Recall that 2 of 3 cases overall ended in settlement).

Excluding defaults, and dropping pending motions, veil piercing litigation is a story of wild early success: plaintiffs prevailed — in one form or another – on approximately 85% of all veil piercing motions in our dataset.  Many cases had their veil piercing claims still “alive” at the time of settlement.  Indeed, using the most liberal definition, which includes settlement after motion practice as victory, 78% of cases resulted in plaintiffs realizing some value from their veil piercing claims.

But very few cases actually led to veil piercing, on the merits, outside of defaults: only 37 cases, out of 690, contained a judicially-enforced veil piercing on the merits.  That’s around 6%.

Moving parties were less likely to win non-veil piercing discovery motions  than veil piercing discovery (a 67% success rate versus 90% in resolved motions) and plaintiffs were less successful at fighting off motions to dismiss (61% plaintiff prevail rate versus 88%) and summary judgment (62% versus 90%).  One explanation for this effect is that veil piercing motions (i.e., demanding VP discovery, or fighting of a motion to dismiss) are somehow not selected out of cases to the same degree that ordinary motions are: defendants either are too attached to them (think they are going to win when they won’t) or plaintiffs insufficiently so (think they lack settlement leverage when they have it).

The advantage of looking at success and failure at the motion-by-motion level is that it promises a chance to move the problem of selection back in cases to a moment where we wouldn’t reasonably expect for plaintiffs and defendants to have a realistic sense of their chances. We can fairly hypothesize that some independent variables — judicial demographics, plaintiffs and defendant characteristics, legal rules and planning — will affect the parties’ respective successes and failures on (say) the grant rate in motions to dismiss.  As I’ll discuss in penultimate post in this series, that intuition turns out to be basically correct.

Confused?  Read the paper!

David Post argues that heightened perceptions of political extremism are a function of more coverage, not more extremism.

I call it the ESPN Effect – mistaking filtered reality for reality . . .  My very, very strong suspicion is that there has never been a time when there weren’t truly crazy people on all sides of the political spectrum doing their truly crazy things. Maybe 1% or so, or even 0.1% — which is a very large number, when you’re talking about a population of, say, 100 million.  They didn’t get through the filters much in the Old Days, but they do now.  All this talk about how extreme “the debate” is becoming – how, exactly, does anyone get a bead [...]]]>

More Newsboys Equals More News

David Post argues that heightened perceptions of political extremism are a function of more coverage, not more extremism.

I call it the ESPN Effect – mistaking filtered reality for reality . . .  My very, very strong suspicion is that there has never been a time when there weren’t truly crazy people on all sides of the political spectrum doing their truly crazy things. Maybe 1% or so, or even 0.1% — which is a very large number, when you’re talking about a population of, say, 100 million.  They didn’t get through the filters much in the Old Days, but they do now.  All this talk about how extreme “the debate” is becoming – how, exactly, does anyone get a bead on what “the debate” really is?  In reality?

I wonder if the same effect is in play with respect to complaints about law schools and the state of the employment market.  That’s not to say that the former are effective or the latter anything but abysmal.  But the question is whether law schools are worse today at their core mission than they were a generation ago, or the legal job market materially different than it was in the last bad recession (1991).  One possibility is that they are: the academic turn in law school, and the outsourcing turn in practice, combine to make today just worse than yesterday.   I don’t buy the former claim – at all – but am open-minded about the latter.

Another possibility: Above the Law didn’t exist in 1991.  Neither did the clerkship notification blog.  Or the Prawfs thread on the academic market.  Or various law school boards. Each site provides tons of useful information, but may enable us to mistake filtered reality — it’s the end of the law as we know it – for reality – it’s bad, but it’s not distinctly or structurally bad.  Call it the “ATL effect”: all legal market news will seem more dramatic today than it did in 1990.  From bonuses to layoffs, every day is more special than the last.

“Counsel On Call is currently interviewing attorneys with at least one year of solid electronic document review experience for a contract assignment in downtown Chicago. Must have worked as a litigation associate in a large law firm 2+ years. Experience with products liability litigation strongly preferred. Full time, requires a three month commitment. Top tier school and top 1/3 of class required…”

Wow. ]]> Read the last few dozen posts at the Temporary Attorney Blog.  I doubt there are more than a dozen law professors who’ve done temporary document work, so it ought to be a real eye opener.  Especially now that the market has changed.  From a recent job-opening.

“Counsel On Call is currently interviewing attorneys with at least one year of solid electronic document review experience for a contract assignment in downtown Chicago. Must have worked as a litigation associate in a large law firm 2+ years. Experience with products liability litigation strongly preferred. Full time, requires a three month commitment. Top tier school and top 1/3 of class required…”

Wow.

]]> http://www.concurringopinions.com/archives/2009/09/if-you-do-one-thing-today.html/feed 20 http://www.concurringopinions.com/archives/2009/09/professional-responsibility-meets-facebook-another-oops-the-bar.html http://www.concurringopinions.com/archives/2009/09/professional-responsibility-meets-facebook-another-oops-the-bar.html#comments Mon, 14 Sep 2009 22:58:40 +0000 Danielle Citron http://www.concurringopinions.com/?p=20343 Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the [...]]]> Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.”  The Times talked about recent cases where lawyers do violence to their careers through their online activities.  Lawyers blog about judges:  one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence.  Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking.  The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network.  The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).

Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times.  The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him.  But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits).  Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online.  People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous.  As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.”  They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.”  They assume that only close friends are paying attention to their online activities.  All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online.  Maybe lawyers need the lesson too.

Wikimedia Commons Image

They have given less attention to trimming at the partnership levels, due to greater difficulty renegotiating membership interests and draws. One way to enable trimming at the partner level without disrupting a firm is to reinvigorate the partner sabbatical.

Before the 1970s, this characteristic feature of academic life was a staple at law firms too. Since then, however, as the US practice of law changed from a professional calling to a business enterprise, the sabbatical faded. The dog eat dog world of contemporary law practice made such a [...]]]> Amid the deep recession, cyclical and secular trends point to sustained reduced demand for legal services. US law firms have responded by aggressively pruning the ranks of entering and young associates (as Michael Kang’s excellent co-op post today synthesizes).

They have given less attention to trimming at the partnership levels, due to greater difficulty renegotiating membership interests and draws. One way to enable trimming at the partner level without disrupting a firm is to reinvigorate the partner sabbatical.

Before the 1970s, this characteristic feature of academic life was a staple at law firms too. Since then, however, as the US practice of law changed from a professional calling to a business enterprise, the sabbatical faded. The dog eat dog world of contemporary law practice made such a policy unappealing at most firms. Partners worry they’ll lose their books of business and cede ground to their intensely competitive partners for leadership and remuneration within the firm. They are concerned that clients will drop them in favor of other partners or other firms.

Yet the law partner sabbatical has endured elsewhere, including in Canada and England, especially in City of London firms, and even among a handful of US law firms. The partner sabbatical also was periodically revived at some firms throughout recent decades, though usually amid economic booms. Firms dangled the sabbatical as a recruiting and retention device, absorbing the high costs of funding partner draws when partners were not billing fee revenue.

In the current and coming environment, those sabbaticals must be offered on less generous terms, with partners sacrificing draws in exchange for relief from the daily grind.

At present, firms are cutting costs by terminating summer programs, delaying hiring, or offering incoming and existing associates alike deferrals or, as Cadwalader reportedly did last month, sabbaticals. Firm efforts to revise their recruiting and retention programs face a delicate balance in maintaining their appeal as a place to work while assuring that revenues exceed costs.

Partner sabbaticals could be a more appealing way to strike that balance than the delicate dance of managing the size and cost of the newer professional rung. Instead of shrinking the firm by releasing partners or reducing the associate tier, firms would adopt a permanent policy of requiring existing partners to take reduced-pay sabbaticals at designated intervals.

Following the academic model, partners with the firm a minimum period, say ten years, would take a one-year sabbatical at half pay every seven years. During that time, they would render service to the legal profession. This could involve domestic pro bono work, leadership in important professional committees and trips and service to the needy in emerging or developing countries. Or it could involve the partner’s own professional development, as through pursuing graduate level course work in law or another field.

In periodic revivals of the sabbatical, numerous trade offs are reported and debated. These are documented and evaluated in various manuals offering guidance, including a leading reference the ABA publishes. It highlights challenges, including how to induce participation, manage costs, maintain client service, what lawyers do on sabbatical, getting other partners to cover and avoiding letting sabbaticals stigmatize a partner.

The current environment provides an auspicious time to adopt policies simultaneously addressing all these concerns. The policy should be mandatory, offer half pay or less, require designated classes of service activity, and have mandatory programs for partners to cover for those on sabbatical.

Firms adopting such policies would instantly win the affection of the many younger associates now concerned, by associate-targeted firm policies, about their own job prospects and security. It would also have the advantage of reinstalling some dimensions of the traditional professionalism that characterized law firm practice through the 1970s when law firms evolved into businesses instead.

The prevailing cyclical realities and secular trends are economically punishing and there is little reason to believe that a return to the status quo of the 1980s and 1990s is likely. That period may be revealed as a blip in the legal profession’s history.

Instead of running a firm like a business, riveted only on bottom line and promoting cut-throat cultures, the practice of law could return to its erstwhile professionalism, characterized by thoughtful advice to clients, service to the public weal, collegial support among firm members, and cultivation and training of the next generation’s legal professionals.

Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to [...]]]> On-campus interviewing is already underway at many law schools, and law students are obviously worried about their job prospects this fall. According to NALP, law firms had already cut back their hiring dramatically last year compared to the year before. Based on early feedback from law students and firms so far, as well as the number of firms that are forgoing summer programs altogether for 2010, it doesn’t look good for 2Ls interviewing on campus right now.

Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to the hiring system that has been in place for decades now—heavy recruiting of 2L students into lavish summer programs, with a high percentage of those students receiving permanent offers during the following fall of their 3L year. Right now, some firms are simply doing away with summer programs for the time being and freezing entry-level hiring out of law schools. Almost all big law firms are limiting the size and duration of their summer programs, and many are deferring the start date by six months to a year for new permanent associates who receive offers out of their summer programs.

I wonder how many of the new changes to law firm recruiting and summer programs will be permanent and remain after the economy bounces back.

On the more dramatic end, law firms that have frozen recruiting at law schools at the moment might decide not to run summer programs even after they begin to ramp up hiring once again. Hiring 3Ls, or recent graduates on the spot market, would offer law firms a longer track record for each student on which base hiring decisions and save the expense of sponsoring a summer program. Summer programs were a way for law students to acclimate to a firm’s culture and practices, while allowing the firm a chance to observe and get to know law students without formally committing a permanent offer to them. However, summer programs were famously expensive, produced less real work than firms might have liked, and as a practical matter, resulted in most or all summer associates receiving permanent offers anyway. If enough law firms decide summer programs aren’t worthwhile anymore, then firms that try to hire all or most of their entry-level associates as 3Ls or recent graduates, without running them first through a summer program, won’t suffer a competitive disadvantage in recruiting talent.

At minimum, even law firms that continue to recruit 2Ls into summer programs will curtail the lavishness, size, and duration of those programs on a permanent basis compared to what they were during the past twenty years. Boston firms have long limited the duration of their summer programs from May through July, but firms in other big cities, at least when I was a law student, typically didn’t cap the number of weeks that summer associates could work. During my 2L summer (in 1998), I worked and was paid for seventeen weeks as a summer associate, almost to the end of September. This summer, however, I understand that at least one major firm closed its program by July 4. I would be shocked if limits on when and how long summer associates can work aren’t made permanent at big firms across the country, in addition to lower summer salaries and higher expectations going forward.

As part of the two-year program, associates will spend the majority of their time at the litigation-heavy firm attending training seminars where they will learn the practical skills of [...]]]> As I have written before, a teaching law firm seems like one way to bridge the gap between what one learns in law school and the on-the-job training that no professional school can fully offer. I analogized the change to a medical residency and some commentators reminded me that England has a system of apprenticeship which (some noted that medical education is also working on its problems which does not surprise me but is a topic for a different time). Now it seems that Howrey Simon is embracing the apprentice model. According to the National Law Journal:

As part of the two-year program, associates will spend the majority of their time at the litigation-heavy firm attending training seminars where they will learn the practical skills of lawyering, said managing partner Robert Ruyak in an interview.

During their first year at the firm, associates will take classes on legal writing and research and will work on pro bono projects to give them hands-on experience without charging clients. In the second year of the program, associates will be embedded at client sites for several months at a reduced billing rate of between $150 and $200 an hour. They will also continue to take classes on litigation skills such as trial tactics, cross examination, and mediation and arbitration.

Although this move is part of changing compensation at the firm, the program seems promising. Associates in the program will make less but the program will also cost the firm quite a bit. If I were graduating law school right now, this program would certainly catch my attention. In addition, I would bet that this program will create a certain loyalty from the associates. Some will of course leave. But I would expect that an intense yet civilized and constructive training environment will generate goodwill and an actual collegial relationship that can only help Howrey in the long run.

I’d love to know more details about how the program will implement the program so that education and supervision run well. Nonetheless, I wish Howrey good luck and congratulations as it updates an old model for today’s legal industry.

Image: Illustration of The Sorcerer’s Apprentice, Der Zauberlehrling
Source: Wikicommons
From: German book, Goethe’s werke, 1882, by S. Barth

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

[J]urors might easily conclude that they receive second-rate treatment – despite platitudes extolling their invaluable contributions. In our case, for instance, we were informed that the trial would be extended an extra day to accommodate a physician scheduled to testify for the defense. Yet neither the judge nor lawyers bothered to inquire whether that accommodation would conflict with jurors’ schedules, thus ultimately forcing one (unemployed) juror to cancel a job interview and another to rearrange long-standing travel plans.

Other seemingly small matters proved irritating. Jurors were cautioned that they could not drink water during the trial because it would be [...]]]> Recently, I blogged about Professor Robert Martin’s article about his experience serving as a juror. He makes another point in his article that is worth discussing:

[J]urors might easily conclude that they receive second-rate treatment – despite platitudes extolling their invaluable contributions. In our case, for instance, we were informed that the trial would be extended an extra day to accommodate a physician scheduled to testify for the defense. Yet neither the judge nor lawyers bothered to inquire whether that accommodation would conflict with jurors’ schedules, thus ultimately forcing one (unemployed) juror to cancel a job interview and another to rearrange long-standing travel plans.

Other seemingly small matters proved irritating. Jurors were cautioned that they could not drink water during the trial because it would be “distracting” . . . . Moreover, during the morning and afternoon “coffee” breaks, jurors were sequestered in the back room without any amenities – including coffee. And needless to say, jurors were keenly aware that the five- dollar per diem compensation that they would eventually receive would barely cover the cost of lunch, let alone the cost of gas for travel to and from the courthouse.

Yet, paradoxically, when it ultimately came time to render a verdict, our jury was then bestowed with immense power and responsibility.

We subsidize our legal system on what is essentially free labor, for we barely pay jurors for their time. Many employers still pay the salaries of people on jury duty (though not all employers), but even under these circumstances, somebody else (employers) are subsidizing the system.

Imagine the juror who is self-employed and must sit on a two-week contract dispute. She might ask: Why should I be forced to help these two parties resolve their dispute? Why should I, one who has little expertise in their business, contract law, or anything related to their case, be the one to resolve it? Why should I have to sacrifice my time and two weeks of earning money to help these people solve their squabble?

If we are going to have a lay jury system, shouldn’t we at least have society pick up the costs rather than slough them off on randomly-selected people? Shouldn’t we pay jurors the true value of their time? Or at least a reasonable rate?

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in [...]]]> According to Legal Profession Blog:

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.

What should one conclude from this case?

The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .

Additionally, jurors are usually prohibited from taking notes. . . .

In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

Third, many judges disallow note-taking. But in lengthy trials — or even in trials lasting a day or two — how are jurors supposed to remember the details? And in the case Martin describes, the jurors weren’t allowed to take notes about the law when the judge instructed it. I’d like to try an experiment — give a bunch of judges an hour lecture about a specific set of legal rules, not let them take notes, and then see how much they remember. This is difficult even for those with legal training — imagine how hard it must be for those without such training!

Many law professors rail against student-run law reviews, where students select the articles. “How can we let a bunch of amateurs decide which scholarly articles have merit?” so many professors wonder. Professors complain more about this than our legal system, where we have a bunch of amateurs decide cases and apply the law. As Justice Oliver Wendell Holmes once wrote: “[I]f a question of law is pretty clear we [judges] can decide it, as it is our duty to do, if it is difficult it can be decided better by twelve men taken at random from the street.”

At least in civil cases — and perhaps in criminal ones too (this gives me more pause, for the jury’s ability to check the power of the state in criminal cases has significant value in my opinion) — I believe we should have professional juries, with basic knowledge of the law (and perhaps even a full three-year legal education).

In addition to basic knowledge of the law, professional juries should also be trained in the latest empirical evidence that would help them best assess the factual evidence in a case. Jurors should be trained in the studies about the reliability of eyewitness testimony (which isn’t very reliable) so they can weigh it appropriately vis-a-vis other evidence. They should be trained about which cues and aspects of a witness’s demeanor are likely to indicate whether he or she is telling the truth, as currently jurors use their own intuitions in this regard, which may or may not be correct. And so on.

Jurors should be paid a real wage for their services. Currently, we slough off the costs of our legal system on people randomly selected for jury duty.

We’re in the 21st Century, and our legal system uses a method of adjudication that was invented in the Middle Ages. It’s time for a more professional way of resolving legal disputes, one where the decisionmakers are not a bunch of often-unwilling people plucked from the street, forced to upend their lives to resolve the disputes of others, and without the expertise to evaluate the facts and apply the law.

You might be tempted to think that this absence is evidence of us being insulated fat cats, who don’t know or care about what’s happening with our students. But I think you’d be wrong.

For me, the reason is simple: comparative advantage. I read Above the [...]]]> A commentator to another thread chided me for our blog’s relative lack of focus on the rapidly imploding law employment market. We have given sporadic attention to this topic since the pace of law firm layoffs has accelerated. Instead, as the commentator noted, we’ve been generally focused on our usual concerns: writing, the legal academic job market, privacy, cyberlaw, etc. That’s about par for the course for most law professor blogs, from Volokh to Prawfs to the Conglomerate.

You might be tempted to think that this absence is evidence of us being insulated fat cats, who don’t know or care about what’s happening with our students. But I think you’d be wrong.

For me, the reason is simple: comparative advantage. I read Above the Law daily, but I don’t have much to add to their terrific coverage. The underlying economics of the great recession are similarly not something I have much new to add to, though we’ve tried (on the blog) to talk about different ways the law could respond to systemic failure. I assume most readers of this blog have read Bill Henderson’s work on law firm economics and Ribstein’s stuff on leverage, which is a reason that the job market is freezing up. (Though not a complete reason.) A minor point that I have thought about is the role of law schools in making the system worse: I’ve written that law school should be cheaper and shorter, and that the only way to really make that happen is to set schools free of certain ABA-accreditation constraints.

Given all that, I honestly don’t know what more I’ve to add about the effects of the recession on the market for lawyers. If, like every downturn since the 1930s, the economy rebounds in the near-term, I hope that the effect won’t be Generation OMG, JD. If we see structural changes – - the permanent loss of domestic finance transactional work in response to outsourcing, a movement toward Britain’s model of less exclusive attorney licensing, etc. – - then things will be different. It would strike me that any really drastic change in the economics of the legal profession would be more likely to harm expensive private institutions than cheaper public ones, assuming that state funding is somewhat stable (when compared to endowment returns). But I’ve got no crystal ball, and it strikes me as sort of a waste of time to pontificate about wicked things this way coming.

I’d rather stick to things I know about, plodding away, trying to make legal rules and their relationship to individual behavior more clear. It’s a way to stay sane.

A “fire drill?” That’s the term I’ve got for an intense, frenetic, period of work immediately before a sometimes arbitrary deadline, when all hands are on deck, somewhat loopy for lack of sleep. I’ve no idea how the term evolved from, well, an actual fire drill, but it was common practice at the old law firm.

What do you call the last-minute scramble?

Professor Doug Lichtman (UCLA Law School) has launched a new podcast called the “Intellectual Property Colloquium.” The podcasts consist of discussions between Doug the guests, and they last about an hour. Lawyers who listen to them can obtain CLE credit.

The first podcast was with guest Fred Von Lohmann of the Electronic Frontier Foundation on copyright law. Upcoming shows include Stacy Byrnes (NBC Universal) and Professor Tim Wu (Columbia Law School) on DMCA notice-and-takedown, Ed Felten (Princeton University) and Dean Marks (Warner Brothers) on DRM, and me on privacy and social networks. My podcast will be recorded soon and will be posted sometime around the end of November.