Sunday, January 30, 2011

Law School Goes Ninja?

Ever since the New York Times (9 Jan 2011) wrote about the debt accumulated in law school, stories about the changing market for law graduates have been emerging. The key finding is that there is now a bifurcated market for law graduates.

This is something Bill Henderson has been commenting on for a while now. Law job starting salaries are now located at two points: high--$160,000 and low--$60,000. Whereas we used to see this as a spread across the two hemispheres of law, it's now observable mainly in the corporate hemisphere. Essentially, the high earners are on a potential partner track (not guaranteed though) while the others are grunts.

So when Above the Law writes about law graduates having a barely legal future, the situation begins to get serious as perceptions gather strength. The cause? American Lawyer reporting that WilmerHale has opened an inshore outsourcing centre in Michigan and is advertising for "discovery attorneys" who will do document review at a full-time salary of $60,000.

The call is that law schools must respond to these changes but how? With the tyranny of US News & World Report law school rankings hanging over their heads it is rather difficult to see how they can do much. Potential law students will have to rely on less than neutral and objective evidence for some time longer.

Above the Law argues for two hemispheres of legal education. One that graduates the future partners of BigLaw and another that produces "discovery attorneys". 

Although some think this is peculiarly American problem, it is one that's crystallizing here in the UK also. I've referred to corporatizing legal education here--designed for instant practice. This is in spite of many law school academics thinking they are providing a liberal arts education.

What we've seen in the UK is a disjunct between the numbers of law students coming into the academy and the numbers of jobs available. For many the problem is that the academy is producing too many law graduates and should be more sensitive to job availibility rates. I have dealt with some of this elsewhere.

While we don't have the US News & World Reports  to worry about, we do have newspaper rankings and national student satisfaction surveys and more. University vice-chancellors and deans fret over these interminably. They aren't, however, as catastrophic as the American versions. Yet from next year universities' funding models will be radically overhauled and students will be enmeshed more deeply as consumers and consequently more demanding.

The UK has its hemispheres and we can see the differential hiring procedures occurring. There is a rise (but I don't have statistics) in the hiring of contract lawyers. But there is also a big rise in the use of paralegals and I don't mean those trained to be paralegals. Rather the unemployed would-be lawyers are turning to paralegaling in the hope that a training contract might open up while they are there.

What will entrench the stratification of the market is the opening up (de- and re-regulation) of the legal services market that's now taking place. Fewer jobs will need to be done by fully-qualified lawyers. They can instead be carried out by a range of people qualified for certain legal and quasi-legal tasks. This is where corporatized law meets Tesco Law.

The US legal profession still thinks it can maintain a headlock on the control of the profession. How long for? At the expense of a cheap shot, Mubarek is finding a 30-year rule coming to end; Tony Blair only lasted for 10 years before he was ejected. Permanent monopoly becomes increasingly hard to justifiy, especially in a global market.
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Saturday, January 29, 2011

Your Corporatized Degree is Ready

(thanks to markpeterdavis.com)
The full organizational takeover of the professions is close to hand. Two stories in the Guardian give it to us straight.

The College of Law and BPP, both private legal training companies, have introduced 2 year law degrees with an emphasis on preparation for practice rather than being educated in the law. According to this story one student has already turned down an offer to study law at Oxford to do one of these.

The degrees will cost £9000 a year, cheap by US standards, but expensive by those of the UK. Trouble is as they are companies, students aren't eligible for subsidised loans. And because the work will be intensive, the schools recommend that their students don't do any part-time work.

In the second story KPMG has sponsored a BSc degree in accounting at Durham University. The Guardian says:
The KPMG-Durham University accountancy BSc will host 75 students – selected on the basis of having achieved at least an A and two Bs at A level – spend their undergraduate days in a deeply unromantic blur of accountancy lectures and part-time work for the firm. In return, KPMG will cover tuition fees, pay students a salary during the course and give them a job. The firm says such schemes could come to account for the majority of its trainee intake.
As is suggested in the article, law firms will surely join in the melee so as not to lose the best candidates to the accounting/consulting firms, or banks perhaps.

A race has started. For in the article there is the telling statement:
Supermarkets Morrisons and Tesco, and Harrods, have launched similar schemes.
It does seem as though Tesco Law will become a reality. Who will get them first?

I mention this because at Law Without Walls one of the discussions was about the future of legal education and what it would signify in the future. Hazel Genn, dean of UCL law faculty, said she was concerned whether legal education as a liberal arts degree was endangered.

I fear it is. I've always thought that if we aren't careful the academy will join in this race to the bottom and abdicate its educative function in exchange for training.

I hope not. Let's hope we, or too many others, don't become like the hairy frog fish....



H/T @SobukiRa
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Wednesday, January 26, 2011

Why Do Lawyers Bill They Way They Do?

(thanks to mybikesforum.com)

I googled for images of bills and got this. Wild Bill reviewed this Vanquish and I fell in love with it, so I left it in.

In Law Without Walls the students have to undertake 'Projects of Worth'. One of the students emailed me today with an interesting problem.
My project of worth is alternative strategies to the billable hour. I have read about the topic and I found that there has been plenty of research on both the pros and cons of the billable hour and reasonable alternatives to it. 

Therefore, my partner and I wanted to ask some of the LWOW mentors for advice on how to approach the project. I would like to research, through interviews, a new aspect of the legal billing world that is practical and can be used by either attorneys or clients, as opposed to just writing a redundant paper. I was wondering if you have heard of or knew of any ideas/narrower topics that legal academics have been asking about/looking to research relating to alternative fee arrangements and the billable hour.
This is a tricky one and my response went thus:
This is an interesting area, not so much for the technicalities of the topic, on which you rightly say there is quite a bit. From my perspective it is the cultural aspect. Why are lawyers so wedded to a system that everyone else uniformly hates? How many other types of business use their method? Not so many, I guess.

Lawyers would probably say that their work is replete with uncertainty and contingency and therefore doesn't permit successful use of alternatives. Rubbish! We know that Quin Emmanuel, a successful litigation firm, uses contingency fees to escape billable hours. And plenty of other businesses are full of uncertainty, eg, banking and consultancy.

Now we know in the last couple of years--recession crisis time--it was thought (look at the discussions on Legal OnRamp) that the billable hour would die. If so, then its death was foretold a trifle early. It still reigns. So at best lawyers paid lip service to change.

And there is the crux. Lawyers are resistant to change. Of course law is built on new ideas but also systems of precedent, authority, respect for the past. Lawyers are conflicted.

I would look at this comparatively across industries and see how change was managed and how it could be transported to law. If you took banking as an example then you could contact and ask Peter Kurer who has been both general counsel and CEO of UBS. I think you could interview people in other industries about what they do in their industries (obviously service industries) to their own clients and then how they feel about their lawyers' practices in billing and service.

I think you have to start with the idea that law is like Alice in Wonderland where the Red Queen makes any word mean what she wants. Change would have to come both from within and outside. But perhaps the essential question is what is it that lawyers are actually doing for their money? As professionals they are supposed to be applying expertise to problems (a la Susskind), so what is their expertise and how should it be monetized?
I received a comment from Peter Lederer on this who said:
It is indeed interesting. For me what comes to mind is flat fees. A divorce for x, an acquisition of a company valued at $500m costs y. Firms that do this know how long it 'usually' takes and charge accordingly.

'But there could be cost overruns!' Sure, but how about the neurosurgeon whose brain surgery turns out to last 9 hours rather that the expected 3? Or the airline pilot forced into a holding pattern or a diversion for many hours? No change in fee or compensation, is there?
With which I agree.
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Sunday, January 23, 2011

Can Lawyers Use Data Well?

(thanks to toonpool.com)

My friend, Peter Lederer, sent me a picture--an infographic to be precise--that compares three phones with entertaining and useful visual cues.

Lawyers have to handle complex data in big transactions and especially in litigation. They don't receive any training in this. William Twining in his work on evidence has developed Wigmore's evidence charts which is now beginning to catch on.

On the whole lawyers don't know what to do. This was brought home to me when I saw a graphic claiming to explain who was suing who in the mobile business:
This is incomprehensible. And worse than useless.

Can it be done better? Yes, it can be turned into a thing of beauty. Look here:
It makes perfect sense without struggle or incipient myopia.

With so much data flying around us these days, we need to know how to handle it and present it in meaningful ways. David McCandless, as I've mentioned before, is one such visionary. Watch him talk at TED:


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Tuesday, January 18, 2011

How Have the Lawyers Escaped Culpability?

(thanks to OneForAll)
The BBC showed a documentary tonight about the banking crisis and casino capitalism, which ties in nicely with another documentary released recently called "Inside Job". The BBC covers the British scene while Inside Job is mostly American coverage.

In both films the bankers are shown to be reckless gamblers who have yet to show any remorse for their actions despite Bob Diamond's (CEO of Barclay's) plea that the time for remorse and apology is over. It was encouraging to see the Deputy Governor of the Bank of England assert that capitalism that doesn't permit banks to fail is awry. Probably the politicians haven't quite got that yet.

Chris Blackhurst, the City journalist for the Evening Standard, makes the point in his review of Inside Job:
But if there's a criticism of Inside Job, it's that you're left supposing a group of bankers acted on their own. Of the accountants and others who supported them, there is no mention. Nor of the uncritical media.
For a long time now I have wondered why the lawyers involved in the financial world have escaped blame and culpability for their roles. It was brought home to me when discussing Gillian Tett's Fool's Gold with an ex-general counsel/CEO of a large investment bank. He said Tett completely ignored the lawyers and others. And he didn't know why.

I accept it is unlikely that the lawyers were the masterminds. Their mentality wouldn't allow it. And I'm sure they would claim only to be following orders, mere underlabourers. If Stanley Milgrim's experiments on authority teach us anything, it is that people are unfortunately easily gulled into following authority and the crowd. I suppose it might include lawyers, those masters of hyperrationality.

It was the lawyers who drafted the agreements that made it all possible. It is perhaps feasible they, along with so many others, didn't understand what the hell was going on because it was too complex. Yet lawyers thrive on complexity.

In Tett's book they appear implicitly. The banks strived to have regulation reduced or eradicated in the sphere of derivatives. It had to have been the lawyers who were drafting those new regulations or opinions decrying over-reaching regulation.

Is there hope? A glimmer. The New York Times reported recently that
In numerous opinions, judges have accused lawyers of processing shoddy or even fabricated paperwork in foreclosure actions when representing the banks.
Maybe this is the beginning of an accounting that must occur. Sure, these cases concern individuals' homes and livelihoods and not the big institutions. But it is at the behest of those institutions that this situation was initially created. It's like a Mexican Wave through a football stadium.

So the media is beginning to catch up and let's hope the regulators don't chicken out. I'm sure they will be watched.

(Robert Peston)

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Friday, January 14, 2011

Law Without Walls Kickoff

It's the Kick-Off for Law Without Walls this weekend ((15-16 January 2011). We have 23 law students from University College London--site of Kick-Off--Peking University School of Transnational Law, and US law schools: Miami, Fordham, New York Law School, and Harvard.

The program is packed with seminars on how to interview elites, planning group projects, interviewing thought leaders about various topics. We have, for example, Chris Kenny from the Legal Services Board, Al Giles of Axiom Legal, Carolyn Lamm of White & Case and past president of the ABA.

The faculty include Michele Beardslee, Bill Henderson, John Flood (me), Hilary Sommerlad, Rob Rosen, Bruce Green, Trish White, among others.

Our idea is to take ideas of globalization and change seriously then organize the program to enable students to be ready for this new era. No other law school is really accomplishing this.

More information on this at Law Without Walls.
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Wednesday, January 12, 2011

"Conviction" 3


Conviction
Production year: 2010
Country: USA
Cert (UK): 15
Runtime: 107 mins
Director: Tony Goldwyn
Cast: Hilary Swank, Juliette Lewis, Melissa Leo, Minnie Driver, Sam Rockwell

On general release, Friday 14 January 2011.

Links to other websites of interest relating to topics in the film:

The Innocence Project, New York
Innocence Network UK (Has 30+ university projects)
Guardian article on UK innocence projects
Kenny Waters' case file at NY Innocence Project
Interview with Betty Anne Waters in Guardian
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Tuesday, January 11, 2011

"Conviction" 2

"Tell you what Buttercup"
During law school Betty Anne Waters is desparately trying to think of ways of helping her brother, Kenny, prove his innocence. When we watch the film it all so seems so flimsy, that his blood group, "O", was found at the scene. One of the most common blood groups around but sufficient to convict. (Strains of Rumpole's rhapsody on blood stains in the Penge Bungalow murders....)

At the time of Waters' trial DNA testing didn't really exist so the blood at the crime scene wasn't tested. (If you're unsure about what it is watch any episode of CSI or CSI Miami.

Betty Anne contacts the Innocence Project in New York for help. She receives a positive response provided she can locate the blood samples used and that she is prepared to wait 18 months because of the backlog of cases.

The Innocence Project was founded in 1992 by Barry Scheck and Peter Nuefeld to assist prisoners who could be helped by DNA testing. Both Scheck and Neufeld were counsel on O.J. Simpson's defence team. The project has now gone international and has members in the UK, Canada, Australia and New Zealand.

Locating the evidence in Kenny's case becomes a central feature of the film. Betty Anne receives no help from the police or the court where the evidence was supposed to have been stored. Eventually she finds a helpful custodian who searches and locates the boxed evidence including the blood samples. Independent lab reports exonerate Kenny.

Without the assistance of the Innocence Project Betty Anne wouldn't have been able to help her brother. The film portrays Scheck (Peter Gallagher) accompanying her around Massachusetts as they look for witnesses. Despite the obstacles thrown up against them by the police, the DA, and the system, they succeed.

You can read the case file on Kenny Waters at the Innocence Project. There are original documents from the case as well as interviews with Betty Anne.

It's worth noting that recently doubts about the efficacy of DNA testing have begun to arise. Can DNA become contaminated? Can the evidence be faked? See this article on the faking of DNA. In the UK it has arisen in connection with case of James Hanratty who was hanged in 1962 for murder. The UK Innocence Project, called Innocent, has been trying to show his innocence. But it isn't clear whether the DNA evidence is conclusive or not.

Which reminds me of one line in the film. Someone says it's fortunate that Massachusetts didn't have the death penalty or Kenny wouldn't be around to appeal.

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Monday, January 10, 2011

"Conviction"

Conviction is the true story of a working-class single mother who takes on the murder appeal of her brother. Only it's more complicated than that. Betty Anne Waters has to finish high school, get her college degree and go to law school and pass the bar exam before she can take on the case. Eighteen years later she succeeds.


Betty Anne's brother, Kenny, is a roustabout. Every time a crime is committed in Ayr, Massachusetts, Kenny is picked up by the police as a suspect. Usually the offences are mild ones. But with an unpredictable temper, he is taken in for murder and armed robbery. Two years after the crime is committed Kenny is arrested and charged.

The brother (Sam Rockwell) and sister (Hilary Swank) are close. Virtually abandoned by their parents they only have each other. When Kenny is tried Betty Anne is convinced he's innocent while others begin to doubt. Kenny's former wife and an ex-girlfriend testify against him and he is sentenced to life without parole.

There are many aspects to this film, which goes on general release on Friday 14 January, which intrigue. How do working-class people get access to decent justice? The corruption and suborning of witnessess. The inability of the legal system to make itself comprehensible to those caught up in it.

The town of Ayr is small and everyone knows each other. Rather like Miss Marple's Mary St Mead crime seems a popular pursuit in the hamlet. Once Kenny's youthful indiscretions mark him, it is difficult for him to escape his persona.

Sam Rockwell (who appeared, playing two versions of himself, in the marvellous film Moon) makes Kenny seem a genuinely nice guy except he can turn violent with a click of the fingers. Kenny isn't the most reflective of men but Rockwell brings out the internal struggle that rages in Kenny.

By comparison Betty Anne is more stable and together person. Through her strength of character she makes it through high school and college, but in law school she begins to crack and is placed on probation. There is an element of Educating Rita when her husband finds out she intends to complete her education and go to law school--he won't permit it. And Betty Anne becomes a single mum with two kids, a job in a bar, and her education. Here's where she tells Kenny.


I'm going to say more about this movie over the next couple of days. One issue that is very alive is that of DNA testing, which here is the saviour of the film. Recent British experience throws doubt on this.
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Thursday, January 06, 2011

Robert Rosen and "Lawyers in Corporate Decisionmaking"

Robert Rosen's wonderful dissertation has been published by Quid Pro Books. Here's the description by the publisher:
The recognized study of the disparate roles that corporate attorneys play in representing and advising their institutional clients. Long passed around and cited by scholars and lawyers as an unpublished manuscript, the book is also accessible to a wide audience and includes inside interviews. Professor Robert Rosen insightfully explores the choices that lawyers, managers and executives make about how lawyers are involved in corporate processes.
In the companies studied, Rosen showed that corporate lawyers were repeatedly intertwined in decisions—beyond those regarding mere legal compliance—ranging from finance to production to sales to returns to litigation. But the how, when and consequences of their involvements varied. The book analyzes these variations. It examines relations between inside and outside counsel and the management of the corporate legal function. It locates them in a taut framework of organization theory and institutional behavior, a frame and application since referenced for its cogency and explanatory power.
The author, now a senior professor at the University of Miami Law School, repeatedly calls on attorneys to understand the organizational context of their work. His book repeatedly calls out attorneys who ill serve their clients because they failed as organizational analysts. It has since been recognized by legal, ethical, and sociological theorists as a rich resource of corporate analysis and the divergent roles that lawyers play.
The groundbreaking research was conducted at six major manufacturing companies as Rosen interviewed a triad of inside counsel, outside counsel and managers who worked on particular problems. This novel method allowed self-serving statements (especially by the lawyers involved) to be checked and placed in realistic context. More important, because it triangulated how the legal problem was understood, the method brought out how the legal task had been structured. The frames that the lawyers, managers and organization imposed on the legal problems varied widely—and the sources and consequences of these variations are detailed and explained.
The book’s latest edition is now available from Quid Pro Books, but the manuscript has already had scholarly impact and praise. For example, the Yale Law Journal noted in 1996 that “Rosen’s important manuscript is widely cited in recent literature on legal professionalism.” It has been cited in articles in the law reviews of Boston University, Indiana-Bloomington, University of Maryland, and Emory, and the Law and Society Review. At bottom, researchers and pundits on corporate theory and lawyers’ roles have already had to account for this telling study, and at last they can readily reference it in a quality published format, in ebook and paperback editions.
My own take on the book is also quoted there:
Rob Rosen’s study of in house counsel is a deft, subtle dissection of a complex world where nothing is as it quite seems. In interviewing in house counsel, outside counsel, and clients, Rosen captures, in a Rashomon-like way, the moral character of lawyers’ work–their choices, their pitches, their claims–by which they justify what they do. We see inside the professional black box.
– John Flood, Professor of Law and Sociology, University of Westminster, London

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Saturday, January 01, 2011

Happy New Year

(Orson Welles)
I think it's reasonable to ask if Orson Welles truly was Socrates. Or at least they're twins.

So the point of this post?

Socrates said the unexamined life was not worth living. How did he know?*

I love it.


(Socrates)
(*Thanks to Simon Munnery, Chuckle Club, NYE 2010)
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