Guiding Students From Law School Into the World

It seems that one of the things we law professors can do to help our students develop their identities as professionals and their obligations to the greater society is to incorporate into the law school events that plug students into what’s going on in the “real world.“ I did just this in a small way this week by offering all the students the opportunity to attend and participate in a talk/discussion about the Supreme Court arguments that were heard last week in the DACA case.

The students were invited to attend a portion of my immigration clinic class. Food and pro bono credit hours helped, I’m sure, but the event brought a plentiful group of students I had not interacted with before, who were both knowledgeable about and interested in the issue of the day.  The event lasted only about 45 minutes, but that was long enough to produce a lively and I think informative conversation about oral arguments, professionalism, case theory, the role of policy, administrative law, and of course the specific legal issues raised by the case.

With so much of the law school endeavor focused on exam taking and other tasks that force students into a single-focused, competitive role, bringing them into a discussion about key issues at stake in our country in the moment could likely enhance their connections to their future and help them envision some individual goals they can aim for once out in that “real world.”

Women Also Know Stuff: The Continued Bias Against Women in Academia and the Workplace

To women (and other) faculty members:
I’ve copied the links below to two interesting recent articles on the plight of female faculty members in the academy.
The first addresses the relative frequency, or lack thereof, of women speaking at colloquia.
The second, from a daily science update I receive, identifies some pressures female faculty members experience at a greater level than do males; The likely adverse effects of these demands on indicia such as frequency and depth of scholarly “output” are clear.
Do any of you notice these patterns at your institutions?

Clinical Education in Tumultuous times

Having recently returned from the AALS Clinical Conference, which was focused on engaging in clinical legal education during tumultuous times, I’ve had a thought percolating, one about which there was little occasion to address during the conference:  how do we manage, balance, and relate our own personal political activities “in these times” vis a vis our students?

Do we inform our students of our “after hours” activities? Invite them to join us? Encourage them to engage in their own, if they can find the extra time, given their studies and case work? Encourage them to find the time?

Or would this be a mistake? Might this type of encouragement alienate our students who don’t agree with our own political views and accompanying activity, making those students uncomfortable in the clinic we operate?

How have the rest of you out there been handling this?

Drawing the Line — Ethical Advocacy

Where is the line drawn — what is the best practice — between zealous and ethical advocacy?
This question arose during this year’s immigration clinic, as we represented a juvenile from Central America. She was eligible to apply for legal residence pursuant to federal law, but first needed a Probate/Family Court order that, among other things, declared that she needed the protection of the Court. But before we got into court, our client got pregnant. Technically still entitled to the ruling, we nonetheless decided to wait until she gave birth. After the birth, she moved out from her mother and in with her boyfriend. At that point, theoretically still eligible for the Probate Court order, did she remain a minor in need of the Court’s protection? Or was she now a mother herself who needed to protect her own child? What might Congress have intended for these situations?
Law practice, my students learned, forces upon us all kinds of unexpected questions.*
*For identifying and dealing with these issues, my student received an award from a Law Student Ethics Award from the Association of Corporate Counsel, Northeast Division

The Heart of a Justice

It’s interesting that, regardless of his conservative bona fides, Justice Scalia’s “best friend” on the court was Justice Ginsburg, one of the more liberal Justices.  The two, and their spouses, apparently socialized regularly.   As a law professor who works with students on a daily basis, I hope this aspect of Justice Scalia can provide a lesson to students and us all. This friendship of opposites demonstrates that a person’s humanity is measured by far more than the sum of one’s political views.

Clinic Supervision during School Break

Here’s some questions I’ve been asking myself about clinical supervision in the course of intense preparations for an upcoming immigration court hearing:

  • What is expected of students during school break? What should be expected of them?
  • When should a student insisting, “I want to do it even though it’s break time” be accepted by a supervisor/faculty member? Be rejected?
  •  If school breaks are important, which is a given, as all US law schools have them, is it a mistake to even PERMIT students to do case work during that time?
  • If students continue their case work during breaks, what might they be forfeiting? What harm might they experience – e.g., income earned during this time in part-time work, family re-connection time…
  • Are any harms offset by the beneficial work in which they’re engaging, the service they’re performing, the learning they’re gaining?
  •  Where does all this leave the clients whose cases need concentrated attention during these breaks? – To the supervisor/faculty member?

Have others out there considered these questions? Come to any conclusions? Want to share them?

 

Best Practices in Counseling? Ethical Practices in Counseling?

This morning, on the WBUR (Boston) radio station, a criminal trial professor (from New York) was discussing the case of Dzhokhar Tsarnaev, recently convicted of the bombing of the Boston Marathon two years ago, with hosts Margery Eagan and Jim Braude.

As you may be aware, the punishment phase of the case began today – the question is whether Tsarnaev will get the death penalty or life in prison. The hosts asked whether the defense would be able to argue, to mitigate the punishment and try to avoid the death penalty for their client, that the older brother, Tamerlan, who died in a police shootout (and after being run over by his brother!), was the one truly behind the bombing — essentially that Dzhokhar was “under the influence” of his brother.

The lawyer being interviewed was asked whether, if Dzhokhar doesn’t want to use that defense, but rather considers his brother to be a hero in avenging US aggression overseas (comments he scrawled in ink and blood on the tarp covering the boat in which he hid before being arrested), could Dzhokhar deny his lawyers permission to use that defense theory. The lawyer said that it is clear that he could not forbid his lawyers from arguing that, and opined that these were merely “trial” tactics that are not in the client’s control, but rather in the hands of the lawyers.

I was frustrated that the radio show was not taking calls, as I was eager to dispute that conclusion, and to point out that this type of lawyering is far different from that which we in the clinical community practice as we guide our students through the principles of client-centered lawyering. It was anathema to me to hear the role of the client completely discounted.

Criminal law is not my expertise, but it made me wonder whether my assumptions about clinical teaching don’t apply in criminal and/or death penalty clinics. In a death penalty case, after conviction, at the sentencing stage, does the defendant lose the right to control his/her defense? I’m eager to hear the views of those teaching criminal clinics.

Best Practices in Interviewing – an Ethical Conundrum from the Office of an Immigration Clinic

In recent years a term has been coined describing the unfortunate links that have grown up, over the past nearly 20 years, between immigration law and criminal law: crimmigration. Many criminal lawyers have realized the need to educate themselves about the pitfalls they can inadvertently create for their immigrant clients when recommending various plea options, pitfalls that can result in deportation. Crimmigration is also relevant on the other end of representation – during an initial interview. It is at this point in the representation, the beginning, or even “before the beginning” (the person may not yet be a client) when the lawyer, or student-lawyer, is receiving details about the case, that difficult lessons about interviewing need be learned. It is at this point where student supervision in an immigration clinic reminds me of criminal defense.

The theory of criminal defense is, of course, that the state needs to prove its case against the defendant. Because the defendant is not obliged to help the state do that, it is less important that the client tell the lawyer “what happened” than for the lawyer to ascertain “what evidence the state has” against the client. To a large degree, this is also true in immigration defense, particularly so since harsh immigration laws were enacted in 1996 and 1997, both making many more activities deportable, and removing several avenues of defense against deportation. While not arising weekly, often enough, in response to the student telling the potential client during an initial interview, “you can tell me everything, and I need you to; everything you tell me is confidential,” the client does. At this point, the client might reveal details — often about conduct that may have an adverse impact on the case if disclosed to the government–that may even make the person either deportable or wholly ineligible for the relief being sought.

So, can the client “tell you everything?” Do we really want to teach our students to use this terminology? Is it the “right” way to practice? Is it the “best” way? Or is it naïve, essentially serving the government’s interests and not the potential client’s?

A Reluctant Technologist – Best Practices for the 21st Century

From a reluctant technologist:  For several reasons, this year we’ve instituted in the clinics at the law school an email security program to boot-strap onto school’s email system we’ve been using to communicate with our students. We did this for a few reasons.  First, we realized that, once the students are not longer in the clinic, if we continued using their general emails, the confidential client case information in those email accounts will remain in their possession.   So, we needed to establish a dedicated email system that would be used exclusively for students’ (and supervisors’) confidential client communications, one that would not follow the students with them when they left the clinic. In addition, these dedicated email addresses can also be used by clients, who are becoming more attuned to the internet and especially email, so they can communicate with their clinic students in a “safe” environment. Finally, these confidential emails are always available to the clinic staff, even after a student leaves the clinic, so that we are able to access this information if it is needed for a case.

 

I was a reluctant participant in this project, feeling that, and fearing that, I was becoming obsolete, given the myriad of technological interconnections in which we, as lawyers and clinicians, must become not just familiar, or proficient, but outstanding.  Also, “Best Practices” for legal practitioners remains open to argument, particularly as the technology, and attempts of outsiders to “invade” these systems, becomes more sophisticated.  It seems that, as soon as one advance is made, it becomes obsolete and needs updating.  This is difficult to keep abreast with, particularly difficult for law school clinical programs, which often do not have the resources to maintain the continued vigilance that seems required these days.

 

For now, though, we’re “all set.”  Let’s see how long that lasts …

Being in the Moment with our Students

About a month ago, when the President announced that he was taking executive action to address various issues that would assist about 5.5 million immigrants in this country, lawyers, legal services offices, religious organizations, and law schools around the country stepped up to organize, even at the very busy time of year’s – and semester’s – end, to help in whatever way they could.

For law school immigration clinics, and even for law students not enrolled in clinics but interested in helping and dipping their toes into immigration, students and their teachers experienced, in this call to action, “being in the moment” – with their teachers, with their clinics, and with the people who they will help. That immigration clinic faculty all over the country naturally took up this role modeling, while an automatic response to real need, is both a testament to them and a meaningful example law professors can set for their law students. An issue arose. People needed help. Law students were invited to participate, with their teachers, to help those in need. Law school clinics teamed up with local legal services providers. With religiously-affiliated groups. Community-wide events are being held. Everyone working toward a common, worthy goal. Students witness, and participate in, activist, justice-centered lawyering. That’s best practice.

Prepared to Practice?

This article in the New York Times is about a different profession, but it seems familiar.

http://well.blogs.nytimes.com/2014/04/24/are-med-school-grads-prepared-to-practice-medicine/?_php=true&_type=blogs&_r=0

“Don’t Skimp on Legal Training” NYT Editorial by Chemerinsky & Menkel-Meadow

CHECK THIS OUT:

Teaching the Millennials, Part 2: The Classroom is Alive

My January 21 blog entry about how to best reach, and teach, the “miillennials” in law school, an issue raised in the fall 2013 article by Professors Benfer and Shanahan, highlighted several attributes of these students.  While noting that these students’ preferences are particularly well-suited to clinical education, I neglected to mention other aspects of the law school curriculum to which the students’ inclinations are well-suited.  Their orientation toward service, desire to contribute to the greater good, comfort with frequent and multiple forms of feedback, and enthusiasm for using real life opportunities for learning suggest that we can build into our curricula productive classroom engagements through a variety of experiential collaborations.   At UMass Law, we are taking advantage of these possibilities through a pilot course entitled “Community Research Project,” which satisfies our third semester Legal Skills requirement.  During the pilot semester this fall, Professor Shaun Spencer guided students to develop their lawyering skills and values in a real-world context.  Students in the class worked in teams to plan, organize, and complete a legal research and writing project involving constitutional, statutory, and empirical questions in support of an effort to amend the Massachusetts involuntary commitment statute.  Through this collaborative effort, students enhanced their skills in legal research, analysis, and writing; and developed skills in problem solving, interviewing, professionalism, and teamwork (they worked both on their own and in groups).  

Many of the suggestions made by Benfer and Shanahan can be tested in such collaborative projects. First, students’ experience in an ongoing process, requiring give-and-take with the “client” organization, can challenge their focus on short-term achievement (grades) rather than long-term success. They can experience critique of their work product not as destructive or insulting but as a way to help them become better lawyers by learning the importance of attentiveness to their clients’ needs.  They can experience the internet as just one of a number of tools to be used in their own law practices, learning over time that instant answers are often insufficient to help them develop the necessary lawyering skills of critical thinking.  

Courses such as the Community Research Project undoubtedly raise many issues for faculty, including how to choose the partner organizations, “who’s in charge?” — experiential learning/legal writing/skills directors/others, grading/assessment policies, students’ rights to object to subject-matter of projects, appropriate student preparation, use of journaling, and more.  Our faculty will be considering these issues soon as it decides whether to permanently incorporate this course into the curriculum.

For those interested in learning more about this project, Shaun and I will be discussing at a conference session, “Bringing Outside In: Social Justice Collaborations in the Legal Writing Curriculum,” this June 29 in Philadelphia during a one-day workshop on Social Justice Collaborations in the Legal Writing Curriculum, just before the start of the Legal Writing Institute Conference. 

 

  

 

Law Firm Partners: Seeing the Future

In “A Lawyer and Partner, and Also Bankrupt,” James B. Stewart of the New York Times [http://www.nytimes.com/2014/01/25/business/partner-in-a-prestigious-law-firm-and-bankrupt.html?_r=0 ] yesterday contextualized the plight, even for large-firm lawyers, of the constraining forces in the legal profession, while linking the fall-off in law school applications to this “widespread malaise.”   Stewart highlights the story of Gregory M. Owens, a 55 year-old successful Wall Street lawyer and former partner at Dewey, Ballantine, Bushby, Palmer & Wood, and after a merger, Dewey & Leoeuf.  Mr. Owens, who still works at a “eminent global law firm,” White & Case, has just filed for bankruptcy after being demoted to a nonequity “service” partner.  Service partners neither share the risks nor rewards of the law practices and generally do not have their own clients; thus, their salaries are held to levels far beneath those of equity partners.  When Mr. Owens declared bankruptcy, his listed annual salary $375,000 a year and, while clearly more than that earned by most, it is not sufficient to satisfy his New York City-based expenses, which include upwards of $10,000/month in child support and alimony, $7,500/month rent, and all the rest.

The recent growth of the service or nonequity partner (by the end of 2012, 84% of the largest 200 law firms maintained service partners, up 20% since 2000) is no doubt troubling for aspiring large-firm lawyers.  It signals that these firms are having trouble maintaining the high salaries of the lawyers already in their firms.  The service partners are the most vulnerable of all, as they are often not the rainmakers, and “not economically viable,” according to an expert in law firm management.  Scott Westfahl, professor of practice and director of executive education at Harvard Law School, suggests that, in order to protect their job security, these law firm employees must develop a “deep expertise that’s hard to find” elsewhere.   Professor Westfahl warns that, even with this additional expertise, “[t]here’s no job security”  —   even full equity partners are under growing pressure by clients who are demanding more accountability, resulting in more and more partners being “de-equitized.”

One suggestion offered by an equity partner interviewed for this article for those in practice today: periodically reinvent yourself and be prepared to work “more hours than rainmakers” to justify maintaining high salaries.

Given this current picture of the large law firm, what other suggestions might be gained from Mr. Owens’ story, for those of us involved in legal education as either professors or potential law students?  Perhaps we all might realize that “following the money” may not necessarily make for a successful career.  Maybe if law professors structured their curricula to support new lawyers who “follow the people” — both individuals and small business people in our communities who need but cannot afford legal assistance — these new lawyers would see that they could build satisfying lives in the law, ones that, while not necessarily supporting staggering material wealth, would nonetheless support interesting and appreciative clients, constructive and supportive relations with colleagues, gratifying intellectual challenges, a decent way of life, and constructive participation in our society.

Teaching the Millennials

Just appearing in the Fall 2013 edition of the Clinical Law Review is an astute and riveting article by Emily Benfer and Colleen Shanahan, “Educating the Invincibles:  Strategies for Teaching the Millennial Generation in Law School” that should give us all pause, especially those of us now teaching our second and third generation of law student.

After describing specific types of nurturing that this generation experienced during their formative years, the article provides detailed and specific strategies for teaching these students, who were born between 1981 and 1999. It is assumed that, because of the particular formative experiences these students experienced as children, they have distinct needs, as learners, than did those of other generations, and that, if we want to “reach” them most effectively, we need to understand first who they are, so that we will be able tailor our teaching to them, in both the traditional and clinical types of classrooms.

The authors see these students as “confident and optimistic,” “service and cause-oriented and want to contribute to the greater good.”  Yet they are also described as pressured, impatient, sheltered, and privileged. Because they have been told they are special, they can seem to have a sense of entitlement.  Their assumption that short-term achievement equals long-term success causes them to focus on grades and not on the processes by which their grades are achieved.  They do not expect failure, so are often surprised when their performance does not result in high praise.  Again, because they were taught that they are “winners” simply for participating, they are accustomed to receiving awards for just that. They can become uncomfortable with criticism and  “aggressive and even caustic when criticized.”

Further, according to Benfer and Shanahan, being inseparable from the internet, these students are able to take in massive amounts of information simultaneously and consider themselves to be efficient multi-taskers.  Yet, because they are accustomed to instantaneous answers that do not require deliberation or examination, they may not have developed the tools to extract the depth of information necessary to develop critical thinking.

The types of learning environments preferred by Millennialists are made-to-order for clinical professors.  According to the authors, these students thrive in learning environments that are self-directed, interactive, collaborative, team-based, and hands-on; and that employ frequent and multiple forms of feedback, multi-media, and stress simulations and real life opportunities for learning.

On the other hand, because of their common experiences with teamwork, the authors caution that these students may be uncomfortable working independently, perhaps due to the higher risk of personal failure.

Especially if you’re engaged in clinical teaching, do you recognize any of these traits in your recent students?  Have they chafed at independent work?  Been so over-confident that they have prepared insufficiently for court or other case responsibilities?  Pushed back at any meaningful critique?  Seem to feel they are entitled to that “A,” regardless of the difficulties they had with their class and/or case responsibilities?  Expected results to come not from hours of work but from an initial impression gained while reading a couple of pages?   If so, you will both enjoy and find helpful “Educating the Invincibles.”