Articling: The Last Day of my Law Articles

Well, it finally arrived, the last day of my legal training. As of today, and pending my bar call in June, I will have officially arrived at the destination that I set out nearly 6 years ago. Man, it feels good!

Do's and Don't's for Summer Associates

Across the nation, many 1L and 2L students have just started or are ready to start summer clerking jobs with private firms or government entities. For many, this is the first opportunity to see the practice of law up close and personal. No more teachers, no more books--just loads of real world, worker bee experience! And for those at big private firms, there is also the lure of huge paychecks.

For those summer associates or clerks who have come back to school after being out in the work force, the shift from school mode to work mode may not be that difficult. But for many students, especially those with little or no work experience, the shift can be a tough one. And given that you are vying for a permanent offer, the stakes are high. You want to put your best foot forward, not put your foot in your mouth.

So here are a few pointers for making your mark.

1. Always be on time this summer. For everything. Everyone else can be late to functions or late in turning in assignments or completing their billing sheets, but not you. You are Ms. or Mr. Reliable. At a big firm, you are going to be a Billing Unit, making the firm money. So show some efficiency and dependability, people. Being on time may not always help, but it certainly will never hurt.

2. Make sure you understand each assignment. There is skads of advice on the internet about how you are supposed to talk with the assigning attorney--you receive instructions, and then relay them back to make sure you understood them. Follow that advice.

2a. And once you have the assignment, try to find out what the assigning partner or associate is like. Do they generally say what they mean and mean what they say? Or (more likely), do they have unspoken rules or expectations? Succeeding in practice is learning to adapt to the expectations and work styles of others, so start doing it now.

2b. If the assigning attorney is not clear in his or her instructions, use the extrapolation method to figure out what is expected of you. "Whatever you think you need to do" is not proper instruction for a summer clerk (or junior associate, for that matter). But it is common. I heard it regularly in practice. Try positing certain approaches for the lawyer and see how she reacts, and narrow things down from there to get to an approach that you understand and that satisfies the lawyer.

2c. Your evaluations will be based largely on how closely your work product matches what the lawyer was expecting from you. I guarantee that regardless of the quality of your work product, your work will be given higher marks if you come back with something the lawyer was expecting. THIS IS TRUE REGARDLESS OF WHETHER THE LAWYER PROPERLY CONVEYED THESE EXPECTATIONS TO YOU! The summer associate who turns in brilliant work that was a reasonable interpretation of what the attorney said--but was not what the attorney wanted--will most likely get lower marks than the summer associate who turns in a more average performance but put the work in the expected format or form. And this is why point 2b above is so important.

3. Find a mentor. It might be the person formally assigned to you as a mentor, or it might not. But find someone you can ask sensitive questions. Be careful here--better safe than sorry. You might even decide there is no one you feel comfortable turning to at the firm. (That should tell you a lot about whether you want to work there, shouldn't it?) If that's the case, call one of your friends or professors.

4. Treat every draft you turn in as a final work product. This point is absolutely critical. First impressions are enormously important, and you are wanting to show your prospective employers that you are very, very good. (And that you can spell.) So if someone tells you "just give me what you've got--don't worry about what shape it's in," DO NOT LISTEN TO THEM! Smile, nod, and turn in as perfect a product as possible.

5. Realize that being a summer associate is "law practice lite." Most summer associates today know this, and few if any firms anymore try to pretend that new associates get weekly boat cruises and museum tours. Instead, firms like to talk about giving their summer clerks a "real feel" for the practice of law. But having said that, they will still give you more interesting work than the full time associates, let you sit in on conference calls you cannot bill (THAT almost never happens in practice), and take the time to explain what's going on in a project or deal (so that you think the firm is a really nifty place to work). Remember that this does not happen once you are full time. Just something to keep in mind.

6. Really, really pay attention to your gut feelings about the firm. If it feels like a good place to work, it probably is. If it feels like a nasty, joyless place, it almost certainly is. People can hide anger or misery, but they can't easily fake joy. So if a place feels dreadful, don't go there full time--or if you have to, just go in with your eyes open.

So good luck this summer. I had a blast as a summer associate and did get a feel for law practice--with late nights, unreasonable deadlines, and everything. (And a few baseball games thrown in for good measure.) If you have any questions or comments about your summer experiences, I'd like to hear about them, either as a comment posted to this site or by e-mail at bowman@mc.edu.

Law School: Law School Guidebook - extra copies

See my post not too far down below. I mentioned that I had some copies of my book that were not in perfect condition. I can't see any problems with them. Perhaps a smudge or two. You won't even notice. A bunch of you asked for some. Thanks. I still have a few left. I have no use for them. The bookstores won't take them from the publisher unless they are pristine. I'll give them to y'all for $7 plus $10 shipping anywhere in Canada. Period. Stop. What a deal! Won't last long. Shoot me an email.

Success Stories: Inspiring law student and mother

Check out this brief article about a successful law student, activist and most importantly, mother. I love hearing about those who beat the odds and make great lawyers. Know any great stories similar to this one?

Admissions: Next LSAT (Law School Admissions Test) Dates

A recent comment post asked how and when you register for the next LSAT. You can access LSAT Dates & Deadlines here. The next test is Monday, June 12, 2006. The deadline for registration was May 9. Late registration had a deadline of May 10-19, 2006. Sorry if you missed the deadline.

The following LSAT session is Saturday, September 30, 2006, and the deadline for registration is August 29, 2006. Late registration is from August 30 - Sept 8. You can register either by mail or online or by telephone.

I need to update the dates on the www.canadianlawschool.ca website.

Read this post from March for more guidance on the LSAT - Law, Eh? Law School in Canada: Mastering the LSAT - How to Score 160 or More. Some great answers were given on www.lawstudents.ca. I also posted some information on writing the LSAT back on January 9, 2006 - Law, Eh? Law School in Canada: The LSAT.

Let me know if you have any questions about writing the LSAT, or otherwise. Good luck in June and September!

The Travails of Exam Grading

For the past week or so I have lived, eaten and breathed law school exams and research papers. The old adage is that professors teach for free but get paid to grade. At the end of every semester, I reaffirm my belief in that wise cliche. Grading seems to take forever, and it can be absolutely mind-numbing (no offense, students--just imagine reading the same answer over and over and over and over). But you can't mess it up or take shortcuts because it's very, very important.

But now I'm kinda, sorta done. I've got to go back and check things on my exams and papers again, and I have to make sure my calculations are right. But the hard slogging is done. Hurray! On to summer research projects.

There's a post on The Little Professor blog that captures the grading experience quite well. The blogger in question is an English professor grading undergraduate papers, but she captures the spirit of the higher education grading process quite well. Also check out the comments. They are delightfully vicious.

Teaching the Charter to youth

I have volunteered to give a presentation to a group of Boy Scouts on the Canadian Constitution, and especially the Charter of Rights and Freedoms. It's an intimidating project. It's hard to pare down volumes of legislation, commentary and case law into a 1-hour presentation. I've been thinking that I will probably provide a very brief background after playing a role-play game (a la Lord of the Flies, perhaps?) where the youth will startup a new country that has no historical law, people coming from all different countries and ethnically backgrounds, and a wide open space to live in. It's hard to imagine that this is the situation that our fore-fathers faced. I think they did a pretty bang-up job myself, although many of my colleagues would beg to differ. I don't recall learning too much about the Constitution or the Charter in my grade-school years. Do you? How would you approach this challenge? It's one thing to teach it to adults who have some background...I think it's great that these boys want to learn about the law, and have some interest in our history. I did find a great resource - a Youth Guide to the Charter, which would probably be a welcome bit of information for any first year Canadian law student. Happy reading.

Admissions: Canadian Law School Admissions Web

Check out this relatively new site that I was made aware of today - Canadian Law School Admissions Web. A welcome addition to the Canadian law school online resource pool.

Articling: Articling - Ah, the end is near

Only 6 actual work days left in my law articles! I can taste the end! Wow. I will officially become a lawyer on June 23. My new practice will open its doors unofficially on July 3, and officially on August 1.

I was quite elated to see the following new review of my book on Amazon.com the other day:

(5 stars) Fantastic Book, May 16, 2006
Reviewer: F. Voisin (Ontario, Canada) - See all my reviews

As a future Canadian law student, I was frustrated with the lack of guide material available to Canadian law students. All of the material I was able to find was aimed toward American students. Since there are some differences between the way the two countries educate their lawyers, it was important to find a book like this that addresses the particular elements of Canadian Law School. I highly recommend this to anyone contemplating law school in Canada.

Thanks F. Voisin! I really appreciate your kind words.

Clyde Kennard Finally Exonerated

Breaking news today--in the very same courtroom where Clyde Kennard was wrongly convicted of burglary in 1960, Judge Bob Helfrich of the Forrest (MS) Circuit Court declared Kennard innocent. The Jackson, MS Clarion-Ledger article on Kennard's exoneration is located here. This is a good--if belated--day for the state of Mississippi and the nation.

What strikes me about cases like Kennard's is how difficult they are to resolve, and how the value of their resolution gets reduced when they are not quickly resolved. (Quickly, that is, once they are finally brought up.) First, there's an egregious wrong committed years ago in the name of racism. Second, we belatedly acknowledge the wrong, but we only decide to correct the wrong when enough people play squeaky wheel. And third, even when popular support for corrective justice grows, there is not always a clear legal mechanism in place for achieving it. I addressed the procedural matters involved Kennard's case in a previous post here. It seemed that everyone agreed that Kennard was innocent, but people did not agree how to exonerate his name.

What also strikes me is that while I have only lived in Mississippi for 2 years, I already have seen more than one case of delayed justice play out in the state court system. One might say that this in itself is some sort of progress: justice delayed is better than justice denied. But the fact that such cases are still around highlights how important they are. They are a means to acknowledge and apologize for past wrongs that hold Mississippi and other US states back. And not resolving them--or finding them difficult to resolve--prevents racial reconciliation.

What do I mean? Let me put it this way. In my posts about the Kennard matter, I have not meant to suggest that people opposed to the pardon of Kennard (which was never granted) were racist. That would be a gross--and inaccurate--oversimplication. Some of the people who supported the exoneration of Kennard, including Governor Barbour, had opposed the granting of a pardon. (See the Clarion-Ledger article linked to above). Governor Barbour is of course white, as is the Chairman of the MS Parole Board, who also opposed the pardon but supported Kennard's exoneration.

Rather, what I do mean to suggest is that racial wrongs committed in the past are such important matters that they have to be handled very conscientiously and with enormous consideration. Saying, "I'm sorry, but so-and-so can't get a pardon because he is dead" may sound to one person like an objective statement of the law--but to another person this very statement may be a reaffirmation of racial bias, since fewer whites were wrongfully convicted on falsified charges. Stated differently, if we were concerned about righting such wrongs, wouldn't the legal system have better procedures in place to do so?

So perhaps it would be useful if the following steps were taken to provide a clear means of redress for wrongs such as the one done to Kennard. I have to qualify these observations by saying that I am not an expert in Mississippi law or in criminal law generally, but they seem like reasonable steps.

• First, if it has not already been done, the MS Attorney General's office should provide an official opinion regarding the legality of pardons for dead people. In this case, an opinion concluding that a pardon was legal would have allowed Governor Barbour to act within the law to clear Kennard's name. An opinion that a pardon could not be granted would have spared Governor Barbour some criticism when he stated that he opposed a pardon, since denying a pardon would not have appeared as a discretionary act. (An example of such criticism--a CBS News story--can be found here.)
• Second, if pardons were found to not be available for dead people, the Mississippi legislature should then take up the matter--either to change the rule for use of pardons or to provide other avenues for expedient exoneration as necessary.

I am glad the Kennard case has finally been resolved, but the delay in his exoneration has undercut its societal value. This could have been at least partially avoided if Mississippi had a better process in place for dealing with such cases.

Lawyers: What do lawyers do anyways?

Lots of prospective and current law students have been asking me what the daily life of a lawyer is like. Well, I can't speak for every lawyer out there, but I can tell you what my life is like, and what my colleague's lives are like. I'll probably post a few entries on this topic, and will add it to the second edition of my book.

Yesterday, the biggest thing that I did was to help one of our clients settle a claim for a substantial amount of debt. We did it through a 4 way negotiation, whereby the lawyer for the debtor (other side) put forward some information and an offer to settle the debt. We asked a bunch of questions, then caucused for quite a while. In the end, we ended up agreeing to the offer, as we felt the risk of trying to pursue the remainder was too high. Our client would end up with about $0.70 on the dollar, and I guess they were willing to take that. It probably would have ended up costing them a lot more to try to pursue the remainder, and the interest. One of the biggest parts of the practice of law is advising clients on risk. That was my main job in this matter. There was a chance that all could have been lost. All parties ended up fairly happy, and the matter was finalized very quickly. Had it gone to trial, everyone would have been very unhappy.

Today, I completed a quantum assessment for a personal injury file. Basically, what I had to do was an exhaustive search of case law that typified the type of injury and the circumstances of the accident. I gathered this information and analyzed it, coming up with a range of potential general damages that might be awarded to our client. We will then bring that analysis to the other side and see if they would like to negotiate a settlement. The reason for doing this quantum is to show the other side that indeed the courts have awarded $ for similar incidents.

Today I also completed an application for a new non-profit society, and am in the process of completing two applications for trade-marks. Other stuff I have on my plate right now include a huge donation to a church, which includes just a ton of paperwork; an application for registry of a federal corporation; a sale agreement for some agricultural equipment; a residential tenancies issue; an ongoing debtor-creditor litigation matter which involves some tricky arguing about Limitation periods; drafting of a contract for an online publisher; and a breach of contract matter. Lots of variety. Lots of challenges.

Tomorrow I have to go and make an application in Masters Chambers at the courthouse for an order to release some property. It's not all fancy courthouse stuff in my practice, as I tend to do a lot more solicitor's work, and most of my litigation matters never reach trial.

More later...back to work.

More on Clyde Kennard

Following up on my May 11, 2006 post on Clyde Kennard and efforts to secure him a posthumous pardon, my colleague Professor Pat Bennett was quoted about the case in the Jackson, Mississippi Clarion-Ledger (the largest newspaper in Mississippi). That article appears here. Professor Bennett's comments respond to the Mississippi Parole Board Chairman's suggestion that a pardon is insufficient to rectify the wrong done to Kennard, and that Mississippi's lower courts should instead set aside the conviction. Bennett, who teaches criminal law and is a member of the Mississippi Bar, notes that "Procedurally, I don't see how that could happen."

So what we have here, folks, is a classic case of governmental left hand-right hand injustice. Governor Barbour opposes a pardon not because Kennard doesn't deserve one, but rather because he is dead. The Parole Board opposes a pardon because a pardon does not go far enough to right the wrong done. And according to Professor Bennett, the lower state courts cannot set aside the conviction because they lack the procedural means or authority to do so. It's like when you call a government agency and get passed from bureaucrat to bureaucrat, with each one saying, "Yes, we made a mistake on your taxes [or whatever], but I really can't help. Let me forward you to someone who might be able to." And then the next person does the same--over and over again.

So in other words, it seems that the administrative remedies in question have been exhausted here--if indeed that is a requirement for pardon in Mississippi. I do not know the precise answer to that question, and I have not researched it yet. But if either (a) the remedies have been exhausted, or (b) that is not a requirement for pardon, then I am really at a loss here. Governor Barbour likes to take strong stands, and I will concede that pardons should not be handed out willy-nilly. But this is most certainly not a willy-nilly case. There is a lot of pent-up societal pressure involved here. And pardons are by design a sort of release valve--a way to right (or avoid) wrongs by executive fiat.

Take another look at the Clarion-Ledger newspaper article linked to above. Note how it mentions that the Parole Board Chairman is white and the lone Parole Board dissenter in this case is black. This is a hot-button subject, and it is being characterized as a race issue. Some people might say that it is not a race issue, but it is hard to defend that position when it is seen as dividing people along racial lines. And frankly, if Kennard had been white he never would have been convicted. No one wins if there is no pardon or other resolution to clear Kennard's name. So what's the problem?

We Americans pardon a turkey--a bird, mind you--every Thanksgiving holiday. Can't we also pardon an upstanding and innocent man after his death?

Survivor "Settlement"

Jarvis Googoo, a law student at Dalhousie posted the following at his blog, The Coco Banana, today. He has given me permission to reprint it here at Law Eh? I appreciated his candor and his first-hand take at this controversial topic:

Adam Letourneau blogged not too long ago about the Residential School settlement and the payments made out to the lawyers. I won’t reiterate what he wrote here because he did a good job himself. Rather, I want to yak about the actual payment a survivor is to receive.

First off, I must inform my readers that I and the people in my immediate family have been fortunate enough to have never attended a Residential School. Unfortunately, many from my reserve have.

Anyway, each survivor is to receive about $30,000 on average. In a way, I’m glad that a so-called “settlement” has finally been reached. It’s about time the survivors got some sort of compensation for what they were forced to go through.

However, as an Indian, I’m absolutely insulted that it’s an average of $30,000 per survivor. $30,000?!? What the hell is that? For years of physical, emotional, cultural, sexual, social, and spiritual abuse, this is an insult. For a lawyer, $30,000 is only about half/a quarter/a fraction of what a lawyer [probably] earns in a year. To many Canadians, $30,000 is what one may earn a year (perhaps a little more). So you mean to tell me that, for years of abuse, survivors are given a salary equivalent to one year? For losing the way your people used to live, $30,000 makes up for it? That’s pathetic! While some may feel the lawyer’s contingencies were ridiculous, perhaps settlements and payments need to be reformed so as to consider legal fees. Why should the lawyers be able to collect the settlement of the survivors? The federal government should’ve paid for the legal fees of the lawyers separately from the settlement. The $80 million itself should be divided amongst the survivors, and the feds should pay the lawyers of what would be their contingency fee of the $80 million (but not from the $80 million itself that goes to the survivors). This may sound awful, but how do you think a Residential School survivor feels about this?

Sadly, at the end of the day, perhaps the survivors felt as if they had to take what they can get. As time goes on, more and more survivors (like all humans) pass on. Perhaps they felt that they had to take what they could for now because they were not going to survive long enough to see anything else. $30,000 may sound like a little (it does to me for today’s living standards), but to a Residential School survivor (some of whom are living in poverty, just like many Aboriginal people), $30,000 may be just like a million dollars.

In all, looks like the federal government played a smart yet deceitful delay tactic with the survivors; the longer it waited to try and reach a negotiated settlement, the more likely that survivors would die off, allowing the federal government to pay out less than what it would have had to. Too bad, eh? My sister’s grandparents were both survivors. They passed on some years ago. They never lived to be “compensated” for what they had to go through, and what they had to lose, in order to become “civilized.” Where’s the justice in that? There’s none, and if you’re fortunate enough to make it this far, you get a messily $30,000.

$30,000 doesn’t last very long. But then again, many of the survivors are passing on, so perhaps it’s a “take what you can” thing. Smart move feds! If you were able to delay the settlement for a few more decades, perhaps all the survivors would’ve died, and thus, you wouldn’t have had to pay out anything!

Lawyers: Why Start your own Law Firm?

A reader of my book recently asked me why, and how I was going to start a law firm so early on in my legal career. Great question. Here was my answer:

As far as starting my own firm, yes, it's true. Crazy, but true. I am starting it with a law school buddy of mine, who articled in the same city as myself. I became convinced very early on that I did not really like doing work in a subordinate role. I was a very successful business person before law school, and the large drop in pay, responsibility, and autonomy was too much for me to take. I also found early on that my favourite part of the practice of law was client interaction. I was lucky at my firm in that I was given the opportunity to jump into the deep end and fend for myself. As such, it made perfect sense to set up my own shop and enjoy the benefits of higher remuneration, more responsibility and more autonomy. I figured that if the Law Society says that I can do it, then it must be OK. I have known others who have started a solo practice after articling. It's rare. There are two main obstacles, I have found - $ - most people think that they don't have enough money to cover the first 3-6 months. But, I have found that most people who do start a solo practice do so by going and getting a line of credit for $20-30K and away they go. The second obstacle seems to be a timidness about running a business. Admittedly, many law students have zero background in business. I have an advantage in that I have run a number of businesses, or been an executive in a number of businesses.

Further, I am in an area of the world that is booming, there is no shortage or work, and a relative shortage of lawyers.

Lastly, Carpe Diem. Why not?

Post-note: I was extremely lucky to have such supportive mentors in my firm. As well, I have some fantastic friends in law who have promised support when required.

Following Your Gut Instincts in Changing Jobs

This morning I sat down with a big mug of coffee and a yawn to do my usual online reading and I got some good news. Nemorino, a first year associate in New Jersey who runs the blog Bridge and Tunneled and who reads my blog, has decided to change jobs from his current, good-but-unsatisfying private practice job to one that excites him. Check out his post here. To my enormous satisfaction, he said that in making the change he was following some of my advice from this blog. That is precisely why I write this blog. I was once a student and later a junior associate who could have used some advice, and I am glad he found my blog comments helpful.

So Nemorino is thinking about his career in the right way: he is following his heart and his gut instincts. It is far too easy in practice to stay where you are--to plan your career around the mundane and known present, instead of aiming toward an exciting but unknown future that might not work out. Inertia seems easy and safe; change seems risky and hard. But the payoff can be huge. And the downside of not taking a little risk? Waking up one day with kids and a mortgage, and feeling trapped. Staying in that situation means dying by degrees.

Think of it this way. Making a change means things might not work out. But staying on a career path that is not fulfilling means things certainly won't work out. One of my earlier posts on this subject is located here (look at the bottom of the post in particular).

So Nemorino has chosen action based on his heart over inaction through inertia. Kudos to him. I hope it works out.

Clyde Kennard

There are many good things about living in the Deep South. The pace of life is slower. People are generally more polite. Practically all the food is comfort food. But there are bad aspects to the Deep South, too, and the shadow of slavery and racism still looms large.

So when it was reported in the news yesterday that the Mississippi Parole Board had declined to recommend a posthumous pardon for Clyde Kennard, I just had to groan. The local newspaper article can be linked to here. Kennard, for those who don't know, was a Korean war vet who was falsely accused and convicted of burglary in 1960. His real crime? Trying--repeatedly but unsuccessfully--to enroll in Mississippi Southern College (now the University of Southern Mississippi in Hattiesburg), which at the time was all-white. More information on Kennard is available here. Parole Board Chairman Glenn Hamilton justified the board's decision by explaining that "a more appropriate and satisfying remedy may be available to exonerate the name of Mr. Clyde Kennard." In other words, the wrong done to Mr. Kennard was so egregious that a pardon is not a big enough gesture--so let's deny the pardon.

Perhaps not surprisingly, the board's recommendation against a pardon came after public statements by Mississippi Governor Haley Barbour that he would not grant a pardon, since pardons are for the living, not the dead. (Mr. Kennard died of colon cancer in 1963.) So you have to wonder whether the Parole Board caved to executive pressure. The board makes its pardon recommendations to the governor, so it could be that the board did not want to put the governor in the awkward position of denying a recommended pardon--which I understand has never before happened in this state.

I don't know. But whatever the logic, the decision is astounding. And shameful.

For the sake of argument, let's take Parole Board Chairman Hamilton at his word. Saying that the wrong was so great that pardon doesn't rectify it is like saying a crime we commit is so terrible that apologizing cannot make amends for that criminal act--so we refuse to apologize. That's ludicrous. And as for Governor Barbour's logic, it doesn't explain why President Ford pardoned Confederate General Robert E. Lee, or why other state governors have issued posthumous pardons.

I am not saying that we should not hew to rules. In the field of law, adherence to the rule of law sometimes generates unpopular results, and anyone who has been to law school understands this. The law is in many ways an imperfect proxy for morality, as is well-illustrated by the term "loophole": there is an intent behind a provision of law, but there is a way around it--a way to obey the letter of the law but violate its spirit. Yet underlying much of the law is the notion of morality. That's why we outlaw things like murder, but allow for insanity defenses. And it drives the current national debate about abortion.

The upshot here, as I see it, is that the Parole Board had discretion to recommend pardon and take a least a small step toward reconciliation between the white and black communities of Mississippi, which still remain deeply separated from one another in many ways. And the governor is not bound by law to oppose the pardon. So the pardon clearly can happen. Don't we teach our kids to say they are sorry when they do something wrong? And to put it bluntly, would we teach them differently if the person wronged were dead? Would we tell them not to apologize to their relatives or friends?

This turn of events troubles me even more deeply because this debate is all so unnecessary. Kennard should be pardoned--and other avenues of redress can be explored too. You can be sure that tonight, when I attend my law school's annual BLSA luncheon, this will be a topic of conversation--which illustrates how significant an event this parole denial is.

P.S.--At least I can say that I am proud that Mr. Kennard's case is being championed by the Center on Wrongful Convictions at my alma mater, Northwestern University School of Law. Lawyers get a lot of criticism, but in this case I am glad to be affiliated with an institution that is doing the right thing for the sake of doing the right thing.

Lawyers: Outrageous contingency fees for lawyers?

In a quirky bit of fate, I read an article on CBC a couple of days after my last post, which dealt with mega-torts and mega-$ for lawyers through contingency fees. Often, lawyers will agree to take on a case based on a contingency arrangement, rather than a flat fee basis. The number has traditionally been 30% of the "winnings" in a case. Lawyers are careful to get into this kind of arrangement, because it can end up being a real gamble, unless the lawyer feels very strongly that they have a potential winning case. Contingency arrangements are common in personal injury law, because the potential payout has traditionally been quite high, thus resulting in a strong fee for the lawyer.

The article that I recently read told of the fees that would be paid out to lawyers for a recently settled case involving compensation for victims of residential schools in Canada - where many aboriginal children and youth were mistreated, abused and often neglected. The fees to the lawyers will amount to about $80 million. That's right $80,000,000.00. That's a lot of zeros! One firm from Saskatchewan, The Merchant Law Group, will receive about 1/2 of that. $40,000,000.00. One firm. They have 50 lawyers. That's $800,000.00 on average per lawyer. No doubt, the junior lawyers will see very little, if any of that money, and the partners will enjoy much higher yearly bonuses this year. The firm put forward that many of their lawyers had gone without pay for extended periods, and that they had invested over $2 Million of their own monies into the class action case. They represented about 9000 clients in the class action.

Hey, I'm all about making a decent living as a lawyer. I wouldn't have gone through the 10 years of education, and a year of articling if there wasn't some promise of a decent yearly take-home at the end of the rainbow. But $40M for one firm. That's outrageous. What makes it more outrageous is that it never even went to court. It was a back-room negotiation. The $40M firm admitted that it wished it had gotten more for its clients. I bet they wished that too.

The deal offers any former student a lump sum of $10,000 each, plus $3,000 for each year spent in the schools. An estimated average of about $30,000.00 for each living former student. It is estimated there are 80,000 people alive today who attended Indian residential schools, according to Statistics Canada. The total payout is about how much a secretary makes in one year. The average age of the former students is 60, but many are sick and living in poverty. This is compensation for many years of actual physical, sexual and mental abuse, plus years of post-abuse mental anguish. Now, consider that a large number of the victims are now dead, and no claim can be made. Do you think that the abuse suffered by residents of the schools has not affected further generations? I do. Here's why. My grandmother attended a residential school. I don't know how badly it sucked, but I do know that it did suck. We can all read victim stories to get an idea of what it was like. My grandmother did not get to be with her family for 10 months of the year for years. She got to go home for summer holidays. During the school year, she wasn't allowed to speak her native languages. That means that Cree was lost for her, for her children, her grandchildren and her great grandchildren. French was also lost, but luckily regained a couple of generations later through self-study.

I ramble on...

Here's the point. For something that affected an entire life, and the lives of the victim's progeny, the government is willing to hand out $30,000.00. Gee...thanks on behalf of all the claimants. For working really hard on the case for a few years, all the while servicing other clients, I would assume, 50 lawyers get to share $40,000,000.00. That's enough for many people to retire on. Retire well. Yeah, they worked hard, I am sure, but they didn't get what the claimants asked for. O the other hand, they chose to take a risk on 9000 clients and to put in a lot of time. But, in my opinion, the risk they took does not reflect 40 million dollar bills.

Am I off here? Am I crazy to think that this situation is really out of whack? Am I going against the grain too much as a member of the Law Society to say that this is bordering on immorality? Let me know.

P.S. How much is $40,000,000.00? It's hard to imagine for me, as I have been in student-related poverty for so long. Here's a funny post about how much $1,000,000.00 is. Here's some more trivia on the subject - how much does $1,000,000.00 weigh?

Law in Literature: The King of Torts - a short review

I just finished reading John Grisham's King of Torts. It was a very entertaining read and fairly creative. It was equally frustrating - almost maddening - to read. The main character, Clay, gets handed a supposed "lottery winning" opportunity, but he never really suffers any kind of ethical struggle with himself. I began very early on to think that he was a loser, just like his father who had been disbarred some years before. As usual, Grisham attempts to smooth over the ethical issues, and make it more of a struggle about taking risks to make mega-bucks.

I was pretty shocked by the $ figures peppered throughout the book. I had no idea of the extent of mass tort litigation, or the numbers involved. The book was convincing in many instances - i.e. that this kind of back room manipulation through tort litigation could make or ruin corporations. As well, it was pretty fascinating to read about what the life of mega-lawyers might be like. How anyone could possibly justify purchasing a $42M private jet is completely beyond me, and I would rather choose to live my life in a more simplified bubble than contemplate such things. I often have a hard time charging someone the rates that I do to write them a will, or do a real estate transaction. Taking 30% of a multi-million dollar settlement would certainly cause me to pause, I think.

One other thing that really bothered me about this book, as with some of Grisham's other books, is the seemingly easy transition from law school, or in this case, from being a lowly lawyer at the district attorney's office, to mega-law firm or mega-litigation. Again, Grisham glosses over the idea that it might take more than reading over a few rules of court, or asking a couple veteran colleagues what needs to happen to succeed. I think that you would have better odds of winning big on slot machines than of succeeding in the big leagues of law without proper and lengthy preparation (i.e. years) before taking on the big case(s). But, I guess that is what makes good American legal drama - that David vs. Goliath set-up, and in this case, that emulation of the fall of David from a situation that could have been so easy and ultimately satisfying.

Last-Minute Final Exam Advice

Law school exams are upon us yet again, and no one currently in law school is really a newbie anymore. Even the 1Ls are battle-scarred veterans. But some basic advice bears repeating, since sometimes the biggest mistakes are the easiest ones to avoid. So for what it's worth, here are my tips for surviving and even possibly thriving this exam season.

First, think about what your professor wants. In each class you are taking the professor as well as an exam. Does your professor play hide the ball or not? Give hopelessly long fact patterns? Find this out if you haven't already done so. Take some practice exams if the professor has any on file. Attend any review session the professor might offer. Ask questions about your professor's approach to exams.

Second, get plenty of sleep the night before the exam. I didn't always do this, and I could tell a difference in my exam performance. If you haven't mastered the material by the night before the exam, you aren't going to. So get some rest and at least be mentally sharp for the exam.

Third, carefully read the questions. Make sure you identify the issues presented by (or imbedded in) the question. Sort the relevant facts from the irrelevant ones.

Fourth, outline your answer. Take the time to do this. Invariably students do not follow this advice, since outlining reduces the time they have to write their answers. But outlining makes you think about the entire question and how to answer it. You'll be less likely to miss issues, and more likely to organize your answer well--both of which mean a higher score.

Fifth, cite to relevant sources of law on the exam--cases, statutes, regulations, doctrines. You may have the general concepts down, but if you can cite to the relevant cases or statutes, that shows me both that you were paying attention and that you have the gist of how to take law from a particular source and apply it to a new fact pattern. Which is largely what law school exams (and the practice of law) are about.

Sixth, in citing to relevant sources of law, paraphrase. Don't rewrite enormously long quotes on the exam. Use of key legal terminology and a brief paraphrase of a rule or principle will serve just as well, and in fact is better. I personally do not care if you can accurately produce a key paragraph from Judge Learned Hand's opinion in such-and-such a case. I do care whether you understand the principles involved. Use of key terms and a paraphrased summary actually demonstrates your level of understanding better than a long quote.

Seventh, in answering the question, be a lawyer, not a politician. A lawyer asked a question by a client should do her best to answer it. In contrast, all too often a politican asked a question during a debate gives the answer to the question he wishes had been asked. That gets you zero points on a law school exam.

Eighth, when the exam is over, walk away! Don't dwell on what you think you missed. Unless you have a time machine, you cannot do anything about it. Law school exams are complex, and you almost never get to identify or address everything on them. An "A" grade on my exams is often about a 70% score--which means 30% of the points were left on the table. So let it go.

And whatever you do, DO NOT call your professor to discuss how you think you screwed up on the exam. Not only is that enormously unprofessional, the fact is that we grade exams anonymously. Telling me how you answered a question undermines that system, and does far more to harm you than help you.

You might agree or disagree with some of my advice--but if you are in my classes, you'll do far better by heeding these suggestions. So good luck.

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Some of my previous posts regarding how to take law school exams can be linked to here (How Law Professors Write Exams), here (How to Improve Your Law School Exam Grades), and here (More About Law School Grades).

More Professors Ban Laptops in Law Classes

Here's something controversial (at least for law students). Some Penn State law school professors have banned laptops in their classrooms, claiming that students are too distracted as they surf the web, and in some cases, play poker during class. What do you think?

Myself, I found my laptop a very useful tool during law school, as I detested taking notes by hand. However, I also found it very distracting and rude when classmates would be surfing The Gap and SI.com or, worst of all, playing solitaire incessently.

Laptops are supposed to be a resource to help you in class, not a mode of distraction. If you are finding class so boring, go home, read your textbook. You'll get a lot more out of it.