Hurricane Katrina Symposium

Students at many law schools around the country have made it through week one of law school and are staring week two in the face. That's a subject rich for blog posts, but today I want to exercise a point of personal privilege and talk about another topic.

Specifically, I encourage you to check out an excellent symposium being held by Mississippi College School of Law on Tuesday, August 29, 2006, concerning the legal impact of Hurricane Katrina. The program for this law review symposium can be linked to here. Please check it out, since the symposium features an excellent line-up of speakers. This one-day event includes panels on federalism and disaster response; insurance law; and property law/land use.

Lawyers and interested scholars in the vicinity of Jackson, Mississippi should strongly consider attending the symposium, both because it has a superb line-up of national-caliber lawyers and scholars and because 6 hours of CLE credit are available. Why not fill your CLE hours by attending a program of great social and legal relevance? People not in the Jackson vicinity can check this blog again in a few days for news on how the symposium went, as well as visit the Mississippi College School of Law's main website.

In addition, you can find some stunning images of Hurricane Katrina's aftermath on one of my previous posts on this blog. Those pictures were taken five months after the storm--but I was on the Gulf coast just last month, and while progress is being made, much of it still looks like a war zone.

Articling: Watching your Classmates Succeed

I didn't really think about it much during law school, but now that it is here, I really enjoy watching my friends and classmates going through their bar call ceremonies and becoming members of the Law Society. I haven't been able to attend all of the ceremonies, but I have been able to see photos and have heard the stories. Thinking back to their scared faces in those first year classes, and thinking of all of the panic going on in the law library, I wonder if I looked equally scared and panicked. All of my friends, save one or two, have succeeded in obtaining articles, completing their articles and bar exam/CPLED requirements, and getting offers from their firms. That's pretty good, I think. Way to go guys and gals!

The bar call ceremony is different everywhere. In Calgary and Edmonton, for example, you often do the ceremony en masse with a bunch of other new lawyers. In smaller centres, you usually go alone, or with one other person. That was the case for me. I went with another fellow who had been a solicitor in the U.K. for 11 years.

Our judge, a member of the Court of Queens Bench, met with us before hand, interviewed us, shared some good inside jokes and shared a bit of sage advice. The ceremony itself was really nice. Although it had its formal moments, it was also filled with joviality, and even laughter. It was really great to have friends and family in attendance. I have some classmates who had family come from pretty far away. For many parents, it is a very proud moment.

You will have to wear robes to your bar call ceremony in most jurisdictions. Some jurisdictions (such as Saskatchewan, I believe), you just go down somewhere and sign the Law Society register. There is no real ceremony. If you do end up having to wear robes, be prepared to pay between $900 and $1000. Some firms will cover this cost. You may want to negotiate this with your firm when you negotiate your articling contract. I didn't realize they would be so much money, and it hurt my bank account at a time when I was hoping to start getting ahead on student loans.

There are a bunch of administrative hoops that you will need to go through before you get called to the bar. In Alberta, the rule is that you cannot be called to the bar until 30 days have passed beyond the end of your articles. That is also something that nobody told me about before beginning my article, or during my article. What a rip off! Another month at articling salary sucks. I was able to push my call date up one week, but apparently that is as far as it can be pushed. So, be prepared for this little technicality. You will also have to fill out a bunch of paperwork, which will include your principal. Get this done before the end of your articles, so that you can submit it the day after your articles are complete and shorten any possible delays.

Be sure to read through the archives of this blog. There are many entries about law school, articling, the LSAT, and more. Shoot me any questions you might have, and be sure to check out my book whether you are just thinking about law school, are about to write the LSAT, are applying for law school, in law school already, or about to apply for articles.

More (and Still More) Advice for New Law Students

Professor Paul Caron at the University of Cincinnati College of Law, who runs the excellent blog TaxProf Blog, has provided an admirable compendium of online advice for newbie law students. I am proud to say that one of this blog's entries is on the list. Check out his list of very useful links here.

And for those of you who may have missed some of my recent posts with advice for incoming law students, here are the links: two entries about how to brief a case (here and here); podcast advice for new law students from CALI's Pre-Law Blog (here); and advice regarding law school orientation, including what not to do, based on my own painful experience (here).

Good luck to all incoming students as they transition from the real world into the rarified atmosphere of law school! It's a transformational experience--one that shaped me enormously and that I have never regretted, despite all the hard work and stress of it all.

More Thoughts on How to Brief a Case

Yesterday I posted advice on how to brief a case (here). I've thought about the subject some more, and I think I need to emphasize the importance of not only briefing the case--understanding what happened and why--but also critiquing the case. As I said in my last post, what do you think of the court's decision? Was it right? Wrong? Partly both? And why?

I am not suggesting that you try to read your professor's mind. Nor am I suggesting you have to get your analysis of the case right. There will be many, many times in law school when you go to class thinking you understand the material, and leave class confused. That is not just a mean trick we play on unsuspecting students; rather, it is part of the educational process. Cases need to be unpacked and dissected, and this process often uncovers things you might not have expected or seen when you prepared your casebrief.

But you should go through the critiquing process anyway, since you are being trained in critical thinking. Sometimes you will hit the nail on the head, too--and that is a great feeling. And on a more practical note, doing so gives you something to say if your professor asks you, "So, what did you think of the decision?" Saying something that clearly shows you have prepared is a lot less embarrassing than saying, "Uh, I don't know" or something equally insightful. Plus, if your professor takes class participation into consideration when handing out final grades--as I do--you are possibly helping your grade (or at least avoiding doing damage to it).

How to Brief a Case

Right now, thousands of incoming law students across the nation are probably not sitting at home preparing for their very first classes of law school. But they should be. And if you are one of these students, when you do crack the books one of the most important things to do is learn how to brief the cases--that is, prepare written summaries of them in advance of class, so that you are familiar with each case, the issues it presents, the proposition of law it stands for, and so on.

Let me repeat that: as a new law student, you need to brief the cases. Not rely on a casebrief from a friend, or an outline from last year's class, or a commercial outline, or (heaven forbid) some casebrief you download from the web for free. (In my experience, you get what you pay for in the latter case.) You can experiment with different, and possibly faster, approaches later in law school and decide what works best for you. But right now, at the beginning of your law school career, you really, really need to learn how to brief a case.

This is because briefing a case is a good exercise for learning to differentiate among the different parts of a judicial opinion. Perhaps shockingly (or perhaps not so shockingly), judicial opinions are not always well written--including those by our esteemed Supreme Court Justices. Working to identify the specific legal issue in question, the relevant facts, the analysis and reasoning of the case, and the legal holding of a case--and writing it all out in a concise and standard format--is a good habit to get into as a new law student.

So, how do you brief a case? One method I commonly hear recommended is that students should follow the "IRAC" method, which as I understand it stands for "Issue, Rule, Analysis, Conclusion" (with the conclusion being the holding). I suppose that's fine as far as it goes, but it seems incomplete to me. What about the facts--aren't they important? Who are the parties? What is the procedural history of the case? These things make a difference. So the IRAC approach falls somewhat short, in my opinion.

Yet on the other hand, you are trying to distill the case down to its essence, and too much information can cloud the picture. What is a first-year law student to do? I suggest a compromise. It's basically the IRAC approach, but topped-and-tailed with additional information. Here is what I think you should include in a typical casebrief:

• Parties
• Relevant facts
• The legal issue(s) raised
• Summary of the relevant law
• Analysis: the application of the law to the issue(s) and facts at hand--that is, the court's reasoning
• Holding (and disposition)
• Your thoughts: was the case properly decided? What did the court get right or wrong? What do you think the implications of the case are?

Is there an acronym for this? PFILAHT? PRILAHY? I've seen worse, I suppose. Any suggestions for a good acronym would be much appreciated. "IRAC" is a great acronym--just an under-inclusive approach, in my view.

Thanks to Professor Randy Barnett of Georgetown University Law Center for sparking some of my thoughts on this issue. His Contracts casebook (3d edition), which I use in my first-year Contracts class, contains very helpful suggestions on briefing cases. My "PFILAHT" (ugh) approach is streamlined and altered from his approach--but I suppose that proves my point about ultimately using whatever method is best for you. Whatever approach you take, though, I hope you come up with a better acronym than me.

CALI Podcast Advice for New Law Students

Continuing with my thread of looking to others for pre-law advice, please check out a podcast by Hamline Professor Douglas McFarland on CALI's Pre-Law Blog, which contains about 15 minutes of advice for newbie law students. His thoughts on study aids (don't over-do it and spend too much) and taking final exams (law school exams are like junior high algebra tests--you are being tested on your method and skills, not just your answers) are good pointers for any new law student. His reflections on the Socratic method and notetaking in class are helpful too. (His tip: listen not just to what the professor says, but also to what your fellow students say when called on. It's a dialogue, after all.)

With respect to that last excellent point, I'd add that you always should be trying to answer the professor's questions in your head, as if you had been called on--realizing, of course, that this is like watching Jeopardy! at home: you always do better when you are not the contestant. You'll realize how true this is the first time you get called on in class.

Yet More Pre-Law Advice (and this time not from me)

The National Jurist publishes a magazine called preLaw which, true to its name, is all about stuff for incoming law students. The latest issue can be found here. I'd mention that my law school is featured in the article on guaranteed (frozen) tuition rates, which do not increase while a student is in law school--but that would be blatant hucksterism, so I won't.

In addition, the preLaw website has other information that newbie law students might find helpful. I'm not endorsing it, but it is there. The site has a podcast feature that is on my to-do list to check out.

Some Advice for Incoming Law Students

The first year of law school can be an incredibly stressful time for new law students. What kind of advice might I give to someone starting law school? After all, I myself was in law school in the early 1990s, and in many ways I am still getting over the experience of being a first-year law student (or "1L").

I could give a lot of advice from my own personal experience, such as "Don't eat a big piece of chocolate cake at bedtime every night and expect to stay thin," or "Yes, there really is a judge named Learned Hand" (what a great name). But a lot of what I might say has already been stated quite eloquently by Professor Barbara Glesner Fines of the University of Missouri - Kansas City School of Law. Several years ago she posted online a speech she gives in class about law school and stress, and it remains as relevant as ever today. You can link to her advice here. I highly recommend you read it.

I also have one other piece of advice: if you haven't read Scott Turow's law school memoir One L yet--DON'T. Wait until after you have finished your first year of law school, and then read it. I read it in the summer after my 1L year, and I am fully convinced that if I had read it before law school, I might well have never gone. For those of you who already have read it, well, too bad for you, I guess. Hang in there.

Law School Orientation Advice

My last two posts (here and here) discussed the impact of Baumol's cost disease (aka the Baumol effect) on the practice of law. There's more to say on that subject--especially with respect to how law schools are (and are not) run--but the subject of this post is law school orientation do's and don't's for new 1L students.

But first, two caveats: (1) my comments are based on my own non-scientific observations, and (2) all law school orientations are not created equal. Some are very good, and some are subpar. So with the disclaimers out of the way, here are my thoughts.

Tip #1: Don’t skip orientation.

Most new law students do attend orientation, but invariably some do not. Don’t skip it. It may not help you, but it really cannot hurt you.

Tip #2: Meet as many new students, faculty and law school staff members as possible.

This should seem obvious, but I am always surprised and somewhat disappointed when I attend orientation events and see new students just standing around. I do not mean to sound harsh--the natural tendency when you do not know anyone is to hang back. But remember that many of your new peers are interesting and dynamic people, and some will become your close friends. Your new professors can be interesting too, of course--and since they can help you enormously with career advice and job recommendations, you should talk with them. As for law school staff, they can make or break your law school experience. They often wield enormous power within the law school, so be nice to them.

Tip #3: Play well with others.

This too should be obvious. However, you will be in a room with scores of other driven, ambitious people, and your inclination may be to have your guard up and try to impress people. Just remember that orientation has no effect on your grades or class rank, but it has everything to do with first impressions. When you are running for student office or trying to find study mates, it helps to have made a good first impression, instead of trying too hard to impress people with how smart and accomplished you are.

Tip #4: Ask 2L and 3L students at orientation for advice on anything and everything related to law school.

Often there are second- and third-year law students at orientation as student mentors. Pick their brains. That’s what they are there for. You may learn nothing useful, but again, it cannot hurt you to try.

Tip #5: Listen to what law school professors, staff and students say (and do not say) during orientation to get a sense of your law school’s culture.

I can’t be too specific on this one, because the nature of law school orientations can vary widely. But hopefully you can get a sense of the internal culture of your law school during orientation.

Law schools are like law firms, in that they all try to say the same lofty and positive things. “We promote diversity.” “Our professors welcome interaction with students outside class.” “We value a well-rounded education.” “We pride ourselves on the excellence of our teaching.” Etc. etc. etc.

Now, I am not saying that these statements are false per se. In fact, I suspect they are usually true. The question, though, is to what degree they are true. All law schools are not equal, and all law school cultures are not identical. Some schools really do thrive on student-professor interaction, and some do value teaching more than others. Some schools have a vibe, because the school is on the move and doing a lot of exciting things. And some probably do not.

So here’s my point: people have a hard time faking joy or exuberance. Use that to filter what you are told (and not told) in orientation. Also, how do faculty members, staff and students interact with one another? Do faculty members approach you during orientation and talk with you? Or is there a sense of separate cliques? I’m not saying you should reach any firm conclusions based on any such intuition, but this is a useful approach for getting an initial sense of your school.

Tip #6: Don't hold a plate of food and shake someone's hand at the same time.

I did this at my 1L orientation, with disastrous results. Not only did I spill food on someone else, but it was my law school's dean.

No joke. I dropped an entire plate of food on Northwestern’s Dean Bob Bennett. Got potato salad all over his very nice loafers. He may have forgotten the incident, but I never will. I wanted to withdraw from law school on the spot and crawl under a rock, in that order.

So take it from me: if you are holding a plate of food and someone introduces themselves to you, DO NOT TRY TO SHAKE THEIR HAND. Just smile, nod, and hold your plate in a two-handed death grip.

Law School - Get a Real Mentor

Some schools offer formal mentorship programs for first year law students. This may link up professors and law students, practitioners and law students, or even lower-year and upper-year law students. My experience with this was abysmal. It may have been fantastic for other classmates or colleagues at other law schools, but for me it was useless. The practitioner that I was assigned to was extremely overworked, overstressed and overcome with emotion about his own career. He signed up for the mentorship program with very good intentions, I am sure, but bit off much more than he could chew. As a result, the time that I was able to squeeze out of him was comparatively futile for both of us. Scheduled appointments were postponed, invitations to attend court cancelled, and the relationship quickly deteriorated and eventually disappeared by my second semester of law school. I have heard similar stories from classmates.

I would highly suggest seeking out a formal mentor of your own choice and finding. A practitioner is great, if you can find one. A family friend or colleague of someone that you know is ideal, as they will feel more inclined to make good on their commitment that they make to you, and may feel more accountable for the relationship. Seek out someone who you perceive to handle stress well, to be on top of their game, and most importantly, who shares some of your interests, both in and out of law school. Try to strike up a professional relationship, but do not be afraid to be friendly.

In my experience, a golf game or coffee with a chosen mentor is worth more than almost anything in law school. A small word of advice from a veteran of the law school and practical legal worlds can save you tons of time and stress, and can really help you in your goals to succeed. A good mentor can also be invaluable when it comes time to apply for a summer job or an article. A practitioner can be an excellent ‘in’ at the law firm that they work for, but also at other firms. Remember, they were once law students, and likely have maintained friendships with their past classmates or co-workers. The legal community is relatively small, and having an ally, or more than one ally, can be like gold when it comes to obtaining employment in your field of choice.

Baumol's Cost Disease and Lawyers, Part 2

In my last post I discussed Baumol's cost disease and stated that it is having an enormous impact on the practice of law. In this post I want to discuss this impact in greater detail.


Recap

By way of review, a basic observation of Baumol's cost disease is that the cost of some commercial services will rise faster than the rate of inflation. Stated differently, while some types of services may enjoy productivity gains, others will not--either because they cannot or because as a matter of policy we do not want them to. Over time, those services that do not experience productivity gains will grow relatively more expensive vis a vis other services and the average rate of inflation. Again, there is more discussion of this in my earlier post.

Think of all services, then, as being located along a spectrum: at one end are services that can benefit from improvements in productivity (such as assembly line work), and at the other end are those that cannot (or as a matter of social policy should not) see such productivity increases. And in the middle there is a big gray area in which the boundary between the two types is not so clear.

Effect of Baumol's Cost Disease on the Practice of Law

Now here's the key point I want to make: due to the rising cost of services that have not benefitted from productivity increases, there is pressure to figure out how to change the nature of these services so that they shift from one side of the spectrum to the other. Sometimes this is not possible, but sometimes it is. Moreover, such shifts make things extremely interesting in a highly lucrative service industry like the practice of law.

Think of it this way: some things lawyers do are resistant to productivity improvements, while others are not. For example, lawyers still need to go to court, just like they have for decades. You cannot send a "virtual attorney." Lawyers still take depositions. Lawyers still need to review documents and records pertaining to a transaction or a case. Computing advances may make it easier to transport or print such materials, but the materials still have to be reviewed and read by real people. So gains in productivity related to these activities are often limited to the development of expertise by the lawyers involved. Let's call these productivity-resistant services.

Other legal tasks are not productivity-resistant. Do you see the same type of cases over and over again? If you do, then you typically prepare standard-form contracts or pleadings. One might call these types of services productivity-receptive.

Productivity-resistant and productivity-receptive services thus share a common feature: productivity gains can be achieved through the application of expertise. The difference between the two, however, is in the fungibility of this expertise. Can the expertise be distilled down into written form--such as a standard-form contract or pleading, or into a software program--that can be applied to another, similar case or project? Can the steps needed to file a case or manage a corporate transaction be reduced to a "how-to" list that someone with less expertise (like a junior associate) can follow?

Stated differently, can the legal task in question be turned into something that we might consider a separate-standing article of commerce? Or is the task in question something more intangible or non-standard, and thus less fungible?

The difference is enormously important. Baumol's cost disease tells us that productivity-resistant legal services will become increasingly more expensive over time, as compared to productivity-receptive services. This means that as a general matter, there often will be pressure to reduce the cost of the former services by whatever means necessary.

Which gets us back to the gray area of our spectrum. The enterprising and entrepreneurial lawyer will figure out a way to reduce costs by making her services more productivity-receptive. Standard-form contracts, checklists for more junior people to follow in performing complex tasks like audits or due diligence, software programs--these are all ways to reduce costs. Some providers even sell their fungible products as stand-alone articles of commerce, as any trip to Books-A-Million or Barnes & Noble illustrates.

Lessons for Lawyers

So what lessons can practicing lawyers take away from this? There are many--but here are five that come to mind.

1. Do not stand still or be complacent. The lawyer who rests on his laurels will see his profit margins and stable of clients shrink. The dividing line between productivity-resistant services and productivity-receptive services is constantly shifting toward the productivity-receptive end of the spectrum.

2. Think of ways to make your legal services more productivity-receptive. If you are the first in your area (geographically or practice-wise) to do so successfully, you will have a leg up on the competition. It is no accident, for example, that fixed fees and other alternative billing arrangements are becoming ever more popular, since they are efforts to control rising legal fees. If you figure out a way to profitably provide legal services at these prices and your competitors cannot, you will be in an enviable position.

3. Embrace specialization as a way to lower your costs and improve productivity. Baumol's cost disease helps explain why the practice of law has become increasingly hyper-specialized. I personally have mixed feelings about hyper-specialization--I believe well-roundedness is a virtue in a lawyer--but it is an inescapable fact that one way you can improve productivity for productivity-resistant services is to become an expert in that field, since then you will need less start-up time on each project.

4. Understand that your competitors are not all lawyers. There is a good deal of debate about the merits of law practice being a monopoly, and in fact some of my previous posts relate to this subject (see here, here, and here) . But as formerly productivity-resistant services become productivity-receptive, and thus move toward fungibility, you will have competition not only from lawyers, but also from non-lawyers. Tax lawyers face competition from H&R Block and other non-legal providers. Corporate attorneys face competition from books and online publications containing standard-form contracts. And in some areas of administrative law practice (including my area of specialty, international trade law), you do not have to be a lawyer to represent companies or persons before governmental agencies. Your non-legal competitors may be serving the lower end of the client base and leaving the tougher, more challenging (and more profitable) matters for lawyers to handle, but that only proves my point even further.

5. Lawyers need to lower their costs in ways other than reducing the direct cost of their legal services. You have to pay the attorneys in your firm market-rate salaries, and your legal fees generally have to be within market parameters, but what about your building lease? Your retirement packages? The size of your staff? The billable hour requirements for your firm's lawyers--should they be increased? Decisions like these are often difficult to make, and I am not advocating a slash-and-burn or dictatorial approach to managing costs. I am, however, restating the obvious in a different way: profit = revenue minus costs. All other things being equal, the lower your costs, the larger your profit, and this becomes ever more important as the cost of providing legal services goes up.

*****

This is a subject that fascinates me. Baumol's cost disease offers a useful framework for thinking about recent and looming changes in the practice of law. And, for that matter, I think of it every time I unsuccessfully try to get service assistance at Home Depot or Walmart. While I usually cannot get someone who can help me with my questions, I can console myself with the fact that the absence of helpful personnel helps lower the cost of the goods I am trying to buy.

Still Birthing the law firm

I apologize for not posting regularly as of late. I have been up to my neck in setting up our new law offices. It's been two months of exhileration and fun. Business is going good, and our offices are 95% complete. I promise to post more during August, so stay tuned.

In the meantime, check out this cool story about a former lawyer from Quebec gone music industry. As I keep saying, a law degree can lead to so many possibilities.