Category: News Feeds

What’s it take to be a good lawyer? Ask 10 lawyers and you’d receive 10 different answers. Or would you?

Several years ago, researchers set out to answer this question. With 24,000+ responses, clear patterns emerged about the foundation a law school graduate needs to be a good entry-level lawyer. Legal knowledge matters, of course, according to the landmark study Foundations for Practice from the Institute for the Advancement of the American Legal System (IAALS). But even more prominent were skills like risk assessment, communication, and advocacy, as well as characteristics like integrity, work ethic, and resilience.

[S]uccessful entry-level lawyers are not merely legal technicians, nor merely cognitive powerhouses. Any debate that places “law school as trade school” up against “law school as an intellectual endeavor” misses the sweet spot of what legal education could be and what type of lawyers it should produce. New lawyers require cognitive ability and legal skills, but are most successful when they come to the job with the 76 foundations that make up what we have termed the “Whole Lawyer” — a much broader blend of legal skills, professional competencies, and characteristics. [project summary]

Law schools don’t teach or assess many of the foundations IAALS identified as necessary for new lawyers. While great strides have been made in the past 10-15 years, “the focus is on teaching rather than learning,” according to IAALS. Likewise, legal employers pay minimal attention to these foundations in hiring — despite insisting that they matter a great deal. Instead employers focus on traditional indicators like law school GPA (which reflects only some foundational knowledge, skills, and abilities) and law school attended.

These shortcomings of legal education and legal hiring also reflect decades of entrenchment, although the message here from IAALS is not “you’re wrong” but “we can help you do better.” Faculty sometimes fear concepts like learning outcomes or new/different types of assessment. Law schools are not rewarded by U.S. News for curricular innovation or educational quality; instead the rankings stifle creative spirit. On the employer side, hiring committees frequently make decisions using tradition and familiarity, which reinforces existing hierarchies and breeds bias. While law schools should focus on student learning regardless of the hiring criteria employers use, the fact that so many employers don’t look past the surface provides yet another hurdle to higher-quality legal education. Keeping with tradition also leads to costly retention challenges — something all organizational stakeholders, including clients, pay for.

This brings us to the announcement this week from IAALS. Under the leadership of Zack DeMeola and Logan Cornett, building on their work with the late Alli Gerkman, the IAALS team has put their empirical research to use in practical how-to guides for legal educators and legal employers.

Foundations for Hiring: How to Hire New Lawyers

The IAALS hiring guide and toolkit aim to provide a transparent, objective means for assessing new hires using the foundations research. Now, you can’t just use the IAALS process without much thought.

As IAALS puts it:

It is not intended as a list of boilerplate criteria that can be draped over an existing hiring process. Instead, it is a set of principles and recommendations geared toward hiring candidates best suited for excelling at an organization — based on that organization’s practice, vision, and goals — and increased diversity among hires that can be adapted to the specific objectives and goals of different employers.

The key is that organizations must reflect on what genuinely matters, develop data-driven and transparent hiring criteria, establish means of reaching and assessing candidates, and follow through — especially when it contradicts traditional practices. The IAALS guide and toolkit help establish the common vocabulary necessary to do this well. Wheeler Trigg O’Donnell already found that the IAALS data and process help expand the pool of applicants, find new hires who meet their needs, and retain these hires with greater success. A clear vision from firm leadership, collaboration among internal stakeholders, and key allies at IAALS led to meaningful change.

Foundations for Teaching: How to Educate Future Lawyers

The IAALS instructional design guide helps law schools develop learning outcomes and assessments consistent with their mission, values, and place in the job market. Learning outcomes are the promises law schools make to students, employers, and the public about the knowledge, skills, or abilities its graduates will possess.

As part of this release, IAALS developed model learning outcomes that demonstrate how a law school can use the 76 foundations to design a modular curriculum that will meet the needs of a rapidly-shifting legal market. Such a data-driven approach might provide graduates an advantage in getting their first job, but it will certainly advantage those graduates as they establish their careers.

IAALS is careful to point out that law schools will not need to completely overhaul their curriculums. Instead, the IAALS process is collaborative and will help schools to comprehensively define the many parts of their unique legal education experience. From this process, schools can map their curriculums and identify gaps in learning and assessment. When done in concert with employers, schools can know that their students are getting a head start in practice.

An Uphill Battle

While there is an ally on every law school faculty, the question is how to take more intentional teaching from the course level, on a course here and there, to the curricular level. There remain many opportunities in legal education to apply empirical data to improve what faculty already do and to connect coursework to the school’s overall program and mission. Doing so will provide more assurance to employers, clients, and the public more broadly that a JD reflects the promises schools make.

Schools, employers, and clients share responsibility here, but the benefits cannot be clearer. Following the processes outlined by IAALS will help employers to hire lawyers who genuinely meet their needs and schools to educate students effectively and efficiently.

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Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. You can follow him on Twitter @kpmcentee and @LSTupdates.

The courts and the legislatures are supposed to function as checks on each other. That function falls apart when both bodies engage in a war on transgender people, and especially trans youth.

Legislation targeting transgender people – particularly trans youth – has rightfully been the subject of widespread attention. Arkansas, Mississippi, and Tennessee recently passed laws banning trans youth from participating in school sports, and South Dakota Governor Kristi Noem issued two executive orders implementing a similar ban. Arkansas has banned trans youth from accessing gender-affirming care. North Carolina, South Carolina, and Alabama have similar bills in the works. Proposed bills in Texas and Montana would make it more difficult to alter the sex designation on birth certificates. A proposed bill in Alabama would require schools to disclose young people’s gender identity to their parents or guardians.

These laws are rooted in a long history of policing Black and LGBTQ+ bodies and recycle the same strategies used to fight school integration. For example, it was common practice for decades for police to raid gay bars and arrest people for violating the so-called “three articles” rule prohibiting the wearing of clothes that don’t conform to one’s assigned gender. The 1969 Stonewall riot was a response to one such police raid.

Unfortunately, recent rulings reflect a court system increasingly complicit in this process. Anti-trans case law and legislation share a common thread: by treating the very reality and existence of transgender and nonbinary people as a matter of debate rather than a matter of fact, judges and legislators rationalize discrimination against trans youth and adults. This is compounded for BIPOC and low-income litigants, who often face obstacles to true due process and access to justice, frequently abandon civil claims, accept criminal pleas, and decline to pursue appeals due to their unfortunately accurate perception that they will face veiled hostility and bias. Faced with the prospect of open hostility and bias, trans and nonbinary litigants are unlikely to view the courts as a bastion of “equal justice for all.”

Kathrine Nicole Jett is a transgender woman who had a simple request: that the Fifth Circuit refer to her by her chosen name and pronouns (she/her). In a January 2020 decision authored by 2018 appointee Judge Stuart Kyle Duncan, the Fifth Circuit ruled that granting this application was entirely at their discretion and denied Ms. Jett’s request. The court did so even though she still had a criminal appeal pending, meaning that precisely when she most needed to focus on her court proceedings, she was instead forced to cope with the significant psychological and emotional distress that can arise from being misgendered and called by one’s birth name (“deadnamed”).

The ruling in Ms. Jett’s case resulted in the further indignity of it continuing to be captioned as United States v. Varner, guaranteeing that Ms. Jett will be deadnamed-by-citation in perpetuity. This decision sent a clear and chilling message to transgender and nonbinary litigants that they cannot expect to be treated with dignity, humanity, and respect in the Fifth Circuit.

Among those already citing Ms. Jett’s case is the recently decided Meriwether v. Hartop et al. A professor was disciplined by a state university for refusing to refer to a student who was a transgender woman using she/her pronouns and associated honorifics in class, in part because of his religious beliefs. In a decision authored by 2017 appointee Judge Amul Thapar, the Sixth Circuit determined that the professor had a viable Free Speech claim, among others.

Speech made by a government employee – as this professor still is – has different free-speech limitations than speech made in other contexts. The Supreme Court laid this out in Garcetti v. Ceballos: “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Sixth Circuit contorted itself into finding that how one refers to a student in class is a matter of academic freedom that supercedes the limitations of Garcetti. In so doing, the court departed significantly from case law. The court cast this as a studious aversion to academic censorship, but not everything that happens in a classroom is inherently academic. Taking roll, for example, is an administrative task that has no free-speech protections. Referring to a student is, likewise, effectively an administrative task – a means to the end of actually teaching that student the material at hand.

Having nonetheless disposed of Garcetti as an obstacle, the court applied the Pickering-Connick test to determine whether the professor’s refusal amounted to in-class speech protected by the First Amendment. This test asks 1) whether the subject being spoken of is “a matter of public concern,” and 2) whether the professor’s interest in misgendering the student is greater than the university’s interest in “promoting the efficiency of the public services it performs through” him. This enabled the court to rule that pronoun usage is controversial and therefore the professor was indeed speaking on “a matter of public concern” by misgendering a specific student. This test also gave the court the opportunity to rule that, assuming the professor’s factual allegations are true, the university’s interest in ensuring that its students are treated equally is weak compared to the professor’s free speech rights – “especially strong” here because they are rooted in “his core religious and philosophical beliefs.”

In its application of the Pickering-Connick test, the Sixth Circuit entirely failed to acknowledge the fundamental harm done to a student by being singled out in class for who they are, let alone the harm done to a transgender student when their identity is routinely publicly denied by an authority figure. The court also improperly failed to apply Bostock’s reasoning to Title IX. While the decision should be read for the limited value it holds – that a viable claim exists and therefore the case should proceed, not that the claim is true – it is a troubling reflection of the failure of our judiciary to view discrimination against transgender people as sex discrimination even post-Bostock.

These developments are actively harmful. The American Psychiatric Association has found that “discrimination and lack of equal civil rights is damaging to the mental health of transgender and gender diverse individuals.” The impact on trans youth is particularly profound, but not inevitable. The Trevor Project has found that 21% of transgender and nonbinary youth have attempted suicide, and 52% have seriously considered it. However, studies also show that suicidal ideation and behavior among trans youth decrease when the people in their lives consistently use their chosen names and when young people have access to gender-affirming hormone therapy (GAHT).

Meanwhile, evidence suggests that inclusion of transgender athletes has not had any impact limiting sports participation by cisgender athletes or cisgender women’s athletic achievements. Indeed, the data from states that already have transgender-inclusive policies suggests that girls’ sports participation may even increase in correlation with inclusive policies. When asked, only a handful of lawmakers sponsoring anti-trans sports bills said that they actually knew of any transgender athletes competing in their states.

Laws claiming to protect our young people actually endanger trans youth by unjustifiably denying them access to vital health care and undermining their civil rights. At the same time, they impose intrusive gender policing on all young people and deputize the adults in their lives into enforcing it.

The legal profession can and must mobilize in opposition to these efforts. As prominent activists Chase Strangio and Raquel Willis recently called for, staying educated about proposed legislation and educating others is vital. Contacting lawmakers to oppose these harmful laws are essential actions that we all can take, and should encourage others to take. Additionally, call or write your Senators to encourage them to support the Equality Act, which will add “sexual orientation and gender identity” to anti-discrimination laws – many of which do not currently include these protections. This law would protect transgender and nonbinary people from discrimination in employment, housing, credit, education, public accommodation, federally funded programs, and federal jury service. The fight for trans rights won’t be easy – but it is winnable if we rally together.

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Karen Levit is the National Civil Rights Counsel at the Anti-Defamation League. She previously represented young people in Family Court as a trial attorney for the Legal Aid Society of New York. All views her own.

Two things of interest to the cryptocurrent community happened yesterday. First, crypto exchange/masturbatory trading platform/customer service specialist Coinbase finally went public and was briefly worth as much as Goldman Sachs.

* Dr. Dre’s lawyer has been disqualified from representing him in his divorce. Too bad Dr. Dre went to medical school instead of law school… [Page Six]

* A Florida man, who was found guilty of impersonating a lawyer, has been sentenced to 20 years in prison. [New York Times]

* A new lawsuit alleges that the tipping policy of Olive Garden’s parent company has a discriminatory impact on workers. If true, maybe “when you’re here, your family” should apply to employees too. [Today]

* Veritas founder James O’Keefe is threatening litigation after being banned from Twitter. [Forbes]

* Fyre Festival has settled claims with 277 ticket-holders over the ill-fated 2017 music event. Hope they make a documentary about this part of the Fyre Festival saga… [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to NALP’s 2021 Associate Salary Survey, the median base salary for first-year associates is up how much over 2019 (the last time this survey was released)?

Hint: During this time frame, the greatest salary growth was seen at mid-sized firms of 101-250 lawyers.

See the answer on the next page.

LinkSquares, a contract lifecycle management and analysis company, is unveiling several new features today, including Strategic Values, which are sets of expert-selected terms to help its AI-powered Linksquares Analyze product uncover and extract topics in contracts related to key issues such as GDPR, HIPAA, mergers and acquisitions, and more.

The company also announced DocuSign integration for customers of its Finalize contract drafting and review product and a native application for Salesforce that is designed to simplify creation and approval of sales contracts between Salesforce and Finalize.

I was given a briefing on the announcements yesterday by Tim Parilla, who last month joined LinkSquares as chief legal officer after seven years as general counsel for DraftKings, where he had been the company’s first in-house lawyer and was a customer of LinkSquares and a member of its advisory board.

Linksquare’s new Strategic Values are dedicated lists of values for LinkSquares customers to use to quickly track and uncover insights, respond to business needs or create custom reports or dashboards.

They are based on LinkSquares more than 50 Smart Values, which are key pieces of data that LinkSquares’ AI extracts from every contract, but they incorporate 73 new Strategic Values tailored to specific business issues.

The Strategic Values are designed to help companies quickly extract key pieces of data to ensure compliance, evaluate risk exposure, protect important assets and intellectual property, understand key obligations, renewals, and terms and conditions.

LinkSquares’ core technology is designed to use AI to pull specific relevant information out of contracts and associate it with particular terms or issues, such as whether a party may assign an agreement without consent of the other.

These new Strategic Values, Parilla said, are custom sets of values designed to address specific issues, enabling an organization to go through a set of documents and find the provisions it would need to know for an M&A, for example.

One advantage to a company in using these Strategic Values is that it eliminates the time that would be needed to develop and train a custom set of values, Parilla said, which can sometimes take several weeks.

While LinkSquares plans to add more Strategic Values over time, as of today they target nine use cases:

• GDPR compliance.
• HIPAA compliance.
• CCPA/CCPR compliance.
• Mergers and acquisitions.
• Procurement.
• Non-disclosure agreements.
• Leasing.
• Gramm–Leach–Bliley Act.
• LGPD (Brazil’s general data protection law).

DocuSign and Salesforce

With regard to LinkSquares’ new DocuSign integration, Parilla described it as “pretty slick.” It allows someone working on a contract within Finalize to send the document out for all required signatures with essentially one click, and then automatically track the status of signatures and repopulate signed documents back into Finalize.

“From the very first draft of the contract to the signed version, they’re right in front of you, in one folder that you can move or archive to wherever is needed,” Parilla said.

The LinkSquares Finalize native application for Salesforce is intended to ensure that sales teams have the flexibility to create, review and approve contracts within the platform and workflow of their choice.

For example, the sales person can create the draft in Salesforce and then send it to the in-house attorney to view in Finalize. If they need to go back and forth on the draft, they can easily do so between the two platforms. When it is ready for signature, then they can use the DocuSign integration.

“Contract management platforms need to be fully integrated into business processes and specifically enable the ability for companies to work where they work, with existing systems and in the context of their job roles to get the most benefit out of any platform,” said Vishal Sunak, CEO and co-founder of LinkSquares.

“Our native Salesforce application helps teams accelerate deals and provides full connectivity to supporting business functions without ever leaving the platform,” cofounder and CEO Vishal Sunak said in a statement. “The new Strategic Values deliver executive-level insights, which avoids lengthy review processes and gives businesses more advanced data to identify strategic opportunities.”

Related: On LawNext: Vishal Sunak, CEO of AI Contract Management Company LinkSquares.

For perhaps the first time in his life, Bernie Madoff was telling the truth: He really was dying.

There’s always been a lot of talk, discussion, whatever you choose to call it, about “fit.”  And I mean that not in the sense of physical fitness, but in the sense of fitness for a particular job, or as some lawyers might say in the context of warranties, fitness for a particular purpose.

We hear the term bandied about. “She’s not a good fit for this particular position.” “I don’t think he would fit in with the rest of the team.” And so on. I heard that from my HR clients time and again. And why did the hiring manager go ahead and hire that person? Doesn’t she know that it is always easier to not hire than to have to go through the necessary and appropriate drill to fire someone? You’d think they would have learned but they never did.

Why do I bring up the issue of fitness? During the past year or so, lawyers (and others) have found themselves in a dilemma, not of their own making. For some lawyers, the pandemic has shown that they really like or even love what they’re doing. For others, not so much, and even in some cases, not at all. I think the pandemic has in a sense sorted out those who love what they do from those who don’t. It’s a question of fit.

Even if the job or the career of lawyering is not a fit, we stick to it because that’s what we are told to do from childhood, from liking to loathing, from tolerance and resilience to endurance and, finally, maybe one day, to say as Johnny Paycheck sang, “take this job and shove it.” We are afraid to make changes (student loan debt is one huge consideration for staying put).

But the mental health issues that creep in or slap you upside the head make you consider your choices. Take it from me, as you grow older, your health in most cases doesn’t improve with age, unlike expensive red wine. Waiter, I will have some cheese with the whine.

So, what if you don’t think the law and you fit together anymore? Do you really want to spend the rest of your working life doing something you truly don’t like, let alone tolerate? Are you grateful just to have a job? How do you come to terms with what you are doing versus what you want to do? Don’t look to me for how to reconcile those disparate threads. That’s your job.

Perhaps this checklist, courtesy of Angela Han, a lawyer and coach, may help. I think her checklist (and we all use checklists) can get you thinking about what it is you really want to do.

Han lists items for you to think about and maybe even act on at some point. Work smarter, not harder, don’t be afraid to charge for your knowledge, and don’t be afraid to ask for help. There’s no way we can know everything, even though some people think they do.

Take baby steps. As Anne Lamott says in her book, “Bird by Bird,” that’s exactly what to do. It’s so much easier to take small bites (remember Mom telling us to do that?) than to inhale the whole thing all at once. Lamott has terrific advice both on writing and on life.

Be patient. Easy to say and very hard for lawyers to do. Simmer down. Just as Rome wasn’t built in a day, neither is your career.

Han says to ask yourself what is bothering you the most. You needn’t have all the answers to the problem, but start. You may find that the problem is more of a molehill than a mountain, and I have climbed many molehills.

If this last year has taught us anything, it is that, as Han puts it, “change involves reflection.” So, reflect and then change if you want to. If you reflect and find that you like where you are, personally and professionally, then stay the course. Change is hard and the older you get, the harder it is. I am not saying don’t make whatever change you think you want or is necessary, just know that it’s not easy.

What’s your passion? What do you like to do? I liked litigation because the cases were all about personalities. What did I like to do least? Anything to do with documentation, contracts, and the like, other than settlement agreements. I would rather have had a fork stuck in my eyeball than to negotiate, draft, or review documents. What I liked most about the practice was working with my clients to provide creative (and sometimes unorthodox) solutions to problems, solutions to be found in resolving cases rather than trying them.

Once you have figured your passion, then how do you incorporate that passion into your practice? Find out who does what you like to do and get in touch with them. Don’t be shy; this is your professional life. I have never known anyone who isn’t flattered by inquiries about how to do what they do. Be persistent, but not annoying. You don’t need a mentor, you need a rabbi, a term for a champion, a sponsor, one who has your back.

Finally, Han advises to “focus on the lessons.” We are all learning, at least we should be, every day. Look at how we all have learned to use Zoom. If something that was a passion no longer is, there’s nothing wrong in acknowledging that. We go from one project to another with different levels of enthusiasm.

Take heart; don’t be discouraged. Finding your fit is lifelong work; what you loved to do in your 30s may turn your stomach in your 50s. Your life as a lawyer constantly evolves, which is as it should be.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.