Women in the Law

Posted on December 10, 2012 04:33 by Kim Tran

According to an article in Inside Counsel this week, which cites to U.S. census figures, women now hold one-third of all jobs. This figure includes legal jobs which corresponds directly to the recent rise in women attending law school.  Yet despite our gains in the workforce and in the legal sector, we have yet to make significant gains when it comes to leadership and partnership roles.  

 
Exactly why that is still unclear, and everyone seems to have an opinion.  Often the argument sounds like a chicken or the egg debate.  Is it that women simply choose to leave or turn down top positions to raise families or is it because those positions and opportunities are made less available to them?  Maybe the answer is a mixed one and one more dependent on that individual woman’s circumstances and nothing a corporation or law firm should worry about, or maybe there is a something that law firms and corporations can and should do to ensure that there is a more equal distribution of females holding top positions.  Regardless of your position on the topic, the uptick of women in the workforce, and in law, is not likely to change any time soon.  How do you think this trend will change the discussion?  Do you think that the gap will eventually close itself with the rise of women workers or do you think that the gap will only close if proactive measures are taken by both existing leadership?  
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Categories: Law School | Women in Law

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The underlying premise of the U.S. Supreme Court’s precedent in Grutter v. Bollinger is that students benefit from being in a racially diverse educational environment.  As the justices prepare to reconsider the issue of affirmative action in higher education, new research has emerged which examines Grutter’s premise.  The study, “Does Race Matter in Educational Diversity? A Legal and Empirical Analysis,” concludes that law students actually do benefit from racial diversity on campus and that law schools should work to maintain diverse classes.  University of North Carolina School of Law professor Charles Daye conducted the research along with University of North Carolina psychology professor A.T. Panter; University of California, Los Angeles sociology professor Walter Allen; and University of North Carolina at Greensboro professor emeritus Linda Wightman.  Their findings are based on data collected from law schools over a decade. The team surveyed approximately 6,500 incoming students at 50 law schools about their own backgrounds, expectations and experiences. They also conducted periodic focus groups consisting of approximately 200 students throughout their three years in law school.  

The researchers set out to answer two basic questions: Does race make a difference to what students bring to law school? If so, are any differences reflected in the quality of education students receive?  The data shows, resoundingly, that students of different races do come to law school with differences in experience and perception, Daye said.  Perhaps more important, those differences translated into a richer educational experience overall, according to the surveyed students.  "Diversity matters in the way students conduct conversations in class, how they interpret cases, in the way they interact in social settings and with their professors," Daye said.  Critics contend that the study authors used shoddy science to reach predetermined conclusions by relying on self-reporting of law students and assert that the study only demonstrates that students think that diversity helps their understanding of the law.
 
Does race matter in educational diversity and, if so, how do you measure or quantify the difference that it makes?  Does race make a difference to what students bring to higher education?  If so, are any differences reflected in the quality of education students receive?
 

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The iPad is becoming more common and much less a novelty in the everyday practice of law.  It’s advantages in the courtroom are highly praised.  The ability to make a voluminous file highly portable is unmatched.   The out of office connectivity give us an ability to work remotely and on a moment’s notice that has never before existed.  Yet it still is criticized for its inability to do the one thing that lawyers do most: draft documents.  In the iPad world, this is know as “generating content.”  This article in Time by Harry McCracken addresses the content creation “problem” and raises some interesting points. 

Do you use your iPad for more than quick email responses?  What drafting obstacles do you have with the iPad?  Is speech recognition on mobile devices like the iPad the end of the Dictaphone?

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I came across a post on the Lawyerist on the question whether good legal writing is inherited or developed.  Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.

There are actually three steps.  The first is to realize your legal writing needs help and care enough to try to improve it.  There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs.   Don't be that lawyer.  Take pride in your product.  The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven't figured out how to navigate away from this page.

The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice.  It's ironic that I spent several (ok 6, but who's counting) years getting a degree in Literature-Writing from a really solid university, but it wasn't until I was a staff member on Law Review that I truly began to understand the importance of active voice.  If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I'll provide a very easy example to illustrate the difference.  Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant.  Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.

See? Simplest thing in the world.  But, even those of us who generally strive to use active voice occasionally fall into passive voice.  The key is to recognize when you're doing it and decide whether the sentence you've created could be improved by changing the voice.

The second way to immediately improve your legal writing is equally simple.  Pare back the number of words you use to say what you're trying to say.  This was something my mentor taught me when I was a baby lawyer and I've generally tried to adhere to the principle, at least when writing to a court or opposing counsel.  Basically, every word in any sentence should be necessary.  Nothing extraneous.  This will automatically take care of the tendency to include "herein" and other pointless words.  It also forces the writer, you, to think about what you're trying to say and how to say it in the clearest way possible.  Judges and clerks appreciate clarity.

Now.  This second "way to immediately improve your legal writing" is not a rule.  It's just an approach.  And, it's an approach I freely disregard when I want to emphasize something through repetition or diction (word choice).  Hell, I often write entire paragraphs in the passive voice  and include a lot of extra words.  But, when I do it, I do it purposely, usually for effect.  Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.*  (*Ok, I'll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia.  I know that writers who know what they're talking about, as opposed to armchair poseurs (who me?), have zero tolerance latin phrases.  If I give in to the urge to use them in an early draft, I almost always delete them.)

There.  If you struggle with your legal writing, try these two suggestions.  I guarantee you'll see results.

(As originally posted at http://atcounseltable.wordpress.com/2012/07/02/two-sure-fire-ways-to-immediately-improve-your-legal-writing/)

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This Day In History: June 13th

Posted on June 14, 2012 04:03 by Alison Y. Ashe-Card

On this day in 1967, President Lyndon B. Johnson nominated Thurgood Marshall to fill the seat of retiring U.S Supreme Court Associate Justice Tom Clark, saying that this was "the right thing to do, the right time to do it, the right man and the right place."  The Senate confirmed his nomination on August 30th by a vote of 69-11.  Upon his swearing in, Marshall became the 96th justice and the first African-American to sit on the nation’s highest court.  Only one other African-American, Clarence Thomas who succeeded Marshall, has served as one of the Court’s 112 justices.

 
Marshall, a Baltimore native, graduated from Lincoln University cum laude in 1930 and from Howard Law School in 1939 at the top of his class.  Marshall wanted to apply to his hometown law school, the University Of Maryland School Of Law, but the dean said he would not be accepted because of the school's segregation policy.  He practiced law privately in Baltimore before joining the NAACP as assistant counsel in 1936.  As the NAACP’s chief counsel from 1938 to 1961, Marshall, argued 32 cases before the high tribunal, repeatedly challenging racial segregation, most notably in public education. He won 29 of those cases, including a historic victory in 1954’s Brown v. Board of Education decision when the court, reversing itself, unanimously found that segregated schools violated the equal protection clause of the 14th Amendment.

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May 1 is Law Day

Posted on May 1, 2012 04:35 by Matthew Cairns

I often find it curious that Law Day falls on May 1st.  Growing up, May 1st was always the day the news carried pictures of over the top parades in Red Square in Moscow where the USSR would display its missiles, goose stepping soldiers and mummified Politburo.  In hindsight, that seems quite antithetical to what I now celebrate on May 1st – the rule of law that sets our country apart from all others.  Being a lawyer should be and most often is a noble profession.  Incrementally, lawyers and judges shape the rules of conduct for society.  We protect the rights of individuals who are victims of crime.  We hold the government’s feet to the fire when it seeks to deprive a person of liberty.  We work to ensure that injured persons are fairly compensated when they prove their case to a jury of their peers.  We provide the vehicles for businesses to form, grow, prosper and provide jobs.  We protect assets at death so that heirs can enjoy the fruits of their loved ones’ hard work.  So on May 1, 2012, remember the great things lawyers and judges do for society and all of us, and not the punch lines of inane lawyer jokes.

 

Matt is a partner with Gallagher, Callahan & Gartrell in Concord, New Hampshire.  He is the DRI Immediate Past President.  He also sits on the Board of Directors for the NFJE and LCJ.

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The deadline for DRI’s annual Law Student Diversity Scholarship, open to incoming second- and third-year African American, Hispanic, Asian and Native American students, is Friday, April 27. Please remind your students to send in their applications for review by this date. This is a fantastic opportunity! Two scholarships in the amount of $10,000 each will be awarded to applicants who best meet the following criteria:

  •  
    • Demonstrated academic excellence
  • Service to the profession
  • Service to the community
  • Service to the cause of diversity

Visit the DRI website for full details on eligibility and to download the scholarship application.

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Categories: Diversity | DRI Committees | Law School

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Anyone who has viewed the viral video, “So You Want to Go to Law School” on YouTube may recall an older male attorney describing one of the more mundane aspects of the practice of law (e.g., responding to Requests for Admissions created solely to confuse you) to an earnest young woman considering going to law school. Despite the male attorney's ominous warnings, the female protagonist in the video, Carrie-Ann Fox, nonetheless decides to go to a fictitious law school and even spawns a sequel YouTube video. Unfortunately, many women are making a different decision—to not go to law school. As a result, this could be a critical time for law firms to make the practice of law more "friendly" to women.

The data provided in a recent Catalyst study illustrates this fact. (Catalyst’s “Women in Law in the U.S.” (2011).) Catalyst is not alone in reporting this trend—according to the ABA, in the 2009 to 2010 class, women made up 47.2 percent of J.D. Students. (American Bar Association, “Enrollment and Degrees Awarded 1963-2010.") This is a noticeable change from 1993, when women comprised 50.4 percent of J.D. students. (American Bar Association, “First Year and Total J.D. Enrollment by Gender 1947 – 2010.”)

Several factors are likely to blame for the erosion of female law school applicants—the economy, related concerns about student loan debt, and perhaps most importantly, the lack of women in the upper echelons of law firms and corporate law departments. This stalled advancement coupled with the perception that law school may not be a good investment in these trying economic times could contribute to a long-term setback for women in the profession. These troubling statistics have certainly been noted by the media—the New York Times, for example, published a piece last year documenting the progress of women in the law in light of the 30th anniversary of former Supreme Court Justice Sandra Day O’Connor hearing her first case on the United States Supreme Court. (Editorial. "The Glass Ceiling." New York Times on the Web, 8 Oct. 2011. 5 April 2012.) The editorial noted that women with children are having the hardest time staying in the profession, and are half as likely to be hired as women without children.

In 2010, women made up 31.5 percent of all lawyers. (Current Population Survey, Bureau of Labor Statistics, “Table 11: Employed Persons by Detailed Occupation, S*x, Race, and Hispanic or Latino Ethnicity,” Annual Averages 2010 (2011).) However, 11 percent of the largest law firms in the United States have no women on their governing committees. (National Association of Women Lawyers and The NAWL Foundation, Report of the Sixth Annual National Survey on Retention and Promotion of Women in Law Firms (October 2011). At many firms, female partners do not play a major role in business development. Indeed, women partners account for only 16 percent of those partners receiving credit for having $500,000 or more business at law firms. (Id.)

After assessing the amount of time, effort, and money required to complete law school and make partner at a law firm, some women may determine that it is not worth the sacrifice, if being partner does not give them actual power relative to firm business decisions. In a survey of the 50 best law firms for women, only a fraction of the decision makers were women: 10 percent of firm chairpersons were women; 2 percent of the firms had women managing partners; 19 percent of the equity partners were women; and 28 percent of the non-equity partners were women. (NAFE and Flex-Time Lawyers, “Executive Summary,” Best Law Firms for Women 2011 (2011).)

This lack of power translates into cold hard dollars, as women lawyers made approximately 77 percent of male lawyers' salaries in 2010. (Current Population Survey, Bureau of Labor Statistics, “Table 39: Median Weekly Earnings of Full-time Wage and Salary Workers by Detailed Occupation and S*x,” Annual Averages 2010 (2011).) This lesser income, combined with the demands facing women at home, may not make the practice of law as appealing to females who may feel that they are choosing between a family life and a successful law practice. One study found that nearly half as many male lawyers as women lawyers (44 percent vs. 84 percent) have a spouse that is employed full-time. (Catalyst, Women in Law: Making the Case (2001).) So while top male lawyers may have spouses who do not work full-time, if at all, many female lawyers' spouses work full-time, and the demands of both spouses working is particularly hard on these families.

What do these declining enrollment figures mean for the future practice of law? A decreasing number of females entering law school will undoubtedly result in fewer female attorneys in the coming years. And, that could result in even fewer women in leadership positions within firms, which may further perpetuate the enrollment trend.

What can law firms do to encourage women to enroll in and complete law school? Law firms should consider instituting female-friendly work practices, such as generous maternity leave, flex-time, and telecommuting ability. These business decisions may lead to increased productivity and lower turnover rates. What goes without saying is the impact of technology on the modern lawyer's life. Gone are the days of being “off-the-clock.” The BlackBerry, iPhone, and other PDAs have contributed to a whole new level of accessibility for most attorneys, particularly those who communicate with clients. Although there are some drawbacks to the norm of around-the-clock communication, it has ushered in a new age of flexibility for attorneys who do not have to be in their office to review e-mails, work documents, and participate in telephone conferences. These advancements have benefited female practitioners to the extent that they allow for some of the same work to be done from home, which is particularly helpful for those with family obligations.

Notwithstanding the percentage reduction in law school enrollment, there are still a number of organizations focused on advancing women in the profession. Groups like DRI's Women in the Law Committee (WITL), the National Association of Women Lawyers (NAWL), and the National Association of Women and Minority Owned Law Firms (NAMWOLF) have undertaken noteworthy work aimed at ensuring the success of women both in law school and in private practice. The WITL, for instance, holds an annual Sharing Success Seminar, n/k/a Women in the Law Seminar, which provides an opportunity for female attorneys to discuss tried and true methods aimed at achieving success in and outside of the courtroom. NAWL has similar initiatives like the continuing series, “Taking Charge of Your Career,” designed to provide the skills and information that women lawyers need to reach leadership levels in their practice settings. These efforts will hopefully cause law firms to pay closer attention to these important issues moving forward in order to counteract the enrollment decline and ensure diversity in future generations of attorneys to come.

Michele Hale DeShazo is senior counsel with the New Orleans office of Kuchler Polk Schell Weiner & Richeson LLC, in which four of the firm's five founding partners are women. Her practice is entirely devoted to litigation, including environmental, toxic tort, product liability and general civil defense litigation.

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The question is hotly debated among law school students, lawyers, judges, commentators, and policy makers: is law school still worth it?  We've all heard the stories of bright, hard-working students who graduate from law school only to be faced with the arduous task of finding a permanent legal job in a struggling economy while shouldering the astronomical burden of $150,000 in student loan debt.  But the bigger questions are:  How did we get here?  And what should we do about it?

According to a study done by the ABA Research Center, in 2008 there were 1,162,124 lawyers in the United States.  David Barnhizer, Redesigning the American Law School, 2010 Mich. St. L. Rev. 249, 276 (2010).  By 2009, that number had climbed to 1,180,386, which means that in the span of one year, 18,262 lawyers joined the profession.  Id.  Of the approximately 1.1 million lawyers in the United States, 400,000 were licensed in the last 10 years.  Id. at 282. 

While law schools continue to turn out legions of graduates, the pool of available jobs for these newly minted attorneys has shrunk.  According to recent data published by the National Association for Legal Career Professionals (NALP), the overall employment rate for new law school graduates in 2010 was 87.6 percent.  NALP, Employment for the Class of 2010 – Selected Findings, available at http://www.nalp.org/uploads/Classof2010 SelectedFindings.pdf.  This number is the lowest it has been since 1996, when the unemployment rate for new law school graduates fell to 87.4 percent.  Id.  A reported 15,000 jobs at large law firms have been cut since 2008.  David Segal, Is Law School a Losing Game?, N.Y. Times, Jan. 8, 2011.

In addition to graduating with fewer future job prospects, many graduates carry with them staggering amounts of debt.  The average tuition at an American public law school is said to have increased by 448 percent between 1987 and 2005.  William S. Howard, The Student Loan Crisis and the Race to Princeton Law School, 7 J. L. Econ. & Pol'y 485, 486 (2011).  Approximately 85 percent of graduates from ABA-accredited law schools carry an average debt load of $98,500.  William D. Henderson and Rachel M. Zahorsky, The Law School Bubble, ABA Journal, Jan. 2012, at 30-35.  By 2020, the Office of Management and Budget estimates that direct loans to students will total $1.8 trillion, and between 2 and 4 percent of that will be for law school graduates.  Id. at 34.

One of the most frequent criticisms of the current version of the American law school model is that in addition to leaving many students without jobs and with enormous debt, it does not adequately prepare them for the practice of law.  Critics argue that while law schools spend three years teaching students archaic principles of law and encouraging heated policy debates, what law schools don't do is teach students how to be practicing lawyers. 

Some have recently proposed that we deregulate legal education by allowing anyone (not just law school graduates) to take the bar exam, arguing that eliminating the requirement of a formal legal education would promote greater efficiency and reduce the problem of law school debt.  See, e.g., George Leef, Allow Anyone to Take the Bar, N.Y. Times, July 25, 2011.  As part of a discussion of this issue in a series posted by the New York Times, George Leef contends that law school is unnecessary because lawyers learn the practical skills they need for their jobs when they begin working, rather than in the academic classes they take in law school.  Id. 

Clifford Winston echoes Mr. Leef's sentiment, contending that "occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance."  Clifford Winston, Are Law Schools and Bar Exams Necessary?, N.Y. Times, Oct. 24, 2011.  Mr. Winston argues that eliminating law schools and bar exams would result in reduced legal costs, because non-lawyers would be able to charge less for their services with no student loans hanging over them.  Id.

Another less drastic proposal for change involves changing the law school model to shorten the time spent in classrooms and get more students into the practice of law earlier.  David Lat has proposed a model in which the first two years of law school are used for traditional legal instruction, while the third year is used for apprenticeships.  David Lat, Bring Back Apprenticeships, N.Y. Times, July 25, 2011.  Mr. Lat argues that "[u]nder this system, aspiring lawyers would stop accruing debt and start earning money at an earlier point."  Id.  Law students would gain the practical knowledge their employers want them to have, and employers could train workers to their specific requirements.   Id. 

On the other hand, others argue that shortening or eliminating the law school curriculum – even if it would reduce students' debt burden – would be a mistake.  Kevin Noble Maillard, It's Not a Trade School, N.Y. Times, Sept. 13, 2011.  Kevin Noble Maillard argues that the traditional legal model should be continued because "[i]t prepares people to become leaders in our society, which makes it imperative that they be rigorously trained as thinkers."  Id.

Indeed, many argue that law schools are inherently valuable because they teach students to think like a lawyer.  See, e.g., Geoffrey R. Stone, Learning to Think Like a Lawyer, N.Y. Times, July 15, 2011.  Geoffrey Stone contends that what law schools do best is develop critical analytical skills:  Rather than teaching students to memorize principles of law, law schools teach students how to apply those principles to different fact patterns, so that when they hit the real world they are prepared for anything.  Id.  Additionally, as Leonard Long points out, treating law school as a trade school ignores the fact that not everyone who goes to law school ends up practicing law.  Leonard J. Long, Resisting Anti-Intellectualism and Promoting Legal Literacy, 34 S. Ill. U.L.J. 1, 2 (2009).  Many trained in the legal method often eschew law practice in favor of careers in business, politics, journalism, or academia.  Id.

One proposal that seeks to balance law students' need for increased practical training with the recognition of the inherent value of a formal legal education is the suggestion that all law students participate in some sort of clinical coursework during law school.  See Richard A. Matasar, The Viability of the Law Degree: Cost, Value, and Intrinsic Worth, 96 Iowa L. Rev. 1579, 1612-13 (2011).  Currently, only 3 percent of law schools require students to participate in clinical training.  David Segal, What They Don't Teach Law Students: Lawyering, N.Y. Times, Nov. 19, 2011.  Richard Matasar contends that if all law schools required (or at least strongly encouraged) their students to complete a clinical course of study before graduation, those students would leave law school with more of the practical skills necessary to succeed in a variety of professional legal settings.  Matasar, supra at 1612-13.

Even this proposal, however, has its difficulties.  Mr. Matasar himself acknowledges that requiring each student to take a semester's worth of clinical coursework could end up being an expensive proposition for some law schools, which might need to hire additional faculty and other resources to support the courses.  See id.

Commentators have primarily called upon law schools, regulators, and policy makers to decide upon and implement these institutional changes.  In the end, however, one of the easiest solutions is within the reach of every member of the bar.  Increased mentoring of prospective law school students, including candid discussions about the costs of law school and the outlook for potential job prospects, is something we can all contribute.  For students who carefully consider their reasons for attending law school and who make decisions about their student loans with realistic expectations of their ability to repay them, law school may still be worth it.  As practicing lawyers, it is our responsibility to seek out and mentor these students. 

 

Carolyn Pratt graduated from the University of North Carolina School of Law in 2008.  After a two-year clerkship at the North Carolina Court of Appeals, Carolyn joined the Wilmington, North Carolina office of Cranfill, Sumner & Hartzog, LLP as a member of the firm's litigation group.

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Less Jury Trials Impact Many; Florida Study

Posted on February 10, 2012 08:56 by Lori Vella

 If you spend some time looking at the statistics, you will see the number of jury trials is swiftly declining.  Many states and organizations have recognized the decline, voicing concerns about the resulting impact on the judicial system, the public and lawyers.  The Florida Bar created a special taskforce, the Special Committee to Study the Decline in Jury Trials (“Committee”), to research and analyze the trend, determine the root cause of the decline and recommend a course of action to the Florida Board of Governors to minimize the impact of this decline.  The Committee issued its final report in December 2011.  The full report is available at floridabar.org by clicking “About the Bar,” followed by “Committees” and then “Special.”

The Committee reviewed, among other published studies, Professor Marc Galanter’s article The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (1 J. Empirical Legal Studies 459 (2004)).  When you view the statistics, the decline is apparent, and staggering.   For example, in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876.  In Florida civil cases, 1.6% of total civil cases (155,407) were resolved by jury in 1986.  By 2009, the percentage reduced to .2%, while the number of civil cases increased to 401,463. 

According to the Committee, there are several reasons why jury trials suffered declines.  For civil cases, the rise of alternative dispute resolution mechanisms contributed markedly.  The expense of trials is always another common deterrent.  Another factor is the time it takes to bring a case to trial.  Despite the reduction in number, it was noted that jury trials have become more complex -- longer and more complicated. 

The declines have not been without negative impacts.  With fewer jury trials, fewer people participate in the judicial system as jurors.  Jury service helps educate the public about the justice system.  It is a simple way for the average citizen to play a role in governmental decision making.  If the nearly all disputes are resolved privately, via mediation or arbitration, rather than in an open courtroom, the public’s perception of the justice system will become further skewed.

The decline in jury trials also contributes to reduced funding to the court system, as the decline itself may be viewed as a reason to fund less.  This contributes to a never ending cycle of funding and less independence of the judiciary. 

One of the greatest impacts, however, is the effect on new lawyers.  A lawyer learns best by first-hand practice.  With less opportunity to conduct a trial, lawyers must look to other training which will always be less adequate than the real thing.  The new lawyer ends up feeling uncomfortable and unsure regarding his or her skills.  When the opportunity finally arises, the lawyer may shy away from the experience because he or she simply does not know how to try a case. 

The Committee recommended several measures, including full funding of the courts.  To reduce the impact, the Committee also suggested training and mentoring programs for young lawyers, such as certified legal intern programs or State Attorney/ Public Defender internships.  The Committee further recommended techniques to the bench to more efficiently administer judicial duties, with less cost to litigants, such as streamlining discovery and encouraging the use of expedited jury trials. 

DRI created the Jury Preservation Task Force to examine this federal and state vanishing jury trial phenomenon and report on its findings, which will be published in a future edition of For the Defense.    

 

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