Bar Exam Blues, Blue-Sky Thinking

ThinkstockPhotos-106518831Most of the law school graduates who took the Michigan bar exam in July got good news last week. 61% passed. First-time takers, as usual, fared better -- 71% passed. The breakdown by law school can be found below the fold. While the passers can now get on with the next formidable task, the business of being a lawyer, many others are left to struggle with the need to try again.

The Michigan stats are consistent with nationwide trends -- lower passage rates in a declining pool of bar applicants. According to Bloomberg Business, the average score on the multiple-choice portion is at the lowest level since 1988. The mean score was 139.9, down from 141.5 the year before.

The overall decline in passage rates has been explained by Erica Moeser, the CEO of the National Conference of Bar Examiners, as predictable based on a recent overall decline in the test-taking aptitude of law students as measured by LSAT scores. Moeser's explanation has been sharply criticized within the legal academy. This Legal Whiteboard post is a good representation of the criticism. 

Underlying the controversy about whether recent multi-state bar exams have been fair is the larger question of whether the bar admissions process is the right gate-keeping mechanism for assuring essential quality in the provision of legal services. Interest in the question is fueled by a weak labor market  that has given rise to widespread concerns that the market is flooded with law school graduates who have cleared the bar exam hurdle but are unemployed and not "practice-ready." Whatever the actual magnitude of that phenomenon, would brainstorming outside of conventional conceptions and assumptions lead us to a radically different way to assure the public that legal practitioners are qualified for the work? The State Bar's 21st Century Practice Task Force is taking on that challenge.

In a provocative post at 2Civility, Michelle Silverthorn (MLaw '08), Diversity and Education Director at the Illinois Supreme Court Commission on Professionalism, asks the ultimate question: "Should We End the Bar Exam?" Most of us who have survived the bar exam probably react to that suggestion the same way Marines might react to the idea of abolishing boot camp. But Silverthorn's questions should not be ignored:

Which is it? Is the bar exam a protectionist enterprise that overburdens minority and low-income students, or is it a legitimate method of creating minimal standards that protect American consumers?

But more importantly, does the answer even matter? We are now solidly in a world where people are relying more and more on peer reviews and less on professional evaluations. Would it be sufficient to have the “market” decide which lawyers are qualified and which are not? Perhaps we should invest our bar exam resources in creating a robust peer review and disciplinary system. (Peer review alone would be insufficient; in his “consumer protection” response to Mendenhall, Professor Scott Fruehwald cogently explains why.)

Finding the best possible answers to these questions is only part of the puzzle of solving the best legal future challenge. The range of issues being addressed by SBM's 21st Century Practice Task Force can be found here. To both the 61% of July's test-takers we now welcome into our profession, as well as the 39% who must try again, we commit our best effort.

Continue reading "Bar Exam Blues, Blue-Sky Thinking" »


The Escalating Cost of Technological Incompetence

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The Lawyerist reminds us of several ways in which technological incompetence has caused actual harm to lawyers and their clients. And from the UK, the Solicitors Regulation Authority (SRA) says that cyber criminals have caused “substantial losses” to 50 law firms in 2015.

So far in the U.S. 15 states have amended their rules of professional conduct to bring them in line with the ABA's amended Comment 8 to Model Rule 1.1: 

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

The State Bar of Michigan's 21st Century Practice Task Force has this issue on its radar and will be making its recommendation in March. In the meantime, stay safe out there. And use the State Bar's free practice management resources to help.


Are Two Susskinds Better Than One? Read With Us to Find Out

ThinkstockPhotos-467422984Does anyone want to argue seriously with the proposition that Richard Susskind's The End of Lawyers? single-handedly jumpstarted the conversation about the impact of technology on the future of law? Now comes Susskind and son, Oxford don Daniel Susskind, to tell us that lawyers are not alone -- all of the learned professions as we know them may be going down, as legendary Alaskan lawyer Ted Stevens would put it,  the internets' tubes.  

The Future of the Professions: How Technology Will Transform the Work of Human Experts won't be out in hard copy until January, but you can, fittingly, get it now on your e-reader. Here's the review in this week's The Economist. This blog will be posting on it periodically as we work our way through its seven chapters, ending in the provocative question, "What Should We Want?". Please join us.

From the book's prologue, here's why you should pay attention:

To the sceptics, who might already be tempted to put the book to one side, consider this: in the mid-1990s, when we predicted (in retrospect, rather unambitiously) that electronic mail would become the dominant way in which clients and lawyers would communicate, senior officials at the Law Society of England and Wales said that we should not be allowed to speak in public, that we failed to understand confidentiality, and that we were bringing the profession into disrepute.

Today, an evolutionary blink of the eye later, the Law Society of England and Wales is fully engaged in the work of adapting the profession, its habits, culture and ethics, to technology's imperatives. Check out the speech given by the Law Society's President Jonathan Smithers last week in Vienna, "What does the future hold for small law firms and what is the role of Bar Associations in helping them?"

The State Bar of Michigan, too, is fully engaged. We don't want to disappear down the rabbit hole of history.


TBT: Oh, The Horror of Broadcasting Court Proceedings (1937)

ThinkstockPhotos-511135015"Eyes on the Courts 2015," a bipartisan bill introduced in Congress last week, would mandate broadcast and video coverage of U.S. Supreme Court and federal appellate court proceedings. The constitutionality of such legislation is an open question. The bill provides that the chief justice and the chief judges of the appeals courts could close particular proceedings to cameras if broadcast would "violate the due process rights of a party to the proceeding or is otherwise not in the interests of justice." The reasons for the closure would have to be published at least 72 hours before the proceeding.

A bipartisan letter signed last June by 16 members of Congress finessed the constitutional separation of power issue by asking the Chief Justice to voluntarily provide for live audio broadcasts of U.S. Supreme Court proceedings in advance of the announcement of the blockbuster cases decided that month:

We applaud the Court’s efforts to increase transparency by requiring the release of same-day transcripts and end-of-the-week audio. We are also encouraged by the recent decision to release same-day audio in some limited cases. These efforts demonstrate that the Court has the capability to release live audio. The enhanced transparency that would come from live audio broadcasts of public proceedings would allow people to better understand how our third branch of government operates and more closely track the many important cases that are decided.

We continue to believe that the Court should permit live video broadcasts and support bipartisan legislation to make that happen. We look forward to a debate about the merits of permitting cameras in the Court. In the meantime, the Court should immediately permit live audio broadcasts of its proceedings.

The idea of transparency in court proceedings was abhorrent in the early years of the State Bar of Michigan.  From the Michigan State Bar Journal, November 1937:

A written complaint was filed complaining of broad­ casting of trials and proceedings in Traffic Courts in the City of Detroit, with a request to determine whether such broadcasting constituted a violation of judicial ethics.

Opinion: It  was the opinion of the Committee, after public hearings had been had concerning this important question, that based upon Opinion 67 of the Ethics Committee of the American Bar Association and the recent opinion under date of December 2, 1936,of the Committee on Professional  Ethics and Grievances of the American Bar Association in connection with the so-called "Good-Will Court" sponsored by a national broadcaster, that  such  broadcasts  are unfair to the defendant and to the witnesses; that the natural embarrassment and confusion of a citizen on trial should not be increased by a realization that his voice and his difficulties are being used as entertainment for a vast radio audience. It was also felt that such broadcasts are unfair to the judge, who should be permitted to devote his undivided attention to the case, unmindful of the effect which his comments or decision may have upon the radio audience. The Committee therefore ruled that such broadcasting of traffic trials, as well as the broadcasting of other types of  trials of  court proceedings, is unethical.

16 Mich. St. B.J. 544-550 (1937)


Is "Client-centric" A Breakthrough Concept or Just Old Wisdom?

ThinkstockPhotos-516943101"Client-centric" is a big buzzword of legal futurists, side-by-side with  "creative disruption," commoditization, and unbundling. In August, the ABA partnered with the Institute for the Advancement of the American Legal System (IAALS) in Denver on a conference devoted entirely to the subject, "Client-Centric Legal Services: Getting from Here to There." And as evidence of Michigan's prominence in the legal futures universe, two of the speakers are Michigan-based -- Terri Ticknor Gilbert, executive director of the Oakland County Bar Association, and Prof. Robert Hirshon and Frank G. Millard Professor from Practice and Special Counsel on Developments in the Legal Profession, University of Michigan Law School at the University of Michigan Law School. Hirshon is a member of the State Bar's 21st Century Practice Task Force, while Gilbert serves on the Task Force's Building a 21st Century Practice committee.

Law can't be practiced without a client. Every case we study in law school has at least two clients. Our rules of professional conduct are focused on our ethical responsibilities to our clients. So what does the word "client-centric" add to the discussion about change in the delivery of the legal services? Two possible answers are circulating in the legal futures literature. The first is that over centuries the drip-drip-drip of monopolistic entitlement has eroded our need to really focus on our clients' needs and the siren call of billable hours has taken our eye off the client-ball. After all, who else are clients going to turn to? And what do they possibly have to tell us about their needs and how to serve them that could add to the fruits of our fancy, expensive book-learning and bar-exam-passing ordeal? The second answer is that even if we have managed to stay laser-sharp in our focus on our clients, technology offers us opportunities to serve our clients' needs more efficiently and effectively, particularly if we recognize the value of clients' active, informed involvement in their own legal issues. Richard Granat on eLawyering Blog offers this list of Internet-based applications that either enhance the client’s understanding of their legal rights, or enable them to represent themselves with the assistance of an attorney, are examples of client-centric legal services.: 

It's not a particularly mellifluous word, but "client-centric" is a least a modern reminder of our core purpose. At best, a renewed focus on clients' needs combined with new technology gives our profession a real opportunity to give better service to more of those in need of it. Not new wine in old bottles, but vintage wine in a better bottle.


Repairing Lawyer Image

ThinkstockPhotos-483454067Why Are Lawyers So Unpopular and Stressed?, a post by Mark Cohen at LegalMosaic, makes the point that a lawyer's healthy self-image is tied to a healthy professional image. This is not a new problem, of course. Lawyers have been the object of ridicule for about as long as there have been lawyers. Across centuries and cultures literature is rich with attorney caricatures and criticism of attorneys who fall show of our profession's ideal. 

But lawyers are right to worry that social media and advertising pose new an unprecedented and fundamental threat to the profession's resiliency. Fortunately, the same market forces and technology that are creating this new danger also may hold the key to substantial improvements in access to justice, and a lasting improvement in lawyer image. SBM Immediate Past-President Tom Rombach and President Lori Buiteweg both emphasized the State Bar's commitment to addressing the threats and opportunities in their remarks at the Annual Meeting Inaugural luncheon last week.

Cohen's post, too, touches on many of the issues and remedies at the center of legal futures discussions, and now being thrashed out by the State Bar's 21st Century Practice Task Force.

He concludes:

Lawyers will be happier when they restore public trust.  Delivering more value, speaking plainly, being more transparent, embracing innovation, responding to the needs of the marketplace, providing affordable service for all who need it, focusing on delivering solutions, utilizing tools available to deliver legal services more efficiently and collaboratively, and recognizing that “just being a lawyer” doesn’t often cut it anymore would go a long way towards making lawyers more popular and happier.

Working together to examine what the accumulating evidence about public perception, lawyer competencies, the cost of legal education, and unmet legal needs tells us is an essential first step, and Michigan is taking it.

The path SBM has embarked on seems a bit more promising than the upcoming National Love Your Lawyer Day (who knew?!) on November 6.  As they have been doing for 14 years, the American Lawyers Public Image Association (ALPIA) is asking people to show love, appreciation and thanks to lawyers and judges everywhere on that day:

We encourage the American public to shower their favorite legal eagles with sincere affection: a phone call, a card, or even flowers or a gift. That also means no lawyer jokes and no lawyer bashing on that day! In return, we ask all attorneys to perform one hour of pro bono work or donate one billable hour to a charity like the Make-A-Wish Foundation.

Don't get me wrong: I am all for improving the image of lawyers, and for respecting and appreciating lawyers and judges every day. SBM's A Lawyer Helps aims to do just that in a sustained way by persistently highlighting the real-life stories of our members' improving access to justice and contributing to the betterment of their communities. But telling the public to lay off lawyer jokes for a day strikes me as, well, a joke, likely to inspire more jabs at us than to quell them.

As it happens, October is Pro Bono Month in Michigan and around the country. Click here for Michigan resources on how to participate. 


Vermont Weighs In on the Future of Legal Services

Prompted by a call from Vermont's Chief Justice, in March 2014 the Vermont Bar Association convened a joint commission similar to the ongoing initiative of the State Bar of Michigan's 21st Century Practice Task Force. Like Michigan's task force, Vermont's commission was broad-based, composed of lawyers, law school faculty, judges, paralegals, technology specialists, and other members of the greater legal community. The Vermont commission operated through four committees with overlapping responsibilities: Legal Education, Court Process, Legal Services, and Technology. Michigan's Task Force has three committees: Access and Affordability, Practice, and Regulatory. 

The Vermont Commission's newly released report is here.  

Its key recommendations:

Legal education - License paralegals. Unlike Washington's LLLT's (limited license legal technicians) a licensed paralegal would be not be permitted to work independently from an attorney. 

Court Process - reform small claims dockets, revise complex litigation rule, explore creation of a business court, extend judicial assignment rotation, revisit the question of a generalist judiciary.

Legal Services - overhaul the state court website, put live legal advisors in courthouses, increase legal aid funding, expand law school internships/practice in rural areas, expand use of paralegals for common retail problems, and create a statewide Office for Access to Justice.

Technology - update case management system, create statewide court calendar system, expand video conferencing and phone appearances, offer greater bar-based technology support for lawyers, and expand online dispute resolution.


Self-Represented Litigants: Turns Out We North Americans Really Are Alike

ThinkstockPhotos-121024995Hockey. Humor. English common law. And, apparently, legal services in the 21st century. All things that U.S. and Canada have in common. The University of Denver's Institute for the Advancement of the American Legal System IAALS has released the preliminary results of a study of self-represented litigants that turns out pretty much to mirror the results of a 2013 study of Canadian self-represented litigants. Among its key findings: 1/4 of those surveyed had previously retained a lawyer, and, most significantly for the practicing bar, the most common advice that self-represented lawyers had for others was “get a lawyer.” Both studies showed that the primary motivation for self-representation is financial but that the motivation is "complex and cumulative."

HT @WillHornsby


TBT 1963 Edition

1963.4.comic.lawyerswivesAt this year's Annual Meeting Lori Buiteweg will be sworn in as the 81st President of the State Bar. Don't miss it. She will be the sixth woman to serve as State Bar president.

The Lawyers' Wives of Michigan was formed during the 1956 State Bar Annual Meeting to foster entertainment for the spouses of lawyers attending the meeting, and was formally approved by the Board of Commissioners the following year. The group has since evolved into the community-oriented affinity association, Michigan Lawyers Auxiliary, open to all spouses of Michigan lawyers.


Lawyers' Big Legal Future Imperfection: Our Penchant for Perfectionism

ThinkstockPhotos-153742489The need to get everything exactly right has long been identified as a threat to lawyers' mental health, but I haven't seen a better, more succinct explanation of why the legal profession's penchant for perfectionism also stands in the way of advancing toward the best legal future than this post from last week at 3 Geeks and a Law Blog, which explains:

The kind of people who proclaim that mistakes are unacceptable even when they recognize mistakes are unavoidable do not really believe they are perfect. Rather, they believe that people like them are not supposed to admit imperfection. This remains one of the biggest impediments to change in our industry. As I try to convince law firms and law departments to engage in structured dialogue, I constantly run into people on both sides of the relationship who are threatened by the idea of an open discussion about doing better. If I concede that we might do better then I am confessing that I've been wrongWe have to get beyond the idea that improvement is an indictment of the past. Our job is not to be perfect. Our job is to do the best we can until we can do better, and then do better.

I think the trick to both better emotional stability and positive change in the profession is sorting out what we can and must get right (the equivalent of the airplane or operating room checklist stuff) -- the deadlines and key contract details, for example -- and what we can experiment with -- a different way of reaching a goal, completing a task, or organizing a project, for example. Knee-jerk perfectionism is a huge energy waster and may be just as much an obstacle to progress as sloppiness and inattention. For tips on how to manage perfectionism, see Tips for Lawyers to Exorcise the Perfectionism Demon.