Thursday, May 17, 2018

Legal Practice Guide 11: What Went Wrong at Arizona Summit?

As Hall & Oates once crooned, what went wrong?!?!?

Indeed, that's what they're asking in Arizona atop the Summit of gory glory.
In the early 1990s, Donald Lively had a vision for a new type of law school.
[H]e never envisioned that the for-profit model that made the schools possible would open the schools to such criticism and scrutiny, eventually threatening their very existence.

He always assumed people would just see his good intentions —  to fulfill the school's mission of student diversity.
Sometimes as a lawyer you have to give your client advice they don't want to hear.  You might - hypothetically! - have to say something like, "Donnie, your idea is fucking stupid."

Thankfully, that isn't the case here.  Arizona Summit was a brilliant idea.  As the article points out, Phoenix was starving for lawyers and the legal profession needed some variety in the bowl of vanilla ice cream.

Of course, as we know from the scambloggers' existence, there are always negative Nebby's wanting to rain on a cash parade:
Some in the legal community were skeptical of the schools' for-profit status. 
The American Bar Association, the national accrediting body for law schools, put Arizona Summit on a two-year probation in March 2017 for being out of compliance with admissions policies and academic standards and for failing to maintain a rigorous program.
First-year students typically take Torts and Civil Procedure as separate courses. But the Arizona school combined them. School officials would later find that students weren't getting enough instruction in either subject. 
ASU typically takes the top 25 percent of Arizona Summit’s class each year.
Arizona Summit officials acknowledged some of their graduates struggle to pass the bar exam. They've been encouraging students to take the exam in New Mexico, where they say it's easier to pass, and graduates had a 54-percent pass rate in February.
Fiends!  That's a veritable rogues gallery of people who simply don't want diversity in the legal profession.

What went wrong?  Nothing except the world turning against it.

Today's legal practice exercise is to pretend that you're Arizona Summit's lawyer.  What advice can you give them facing this parade of horribles?
  1. Keep on truckin', bro', no need to make changes when yer the Summit.
  2. Sue the ABA and/or Arizona State in federal court.
  3. Thumb nose at the ABA: double-down on diversity and lowered admission standards, exponentially increase tuition to account for the risk the school takes in admitting less-qualified students.
  4. Continue adjusting admissions standards and/or gimmicky bar passage efforts just barely enough to stay ahead of the ABA's mercilessly Tantalan chopping block and do little else.
  5. Remodel the school with a mid-century western swing motif and affordable high-class dining options that superficially incorporate the uniqueness of Arizona's cultural heritage with otherwise standard items like delectable salads and ham sandwiches. Use avocado and ancho mayo.
  6. Emphasize faculty publication rates, add to the library, and pay out the nose for top LSAT scorers to play the rankings game.
  7. Rename yourself "Arizona State Summit."
There's really not much else to do here, right?  Sometimes as a counselor the best thing you can do is throw your hands up and say, "ScammerClient, you have the solution within."

Friday, May 11, 2018

Legal Practice Guide 10: Complaint Drafting and Rule 11

A masterclass in complaint drafting.
124. The ABA, in failing to enforce and ensure that [Charlotte School of Law] was in compliance with the Standards failed to act as a reasonable accreditor, recognized by the DOE for purposes of ensuring compliance with Title IV of the HEA. 

125. The ABA was the direct cause of Love’s damages because Love opted to enroll at CSOL based upon the ABA’s certification to prospective law students that CSOL had achieved and was in full compliance with the Standards when, in fact, CSOL was not in full compliance or substantial compliance with the Standards when Love enrolled at CSOL.
Good fuckin' luck with that.  If you want another masterclass, Infilaw's got you covered:
Florida Coastal School of Law filed suit in federal court Thursday against the American Bar Association alleging that the ABA violated due process in its accreditation review process.

The good news, justice warriors, is that Rule 11 simply doesn't apply when you're chest-out justice fightin'.

Scam on.

Sunday, May 6, 2018

Legal Practice Guide 9: Texas-Style Fraud and Exempt Employees under the FLSA

From The Texas Tribune (no, I don't know what it is, either):
A former director at the University of Texas at Austin's law school was arrested Thursday for claiming he was showing up for work while he was actually galavanting in tourist hot spots like Cozumel, Las Vegas and the U.S. Virgin Islands, according to court documents and local law enforcement authorities.
During multiple pay periods, Shoumaker logged regular 8-hour days with the university while he was actually cavorting out of state, according to the affidavit. 
"Cavorting" and "galavanting" sound like actionable offenses, but are they?  As a director of facilities, Shoumaker was almost certainly an exempt employee.  You may have heard the term used pejoratively when people say things like "lawyers are exempt - no overtime for Saturday morning lashings!" But it also applies in the positive sense.  If you're good enough at your job, you're exempt from showing up on strict "8-hour days."  People often criticize law professors for working like three days a week half-assedly, but all they're doing is taking advantage of their full rights under the FLSA.

Should we really be punishing law professors for exercising their rights?

But back to Mr. Shoumaker.  It seems most likely that he was working remotely from those locations.  Supposedly damning - naive journalists and prosecutors - are credit card charges for various restaurants including Hooters and an $81.00 massage.

The massage is obvious: the poor man was stressed from his job.  And Hooters?  Come now - what man of class goes to a hot tourist spot and eats at motherfuckin' Hooters?  In Las Vegas, there's no reason to eat middle class with half-dressed women unless you're there on boring law school administrative business.

So while at first blush this may seem like a man who just said fuck it and did whatever he wanted following the example of Larry Sager's forgivable loan, it's likely not wrong at all, but rather a shining example that you can do law school work even while sipping on glamorous drinks with attractive people taking honest vacations.

Tuesday, May 1, 2018

Legal Practice Guide 8: Qui Tam and

Qui Tam.  It's a Latin phrase, an abbreviation of a much longer Latin phrase, meaning to sue on behalf of the King because someone else broke the law and now gimme gimme gimme a piece of that succulent monetary penalty.  Daddy's vacation condo needs a new bathroom.  In other words: whistleblowers!  People who have inside information that someone's cheating Uncle Sam. 

There are multiple elements to a good Qui Tam case - try Westlaw, it's great - but if one of these discontents stumbles into your office or makes a nervous phone call, you definitely should make sure that it's actually inside information they're wanting to squeal about and not something that's publicly disclosed.  Because if everyone knows about it, it ain't fraud and no one's blowin' any dabgum whistles.

Like with Charlotte Law, the gorgeous murdered slut of North Carolina:
Judge Roy Dalton Jr. of the U.S. District Court for the Middle District of Florida on Monday granted InfiLaw’s motion to dismiss the qui tam suit filed in 2016 by former Charlotte School of Law professor Barbara Bernier, who alleges the school and its corporate owners defrauded the federal government of more than $285 million by admitting unqualified students in order to pocket their government-issued loans. Dalton ruled that InfiLaw’s myriad problems had already been publicly disclosed in news stories and posts written on law faculty blogs before Bernier file her suit.
Cue the sad trumpet of a federal court butt-kicking.

The judge's opinion may be scathing against Infilaw and rely on an assumption that Charlotte Law was committing a massive fraud, but the point is that it was obvious and everyone knew.  The newsmedia, that fantastic fourth estate, did its job perfectly.  No million dollar paydays, here!

This of course fits nicely with the idea of the sophisticated consumer.  If - IF! - law schools were committing fraud, everyone knew it, student and third-tier professor alike.  Tweet it like Trump: No fraud! - particularly since people kept buying the product.

Bernier has time to amend the complaint, so we'll see what gets pulled out of litigation's back-alley dumpster to reserve a judge who obviously was reading the papers and knew the score.  But in the meantime, it's essential to find people who know real secrets to bring a whistleblower action. 

Law schools weren't scamming anyone, but it was widely known that they were.

Friday, April 27, 2018

Legal Practice Guide 7: Education Law Compliance 101 and the Thomas Cooley Machine

You might think the first lesson of compliance practice is... well, I don't know what you think, but it should be celebration.  Because let's face it - if you do all the work - all that legislative interpretation and proofing and hobnobbing at your boss's doorway so he knows you're still there when the clock hits 7:00 pm - you deserve a celebration.

Well, celebrate, Tommy Cool.
Western Michigan University Thomas M. Cooley Law School has come into compliance with an admissions standard that requires accredited schools to only admit candidates who appear capable of finishing law school and gaining admission to a state bar, according to public notice recently posted by the ABA’s Section of Legal Education and Admissions to the Bar.
Woo to tha hoo, WMUTMCLS!  Of course, there's a wet blanket or two ready to douse the burning fire of orgasmic compliance.
David Frakt, a Florida lawyer and frequent critic of the accreditation process, raised questions about what Cooley Law has done to reach compliance with Standard 501, saying it’s possible that as part of a settlement agreement, details about Cooley’s “concrete steps” were not included in the recent accreditation committee finding.
And you, too, might wonder about those "concrete steps" in order to actually learn how to assist educational institutions if you happen to find yourself helping correspondence schools act chill when los federales come 'round.

To that, unfortunately, I can offer no sage practice tips other than to do as Tom Cooley does.  If you're the second greatest law school in the country and you work hard at doing whatever it was they did and you file enough up-yours lawsuits, by gum, eventually you're going to be in compliance.

Wednesday, April 18, 2018

Legal Practice Guide 6: False Imprisonment, Uber, and Other Thoughts

Here's a downright frightening story of an alleged attempted kidnapping from a law professor's unfortunate and harrowing Uber trip to the Denver airport that, if as reported, absolutely should result in criminal and civil penalties beyond mere termination.

The LSTC offers its sympathies and only the following limited and generic observations, explicitly noting that it makes no factual assertions of any kind and particularly no factual allegations or suggestions regarding the professor in question:
  • The facts as presented appear to establish a prima facie false imprisonment under common law.
  • If a generic intentional tort client comes to your office, young lawyer, I imagine the case is typically much stronger with a police report filed from the scene of or immediately after the attempted kidnapping, if not a 911 call during, but sometimes making a certain airplane flight is crucial.  Furthermore, the ideal client would call an alternative transportation service instead of the one that just sent the attempted assailant.  While I've never actually met an ideal client, juries hold these things against people, particularly women, which is a truly unfair prejudice that should be corrected.
  • Is Uber liable for this sort of thing?  It surely depends on numerous factors such as prior knowledge of problems with the driver, the language of various contracts, and quirks of state law, not to mention a jury's wrath at the apparent lack of safeguards and background checks.  The LSTC expresses no opinion but looks forward to the next detailed law review article(s) explaining the various permutations and possibilities, which we have no doubt will be forthcoming from any number of fine legal scholars.
  • Speaking of jury prejudice, in a hypothetical lawsuit, do you as the evil hypothetical defendant try and inflame jurors' irrational prejudices against academia and sinecure law professors?  Again - hypothetically - if the plaintiff has written articles questioning, say, the idea of segregated women's sports, and publishing such articles is part of the regular course of her occupation, do you as the defendant intentionally bring those unpopular articles up to stoke purple-state prejudice against said professor?  Is it proper to do so?
  • Back to vicarious liability, why aren't law schools shuttling their walking intellectual capital in a private luxury service with black Lincolns and Cadillacs?  A commonplace Uber? I'd suggest suing the law school, too, but all know where that road leads, pardon the pun.
  • We have rules of evidence and rules of evidence are a very good thing with the noble (partial) goal of reducing prejudice, but in my somewhat limited experience with juries, they seem to be able to read the parties regardless of whether the damaging inadmissible material is known or not and adjust their empathetic/sympathetic responses accordingly.  For example, if your plaintiff is the type of man who would seek immediately seek publicity and appeals to secondary officials for relatively minor offenses against him or his property, or has in the past exaggerated what makes a viable claim a claim, a jury can usually sense those qualities.  Case facts that should make a jury go, "my god!" may make them, instead, say, "oh lord..." solely because of a perception - justified or baseless, but there - of someone gaming the/a system.
  • As a brief note on the First Amendment: chilling effects are real.

Friday, April 13, 2018

Legal Practice Guide 5: The First Amendment and CUNY Law

Sometimes students have to show teachers - and the wider civic society - the proper way.  Like at Parkland Stoneman Douglas high school!  You know, that gun control thing!

Now, is it shamelessly crass and inappropriate to compare the Parkland incident and aftermath with, say, CUNY Law Students protesting 4th-tier conservative speak-guru Josh Blackman?   Sure, but fuck it, the LSTC is going to do it anyway in the right honorable spirit of law school rhetoric.

Just look at these bold stallions of maximum horsepower justice, these charging mustang worms in the Big Apple:
Blackman, an associate professor at the South Texas College of Law in Houston, supported Donald Trump's decision to rescind Deferred Action for Childhood Arrivals (DACA)...But Blackman supports the DREAM Act, which would grant residency status to many of these same people.

That distinction mattered little to the student activists who crashed Blackman's event last month, calling him a racist and white supremacist. Blackman was merely "gaslighting" them, they said. They accused CUNY of giving a platform to an oppressor. They tweeted, "My existence > your opinion." They heckled Blackman, making it impossible for him to deliver his prepared remarks. A productive conversation was possible only after the activists left the room, furious that the administration had threatened to discipline them.
How dare the law school administration at a public institution permit peaceable assembly and a frank exchange of views on the legality of executive action.  How reckless!

Sometimes on my darkest days, when the first options in the liquor cabinet have been depleted and mom has taken the car elsewhere, I think these little rat-bastards deserve whatever cruel fate befalls them in the labor market - which, let's be honest, the worst seat on the Million Dollar Express still has bottle service and free cashews.  But then I read stories like this - mature, reflective takes on the First Amendment - and I think it's all going to be a-okay!

Just as the Parkland/Stoneman Douglas kids have showed us that yes, we can talk about gun control in the immediate "thoughts and prayers" period of mourning after a senseless slaughter, CUNY students are showing us the way on the First Amendment and obstreperous protests that accomplish nothing but ego-stroking.  As a Kantian maxim: If I think your position is reprehensible, you have no right to speak.  It's so simple; how didn't Thomas Jefferson think of that?  In any event, it's crucial that we lawyers incorporate this approach to free speech under the First Amendment in our daily practices.  No, judge, my existence is greater than your opinion!

Clearly, conservative-ish viewpoints are just going to clog the way of conducive learning at America's law schools.  After years of trolling law schools, The Federalist Society has finally - FINALLY - been caught red-handed for what they are.  Thanks, CUNY, for your tireless efforts.  Let's purge and jail the malcontents.

The First Amendment isn't a tricky legal concept...until you start demanding it while refusing its protection to others.  Then it becomes the sort of nuanced dance in which lawyers excel.

That's all for today.  It's Friday, April 13, so drink until you see ghosts, enroll a dead person for the tuition check, and scam on.

Friday, April 6, 2018

Legal Practice Guide 4: Class Actions and Savannah Law School

Ask any Civil Procedure student the elements of a class action and they'll probably spout something about International Shoe in a nervous, short-breathed frenzy.  Thankfully - and by design - the bar exam prep booklet fills the gaps, although most practitioners are rusty and may not recognize a good class action when they see one.

Read Rule 23 and you'll recall that the five elements of a class action are:
  • Numerosity:  are there enough people that this should be a class action?
  • Commonality:  are there common questions of law and fact to all claimants?
  • Typicality:  are the class reps' claims typical of the claims?
  • Adequate Representation:  can the class reps adequately represent the class?
  • Favorability:  is this the sort of claim that the judiciary and other influencers politically favors and can allow without vomiting?
Now let's evaluate the recent class against re: poor Savannah Law School:
Attorneys for seven Savannah Law School students and prospective students have filed a class action suit against the soon-to-close school for what they say is a civil conspiracy to deprive the students of a promised law school degree in order to advance their own business and financial interests.
The suit charges that defendants deflated their grade curve, forced students out of scholarships and into student loans, deprived students of in-person instruction by law school faculty, sold the 516 Drayton St. building, and “ultimately closed (the school) in order to financially benefit (themselves) and improve Atlanta’s John Marshall’s financial position during the fall-out over its noncompliance with ABA accreditation standards.”
Woof.  I see numerosity and adequate representation - natch, since the class reps are law students - but how in the world could there be common questions of fact or typicality?  Student A may have gotten a C in Contracts while Student B got a C-.  Each student's scholarship deprivation fraud is radically different.

And favorability?  Fuck 'em from the side.  These are sophisticated consumers.  They knew the terms of their agreement and that rich older dudes could throw some smelling salts into their legal eagle fantasies.  An education isn't a guarantee of any particular career result.  You, the student, have to do the work and network and make it happen on your own.  Stop your whining and pay your debts like an adult.  You should've looked at the materials and the data, properly evaluated risks and benefits. 

Besides, what are their damages?  They can still transfer to any number of excellent law schools for a plush reserved seat on the Million Dollar Express.  Champagne's on ice and there's a dame in every sleeper room.  The only class action you'll be caring about when you teacher-student role play. Enjoy detention!

Monday, April 2, 2018

Legal Practice Guide 3: Lizard-Brain Hyperbole, Applied to Insolvency

You'll never try a case, young'n, but one of the neatest tricks in the persuasion arsenal for an opening or closing is to take two things that don't have nothin' to do with each other and sell a beneficial connection between the two of them through emphasis and repetition.  A second great trick is to jumble a whole bunch of bad-sounding words together to break through the listener's rationality with mood.  Combine 'em and you've got rhetorical fire that could burn the village.

For example, say you're trying to convict two people at once and you want to re-characterize relatively normal lower-class teenage male friendship as a Satanic cult to rope one into the other's angsty hobbies.  You could do something like this:
[O]ften times what you've got with these offshoots that aren't formalized cults or satanic groups. But they're just kindly offshoot groups that are kindly self-styled occultists, and you usually have one guy that's kind of like the charismatic leader and then you have some followers...usually when you see people that associate that frequently, there's some sort of tie. Play basketball together, they're in athletics together, they go to school together--they have some common interest that binds them so that they spend that much time together....When you have multiple people involved in a murder like this there's got to be some thread that connects them, that holds those people together so they act together in a focused effort. And I put to you, as bizarre as it may seem to you and as unfamiliar as it may seem, this occult set of beliefs and the beliefs that Damien had and that his best friend, Jason, was exposed to all the time, that those were the set of beliefs that were the motive or the basis for causing this bizarre murder.
Shit, this is just one paragraph and they're already guilty - why?  Bizarre, occult, satanic beliefs.  This is how you win cases you shouldn't, friends.  Real lawyer work.  Justice.

Personal injury attorneys of the last decade have tried to tap into the so-called "reptile brain" of juries, put them into a shocked, primitive, protective state to generate astronomical "punishment" jury awards, but that's merely a hack's take of a larger body of work from neuroscience and persuasion 101.  

You're programmed, computer.  Beep beep. 

Now consider this letter to the editor regarding Savannah's closure:
Savannah Law School’s closing is a tragedy not only for its students, faculty and staff, but Savannah, as well. Many of the school’s students are locals, mature and nontraditional. Their education extends well beyond the sterile confines of the classroom and into our vibrant community. Now, as a result of the school’s closing, students are outraged and feel betrayed and beleaguered with uncertainty about the future.
I don’t presume to have the magic-bullet answer to these multiple tragedies. But this much is for sure. Education is more than bricks and mortar. Savannah has lost its only law school; one that produces attorneys who are committed to serve Savannah and other communities. 
Tragedy.  How...Elizabethan.  If you're not persuaded by this, you might not be a gullible hu-man, incapable of appreciating mature and nontraditional locals.  Normally, bankruptcy doesn't exactly engender passionate rhetoric, but hot damn, some people get off to anything.

This letter gets an A-, only falling short because our writer Lloyd failed to personify Savannah to drive home the idea that education is more than sterile bricks 'n' mortar.  Savannah's fertile 'n' horny, boys, and what a tragedy to leave her residents uninseminated.  

Sadly, some people just don't get the metaphor that law applicants are like a giant money shot.

Monday, March 26, 2018

Legal Practice Guide 2: The Closure of Savannah, Agency, and Legal Formalism

We continue our series of incorporating practical legal advice into the Good News about American legal education.

Savannah Law School has decided to close.  From this, there are but a few inarguable conclusions:
  • The Georgia Bar is about to get an influx of higher-end talent; and
  • Thank GOD and PROFIT that Florida Coastal and Charleston School of Law have not yet been shuttered by the malicious calumnies of paid MBA program operatives.  Had either of those two oft-assaulted schools been forced to close by now, the entire southern Atlantic coast might be devoid of accredited legal education.  This way, there are two excellent options for students to attend instead.
Preamble aside, the article - via Barry Currier - provides an excellent and informative illustration of agency law and, perhaps, a fine example of stringent adherence to procedure over substance, a triumph for the technicality and legal formalism that wins us silver medals at the legal Olympics:
Barry Currier, managing director of the ABA Section of Legal Education and Admissions to the Bar, said Thursday morning that the dean had contacted the section, which accredits law schools. “We have not, however, been formally notified of closure and, to the best of my knowledge, the school has not yet made a formal public announcement,” Currier told the ABA Journal in an emailed statement.
“If, indeed, the school intends to close,” Currier said, “we assume that those first steps will happen soon.”
Does it really mean the school is closing simply because its chief executive picks up the phone, calls the primary accrediting agency and says "hey, we're probably gonna close up?"  NO!

It would be simple enough for Currier to be like, "they notified us of their intent,"  but that would violate the law of very specific agency.  Dealing with an incorporated body you simply can't take chances that executives aren't making crank calls about the school closing because the rich life in sleepy Savannah has left these gunners bored.

A hypothetical practical example: consider a no-brainer commercial litigation case where it's obvious that the defendant company is going under.  After receiving the summons, the CEO calls opposing counsel and explains that they're going to file Chapter 7 once the paperwork is in order and probably aren't going to appear because they don't have funds to pay a lawyer.  The case is called for a status conference in federal court before the time to answer has elapsed.  What, as Plaintiff's counsel, do you do?

Ignore the phone call - it's probably a sophisticated trap!  You have to hedge in this situation.  What you have to do is draft a detailed discovery plan and a master outline for taking the testimony of adverse witnesses.  Bill like fucking mad and tell the client it's still contested.  When the case is called, ask that the judge set a firm discovery schedule and trial date.  Make sure you leave room for the motion for summary judgment you're already drafting.

Your ass-covering could be avoided if and only if your opponent produces a notarized affidavit (subject to Rule 11 and perjury law) from a corporate representative appropriately designated pursuant to the federal rules, detailing the company's intention to file a bankruptcy petition by a date certain with a wax-sealed Board resolution attached.  Otherwise, it's gung-ho to judgment. 

A phone call?  How the fuck are you going to impeach someone with a phone call?  Kudos to Currier for demanding formal notice before any sort of non-contingent, non-weasel-word answer can be provided.  While obviously the ABA isn't litigating anything against Savannah except, maybe, a breach of dreams that's better explained by external villains, it's a good lesson for litigators to make assurance doubly sure before saying anything meaningful.