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.

Legal Practice Guide 1: Making Up Your Own Duty and Requiring New Graduates to File Employment Returns

Law schools are often accused by their least stable outputs of not teaching how to practice law.  In this new series, the LSTC illustrates how to practice law like a professional, using concepts gleaned from the good news headlines of America's legal academy.

Every decent lawyer knows that a negligence claim requires an allegation of duty and that most contracts require some sort of detriment or undertaking to provide consideration and make the contract legally binding, which is basically a synonymous way of saying the parties each take some sort of duty except we can't tilt the little pinball machines in the 1Ls heads too much or else the alarm goes off and they transfer to business school, blue balls, etc.

Anyway, imagine that you're a lawyer and your client really wants to sue someone because that someone did something naughty.  Or, shit, let's say the person's just a bad person.  Say - hypothetically - that you want to stop a blabby former mistress from telling the world about your ten-second performance and hammer-and-sickle tattoo.  No NDA?  No revenge porn?  Sorry, junior.

A lot of mediocre lawyers would take an overly simplistic approach:  if you didn't have a contract and they didn't have a duty under a common law or statutory tort, you don't have a case.

Great lawyers know better.  Great lawyers know that you're faced with a losing hand and your draft Complaint reads like nothing more than a filmy, oozing soapbox, you can still leach your client for tons of fees by making up your own duties.

And you might say, "whoa, LSTC, isn't that the job of legislatures and Supreme Courts."  Well, yeah, chowderhead, but it's not like those people are smart and can come up with ideas on their own.  They need you.

Pace Assistant Dean Jill Backer isn't just a professional-grade whiner, she knows how to make up her own duties that don't many a damn bit of sense but help her out immensely.  BUT FIRST - the foreplay:

[M]ore and more millennials intend to earn a J.D. to use the knowledge it offers in more novel, entrepreneurial venues. Most people agree that a J.D. is a flexible degree, so are we losing the forest for the trees with what we count and how we count it?

Pace, obviously, is getting screwed by not being able to fully count the spate of highly successful Wall Street bro's who graduate from there.

That's a problem, of course, because the JDs who want to practice law are obviously too busy minting their own money to return a phone call:

The real kicker of this whole reporting situation is that while the law schools are required to gather and report this data, no law student is required to provide this information to their law school. In what world does that make logical sense? As a requirement of an ABA law school approved diploma, students providing this information should be mandatory.  Without any requirements for the students to report this information, career centers nationwide have been forced to turn dwindling human capital into detectives—begging, pleading, cajoling the information out of reluctant or sometimes defiant students has become the norm. In addition, career services personnel have become expert online stalkers to obtain required data from social media.

Understandably, Backer is deeply distressed at the countless staff hours wasted checking Linkedin and Facebook, both of which are totally reliable, of course, all because a few graduates can't be bothered to write "Sullivan and Cromwell, $six figures" on an index card and mail it in.

Solution?  Public kvetching, sure, but go further:  tack on a made-up duty.

Want this glistening diploma?  Give us a kidney promise to call and tell us how you're pissing in nine months.  Nothing could plausibly support such a requirement - no one would have jurisdiction to enforce it and by its nature there could no teeth to it.  The schools are the business, the one with an interest in accreditation.  But damn these fucking kids these days for turning their hard-working career services folks into harassing stalkers instead of handing out internship applications and dusting up resumes.

As an alternative, we should just assume that a graduate who can't be bothered to turn over personal employment information to their beloved law school is simply too busy to respond and, therefore, gainfully JD-required employed with a gravy-soaked salary and a smile on their faces.  If anything, that's the one issue I take with Backer: these are obviously your most successful students; why goad them into helping you comply with the rules when you could just make shit up?

But Backer is already playing at an advanced level.  Facts against you, argue law.  Law against you, make up your own!

Scam on.