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.

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.

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.

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!

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.

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.

Shut Up and Make Your Money

It's difficult to comprehend the chutzpah of young lawyers, emboldened by their exponential, skyward salaries, the flaming sword of justice at their sides, all of sudden they start demanding things like making stupid-money is some sort of democracy.

Thanks, Kyle McEntee, you ungrateful bastard.

That report, titled A Way Forward: Transparency in 2018, calls for the ABA to immediately add two young lawyers to the legal education council and eventually designate two of the 15 at-large council positions for young lawyers.
...
“The deans and faculty on the Council know the cost of today’s tuition only in the sense that they can recite the price,” the report reads. “They do not understand the life impact of tuition prices of $40,000, $50,000, or even more than $60,00[0] per year have on decision making.”

It's minimal.  When you make $180,000/year, $50k in debt is a sneeze on the morning crapper.  It doesn't matter if your old or young or from the dark side of Uranus. Money's money.

And what of young lawyers wanting to join forces with the ABA?  Is that not a party admission that the ABA is looking out for the best interests of all lawyers young and old?

Beyond the addition of two young lawyers to the council, providing more data on law student borrowing, diversity, and bar pass rates will help legal educators better understand the larger trends, McEntee said.

We know the larger trends.  We make lots of money.  You human communion wafers make slightly less money.  Clients win, law firms win, justice wins, etc.  No one loses in this scenario.

So stop complaining.  Make your money, enjoy the whirlpool in the belly, and pay the generosity forward to the next morsels of food sliding down the tube of digestive love.

The Battle of North Carolina Continues

As you may recall, Charlotte Law School was driven to closure by what can only be described as fascist extremism in a late and disproportionate reaction to the completely unexpected changes in the legal and legal education sectors after the global recession of 2008.

Now the implicit Hunger Games continue; North Carolina Central - the state's only law school for black people - is in the radar of these white-collar cannibals.

Alumni leaders started suspecting N.C. Central University’s law school might wind up in trouble with the American Bar Association when they saw last summer that slightly more than a third of the 2016-17 first-year class had washed out.

Now, they’re waiting to see how the school answers the ABA’s December demand for a report on admission standards...

NCCU law’s first-year attrition rate had floated between 20 and 30 percent for four years before spiking to 34.3 percent in 2016 and 37.7 percent in 2017.  

That's it?  37%?

As the article points out, NCC uses a more aggressive grading curve compared to its local rivals Duke and UNC-Chapel Hill, where students can be relatively lazy.  At NCC, they prepare students for the real world with tough love and C-averages.

That isn't the LSTC propagandizing, either.  It's in the damned article, as is the claim that NCC is low-cost and that it's better to flunk out students quickly than keep them around for three years and "laugh[] to the bank."

The LSTC concurs, obviously.  Different strokes (no "Diff'rent Strokes" pun intended!) for different folks.  The ABA should embrace diversity in the law school community and realize that if a school wants to enroll a full brood and drown the bottom 40% in the river, they should be free to do so.

As then-student Martin Luther King once wrote, "[i]f we are not careful, our colleges will produce a group of close-minded, unscientific, illogical propagandists, consumed with immoral acts."  If the ABA is hell-bent on making North Carolina nothing more than pompous cane-wielding graduates of Duke and North Carolina, it should be prepared for a homogeneous that serves a very narrow set of interests - none of which will be criminal defendants, sub-rich civil litigants, or the cocktail party's worth of people who benefit mightily from our most sacred and lucrative legal industrial complex.

Fake News Awards 2018

Our President sees fit to publish a list of award-winning fake news stories.  Those in the law school skepticism business seem to love centralized accrediting authorities, so surely they agree with the executive up top in spirit.

It's a herculean effort and the President is to be commended.  As much as the LSTC would like to issue similar awards for fake news in legal education, we lack the time, energy, and fortitude to wade through the massive heaping pile o' bullshit that's been published in the last year telling people how bad legal education is, usually because they're false flaggin' it, selfishly wanting the perceived value of law school stock to drop so they can profit from the shortage of good lawyers.  They're selfish assholes and law schools are the good guys.  Don't forget that.

So we'll give an award out for the fakest article published in the last forty-eight hours.  Let's go with this one.  That was easy.

After enjoying an enrollment surge in the first decade of the new century, many law schools have more recently struggled mightily amid a dearth of jobs for young lawyers, dwindling student interest, worries schools were encouraging students to take on high debts they would struggle to repay, and intense criticism that many schools had been admitting students who never had the academic chops necessary to become practicing lawyers.

F is for Fake like Orson Wells wrote it.

Experts predict the contraction will come not among the largest, most prestigious institutions, but among small, private law schools that are already struggling to enroll enough students who can pass the bar.

Experts?  Fake like your step-mom's bazongas.

Some schools find themselves facing the unsavory choice of admitting more students who might not be able to pass the bar or not admitting enough tuition-paying students to keep the doors open.

Fake like the Faberge egg your Grandpappy lost in a poker game in Altoona, 1956.

Pass rates started slipping several years ago, though -- right around the time when students admitted in years with sharply fewer LSAT takers would have been graduating and passing the bar.

Fake like the first moon landing, fake.

This article is a whopping 4000 words and can't even be bothered - once - to give credit where credit is due and thank American law schools for providing the world's most affordable and efficient means of training young lawyers.  Worse, it can't even be honest and admit that even painted in the worst light possible, law school is still a winning option for the 99% of us not born with F-you money.

I've been railing against legal education's malicious detractors approaching five years now.  Trump's calls fake news are nothing new to me.  These reality-benders have been plaguing education for ages, and it's high time we had leadership in the White House and Department of Education who knew how to ignore "evidence" and let the state-boosted crony-market do its nasty thing.