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.