Expert Opinions

At our 2nd Annual Educating Tomorrow's Lawyers Conference, we honored Bill Henderson with our Educating Tomorrow's Lawyers Award. Afterward, he delivered a keynote address (video here) focused on the significance of the role played by legal educators and the change that is coming. Talking about his own experience with a professor as a later-in-life college senior, he said that educators have the power to "flip the switch."

The ETL survey found that many law schools have been making changes in their curricula, and among the prominent areas of change are the curricula in the second and third years of law school and the introduction or expansion of course work focused on practical skills (especially the creation of new clinics and certificate programs). We need research that looks at such programs in detail to see what difference, if any, that they make.

We all know the story here: law graduates are having difficulty getting jobs after spending a good chunk of money on tuition. So, what are we to do? We must change the nature of teaching and the programs taught to address two key issues: (a) the standard methodology of law school instruction is failing (the Socratic method); and (b) whatever is being taught at law schools does not interest employers post-graduation.

Many jurisdictions around the country have implemented alternative processes that are designed to provide litigants with speedy and less expensive access to civil trials. These programs generally involve a simplified pretrial process and a shortened trial on an expedited basis. This new resource offers a summary chart of the various programs nationwide and specific details for each.

One of my primary responsibilities as Counsel to the Chief Justice of the Colorado Supreme Court is to start and maintain dialogue among Colorado's law schools, bench, and bar in an effort to find and promote commonality among their efforts to improve our state's legal profession. Naturally, then, I was interested in attending the 2013 Educating Tomorrow's Lawyers conference, which sought to connect the legal academy and members of the legal profession.

Over the past few years, IAALS has been tracking the Colorado Civil Access Pilot Project, along with numerous other rules projects across the country. These efforts are aimed at providing greater access to civil justice and at better achieving the goals of a just, speedy, and inexpensive civil justice system. This new publication explores various factors for the successful creation and implementation of new rules and processes, laying the groundwork for future developments.

The front lines of electronic discovery are moving beyond the federal courts. In a world where everyone with a smart phone is an ESI custodian, the problems of e-discovery affect all types of litigants in all types of cases. E-discovery has arrived in the state courts, and the problems there are every bit as big, and every bit as complicated, as they are in federal court. On September 19th and 20th, state court judges and e-discovery experts from around the country gathered to discuss the challenges that e-discovery poses for state courts.

In 2012, North Carolina was the only state with contested judicial elections in which voters were provided with performance evaluations of the judicial candidates—both sitting judges and challengers—on their ballot. It is fairly common for bar associations to offer ratings of sitting judges standing for retention or reelection, but this was the first instance of which IAALS is aware where a bar association also evaluated judicial challengers. Since 2012, the NCBA has also offered a voluntary, confidential evaluation program for new judges.

Part of what we do at IAALS is to convene people who have different viewpoints around a particular topic—in hopes that areas of consensus will emerge from the dialogue. We convened one such group last spring, comprised of ideologically and experientially diverse participants, on the subject of judicial selection and the attributes we want in our judges. Focused on a simple question, "What are the most important characteristics or qualities of a judge," there was remarkable unanimity around the room.

The Honoring Families Initiative has released a white paper on the role of courts and communities in separation and divorce. Designed to spark national conversation and encourage collaboration between different disciplines, the paper sets the stage for our work in the years to come. Central to the premise of the paper is that the needs of children and families effected by divorce or separation have changed drastically, the system has not been able to keep pace, and the needs of children and families are increasingly not being met.

If the current law school model is dilapidated, then it requires real structural and architectural changes. Legal education (finally) must cater to the needs of students and teaching them the knowledge, skills, and values required to serve clients. However, to reinvent legal education in a meaningful way, law schools must involve and elevate their former second-class citizens on the faculty, who already teach, and have long taught, in the way that would represent real change in law schools.

Unlimited and unmanaged discovery in civil lawsuits can be extremely expensive—and sometimes wholly out of proportion to the needs of the case. In a landmark decision issued this week, the Colorado Supreme Court put the brakes on discovery run amuk and clarified the duty of the trial court judge to manage the discovery in the case—at a minimum by considering the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).

Quality Judges has just released A Credit to the Courts: The Selection, Appointment, and Reappointment Process for Bankruptcy Judges. This study provides the first in-depth examination of the process for selecting U.S. bankruptcy judges, highlighting the similarities and differences among the regional circuits. Despite the number of cases processed in these high-volume courts, and their significance in the financial lives of individuals and businesses alike, very little was known about how the judges who preside over these courts come to be on the bench, until now.

As a former Chief Justice of the New Hampshire Supreme Court and a current member of the IAALS Board of Advisors, I commend Governor Maggie Hassan for her wisdom in establishing the Judicial Selection Commission to advise her in filling vacancies on our state’s courts. Such a commission ensures that political considerations take a back seat to qualifications, experience, and judicial potential in selecting judges.

IAALS has just released a research report entitled Family Law in Focus: A Retrospective Study of Colorado's Early Experiments with Proactive Case Processing. This report presents the results from an analysis of data from five pilot programs in four different Colorado courts that implemented proactive case management in family law cases. The data show that by providing active case management, assistance, and education to litigants, the likelihood of speedier case resolution is increased, which is the intent of CRCP 16.2.

IAALS’ new publication, A Roadmap for Review: Guide for Appraisal and Improvement of Caseflow Management in Civil Cases in U.S. District Courts, provides the tools for any interested federal judge to make a quick, initial assessment of the status of his or her civil case docket to measure how it compares to his or her colleagues as well as to courts across the nation. If further analysis and appraisal are deemed appropriate or desirable, this Guide provides the user with the tools to do so and recommendations for better practices.

In a recent blog post, Lance Soskin argued that "litigation is a multi-billion dollar industry that favors the wealthy," leaves everyone else significantly disadvantaged, and that the answer lies in the better use of alternative dispute resolution. I take a different approach. While mediation and arbitration certainly have their place, we cannot and should not abandon the system itself. What we need is a justice system that is more accessible, efficient, and accountable.

The oldest advice in the world is that the trick is not in knowing the answers—rather it is in knowing the right questions to ask. Such advice has broad application, and in the current debate about legal education, it is quite possible that the wrong questions are currently on the table. The question should not simply be: why does legal education cost so much? Rather, the question should focus on reassessing and re-measuring the value of legal education.

The National Center for State Courts has developed a new model for estimating civil litigation costs, known as the Civil Litigation Cost Model. The model is based on the amount of time lawyers expend on various litigation tasks and their billing rates, which together provide a snapshot of “typical” costs, by task, for a number of case categories. By reflecting how costs are incurred throughout the litigation process, and the variability of costs from case to case, the model provides insight into the effect of such costs on a litigant’s access to the civil justice system.

The American Bar Association's Task Force on the Future of Legal Education has been collecting comments from individuals and organizations since late last year. Educating Tomorrow's Lawyers submitted a comment focused on aligning legal education with the needs of an evolving profession, and made six recommendations.