Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1)

Last week, I wrote about “presumptive alternative dispute resolution,” which New York will be introducing (and expanding) throughout the state.  Primarily, I addressed mediation in that post. Here I want to continue on the topic of Presumptive Alternative Dispute Resolution (ADR), because the changes will be so significant and far reaching for New Yorkers.

But first, what is ADR?

“Alternative Dispute Resolution” refers to ways of managing and settling disputes without litigating them.  Because litigation is the way that so many conflicts have been (and continue to be) handled, other manners of dealing with disputes have been labeled as “alternative” methods.  The term – which includes the processes of mediation, arbitration, neutral evaluation and others – has not always been used with respect by some members of the legal community.  Nevertheless, ADR is set to become much more prominent in New York over the coming months and years.

The further adoption of ADR in the State, which will allow many parties to save time and money, is long overdue.  In the case of mediation especially, parties will have more control over the outcomes of their cases and suffer less stress.  Relationships that are so often badly damaged or destroyed during litigation (think divorce, for example) are significantly more likely to remain respectful and functional during and after mediation, which encourages disputants to share their stories, listen to each other and mutually agree on how to move forward.

A Statewide ADR Advisory Committee has issued an Interim Report and Recommendations.  Here are a few of the highlights:

  • There will be “increased training and education about court-sponsored mediation for judges, judicial administrators, court staff, advocates, parties, mediators, and the general public”;
  • Rules requiring “attorneys to become familiar with mediation and other processes, to discuss with clients both mediation and other potential alternatives to conventional litigation and to discuss ADR options with opposing counsel in good faith” will be promulgated.  [In the past, many (but by no means all) litigators have not informed potential clients about mediation and other ways to handle disputes.  If a client raises the idea of mediation, some litigators will speak of the process in disparaging terms.  Back in 2015, I shared my thinking that lawyers who failed to inform clients about mediation were committing an ethical violation of their professional obligations:                                                                                                                                                                                                                                           According to Section B of Rule 1.4 of the New York Rules of Professional Conduct, entitled “Communication,” a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa­tion.”                                                                                                                                                                                                                                                  Is it ‘reasonably necessary’ for a divorce lawyer to tell a potential client that there is another way to get a divorce without litigating in court? I think so — if that client is to know enough to make an informed decision regarding the representation.                                                                                                                                                                                                                                                It will be interesting to see how willingly attorneys deal with this responsibility in the future.]
  • Engage with and reach out to the legal community and law students concerning early mediation and other forms of ADR.  [Teaching law students, who are generally young and who of course will first be beginning their legal careers, more about ADR should go a long way toward changing our litigious culture over time.]                                                                                                                                The Interim Report has much more to say.  I expect to continue discussing it next week.

Law School on Trial Over Employment Stats of Grads

Thomas Jefferson School of Law (TJSL), an independent law school located in San Diego, California, is being sued.  The claim is that the law school inflated its employment statistics.  So, what’s new?  There have been such allegations, and cases brought before.

What’s different this time is that this case is going to trial.

According to the legal site Above the Law:

  • While many other law schools have been taken to court over issues similar to the ones presented in the Alaburda case, never before has a law school been forced to actually stand trial for allegedly inflating its employment statistics. This is historic.

As the American Bar Association Journal put it:

  • The four plaintiffs allege the school violated California law regarding unfair business practices, false advertising and consumer protection, and committed the torts of intentional fraud, negligent misrepresentation and negligence.

Judge Joel M. Pressman of the Superior Court wrote in his decision that:

  • “[The four] Plaintiffs have all stated they believed that the employment statistics in U.S. News & World Report reflected the status of graduates who either worked in a professional capacity, worked as attorneys or worked in law-related jobs.”

Pressman looked to ‘the ‘methodology’ section in U.S. News & World Report.  “It states: ‘Employed graduates includes those reported as working or pursuing graduate degrees.’”  In other words, ‘Employed graduates’ doesn’t necessary mean that the graduates are employed as lawyers (or doing law-related work).

However, even though the four plaintiffs may not have read or understood the ‘fine print’ (By the way, should we worry about future lawyers who do not read or understand the fine print?), they may still win their case against the law school.

Pressman writes in his decision that:

  • The ‘methodology’ section in U.S. News & World Report is not necessarily dispositive.
  • A reasonable consumer would not believe employment figures included any and all employment, which would render the figure meaningless in the context of a legal education. A reasonable consumer expects the employment figure to include graduates who work in law-related jobs.

The law school tried to ward off the allegations by looking to an out-of-state (out of CA, that is) case, Gomez-Jimenez v. New York Law School, arguing “that plaintiffs could have conducted a reasonable investigation to determine the relevant information regarding the employment numbers.” Pressman responded that the Gomez case is not binding on the court (because it was decided out-of-state) and, in any event, in Gomez, no one alleged that there were inflated employment figures (and so the facts of Gomez are ‘distinguishable’ from the facts in the case against TJSL).

Among TJSL’s other arguments was this one:  that the plaintiffs had considered other factors – in addition to the employment figures – when making their choices about law school; factors including cost, ABA approval and location.

Pressman answered that “plaintiffs do not need to show that the misrepresentation was the sole or predominant or decisive factor.” Rather, there is a factual question that must be considered at a trial.

I don’t know how this case will be decided.  But something that I can say is this:  at least a few law schools are nervously watching this one.

For anyone interested, I’ve also written on Should I go to law school? and The NYT on the law school debt crisis.

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All blog posts are for information purposes, and should not be considered as legal advice.





The NYT on The Law School Debt Crisis

In yesterday’s Sunday Review section of the New York Times there was an editorial, “The Law School Debt Crisis”.

The editorial – which I’ll quote here at length – begins:

In 2013, the median LSAT score of students admitted to Florida Coastal School of Law was in the bottom quarter of all test-takers nationwide. According to the test’s administrators, students with scores this low are unlikely to ever pass the bar exam.

Despite this bleak outlook, Florida Coastal charges nearly $45,000 a year in tuition, which, with living expenses, can lead to crushing amounts of debt for its students. Ninety-three percent of the school’s 2014 graduating class of 484 had debts and the average was almost $163,000 — a higher average than all but three law schools in the country. In short, most of Florida Coastal’s students are leaving law school with a degree they can’t use, bought with a debt they can’t repay.

If this sounds like a scam, that’s because it is. Florida Coastal, in Jacksonville, is one of six for-profit law schools in the country that have been vacuuming up hordes of young people, charging them outrageously high tuition and, after many of the students fail to become lawyers, sticking taxpayers with the tab for their loan defaults.

The editorial also states that:

In 2006, Congress extended the federal Direct PLUS Loan program to allow a graduate or professional student to borrow the full amount of tuition, no matter how high, and living expenses.

The consequences of this free flow of federal loans have been entirely predictable: Law schools jacked up tuition and accepted more students, even after the legal job market stalled and shrank in the wake of the recession. For years, law schools were able to obscure the poor market by refusing to publish meaningful employment information about their graduates. But in response to pressure from skeptical lawmakers and unhappy graduates, the schools began sharing the data — and it wasn’t a pretty picture. Forty-three percent of all 2013 law school graduates did not have long-term full-time legal jobs nine months after graduation, and the numbers are only getting worse.

Much can be said about the editorial, which I would encourage you to read in full. My own thoughts turn to those who are considering applying to and attending law school.

If the editorial is correct, the government has made it easier for large numbers of students to accumulate more debt than they can handle. You might think that if you can get the loans, you must be ‘a good risk’; yet, the opposite may be true. Just because the loans are available isn’t a sign that it makes sense to take them.

If the editorial is correct, law schools have taken advantage by raising tuition fees, and by being less than forthcoming about what incoming students can expect once they graduate. It is understandable to think of educational institutions in only positive terms, but don’t romanticize them. Yes, they should (and hopefully do) provide knowledge and help lead to opportunities. But it would be naïve to think that their interests and yours are the same.

This isn’t to say that the government and/or law schools are ‘bad’; rather, it should impress upon you that you’ve got to think and look out for yourself.

It takes work, but you can do a lot beforehand to get a good sense of whether becoming a lawyer would be right for you or not. An important part of the equation is money, but the considerations go far beyond that.

As I wrote quite recently, if you’re interested in law school:

Learn everything you can to make the best decisions for yourself.

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All blog posts are for information purposes, and should not be considered as legal advice.

Should I go to law school? (Part 3 of 3)

The decision to attend law school is life changing for many who do so.  You should know what you’d be getting yourself into.  Please see Part 1 and Part 2 of this post if you haven’t already read them.

Learn about what practicing attorneys really do:

Think about what areas of law might interest you, as Ms. Cohn has; and then learn what you can about them.  How does a criminal defense lawyer typically spend her day?  You can be sure it is very different than how a contract attorney spends most of his time.

What environment would you like to work in?  A small firm?  Large firm?  Government agency?  Non-profit?  Start your own practice?   Do you think that you would like to be a litigator?  Visit a courthouse and sit in on cases that are open to the public.

Ms. Cohn is fortunate in that she has a close relative who is a long time lawyer.  Though living in another part of the country, she can have the experience of reviewing documents and engaging in research for him.  Plus, that of discussing actual cases.

She is also giving a lot of thought to applying for an internship, which can be a great way to get experience.  (This will take time, and probably won’t pay much, if at all; but weigh that against learning that you are on the right path (or not), gaining knowledge and confidence, and maybe even making good contacts, and an internship makes sense to me.)

Ms. Cohn and I talked about other ways to find people to learn from as well.  With Facebook, Linkedin and other sites, you can pretty easily reach out to those doing what you’d like to know more about, just as Ms. Cohn did in contacting me, though we were strangers to one another.  It is understandable if you are nervous about taking such a step.  All I can say is that, in my experience in reaching out, many people have been happy to speak with me on the phone, or even to meet.  I, too, try to make time for those who reach out to me.  (Some people will refuse; a few may be less than pleasant; it isn’t a terrible thing.  Be courteous and respectful of the person’s time, know what you want to discuss, and don’t ask for a job.  You will probably find a good number of people who feel flattered and are willing to share information.)

I wrote earlier that the practice of law is changing.  As it turns out, Ms. Cohn’s relative who is offering to help her gain experience is a general practitioner, and has been one for decades.  From what I’ve read, there aren’t too many of those left; most lawyers by far have a specialty these days.  So, even if Ms. Cohn wanted to become a general practitioner, that option may not be realistic in today’s world.  When you speak with people, ask what they expect to see in their practice areas in five and ten years from now.

What job opportunities will be available?

Are you open to spending over (maybe a lot over) $100,000 for your law school years?  Don’t assume you’ll earn that much coming out of law school.  Every year, there are graduates who do; but, many more don’t.  Are you aware that there may be too many lawyers and not enough legal jobs?  That many law graduates who want to practice aren’t able to, and so have taken non-legal positions?  That the debt for at least some law school graduates is crushing?

Fewer people have been applying to law schools recently, because the legal job market has been tough.  That should help those who do apply; but when and how much are questions worth exploring.

Conclusion:  I would never tell anyone whether to go to law school or not.  It is a personal, and sometimes a family decision.  I hope that this post can get you thinking about important factors that may not have previously occurred to you.

Finally, I would say that students should really be committed to becoming attorneys; they should really want it.  (If you’ve read this far, maybe that’s you.)  It is not something to do on a whim, or because you don’t know what you want to do, or because one of your parents did it.  If you do it, do it for the right reasons.  Discuss it with your family.  Learn what you would be getting yourself into.  Have in mind what it will realistically cost; and, what you’ll realistically be able to earn afterward.

As for Ms. Cohn, I wouldn’t be surprised to get a call from her again – letting me know that she has been admitted to a law school’s graduating class of 2019.

As for you, please let me know whether this post has been helpful, share your comments, and tell me what you decide to do.

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All blog posts are for information purposes, and should not be considered as legal advice.

Should I go to law school? (Part 2 of 3)

Yesterday, I posted Part 1 about the question of whether to apply to and attend law school, a step that for many has enormous financial and other implications.  Part 2 continues here:

Examine your own feelings and attitudes realistically

Do you have any idea of what attending law school is like?  If your interest/excitement stems in large part from movies, TV shows or novels, your view is distorted.   Are you interested in taking the time and effort to get a more accurate picture?

Speak with lawyers and current law students.  Hear what they have to say.  I encouraged Ms. Cohn, and encourage you, to check as to whether it is possible to sit in on a few classes at a law school to get a sense of what they are like.

Consider the different strengths that various schools have:  Cardozo Law School (in Manhattan) where I went is a leader in Alternative Dispute Resolution (mediation, arbitration, negotiation), amongst other fields.  Ms. Cohn told me that she might like to practice for the government or at public-interest law – areas that I believe the City University of New York (CUNY) Law School is strong in.

Are you willing/is it possible to commute to a school?  Take a test run, and then imagine the hundreds of times you would be making the trip, which isn’t cost free either.

If you have, or were to get the grades needed for acceptance at a “top” law school, but tuition would be much more than at a less well-known institution, what would you do?  Ms. Cohn and I discussed this, and here are my personal thoughts – which if nothing else, may prompt you to do more research on the question.

I believe that graduating from a top law school can open doors in terms of getting a job.  The school’s name and perhaps the alumni network can prove to be of great value, especially perhaps, if your goal is to work at a large law firm.  (Law schools keep data, and you should be able to learn more on this from them.)

But is the education better than at a lesser-known school?  So much so that it is worth the extra money?  Just speaking for myself, I generally don’t think so, especially if money is already a concern for you.  Of course, not every school offers the same quality of education.  Due diligence on your part is required.  A school with a low tuition that offers a poor education isn’t worth much.

On the other hand, if you have a chance at that dream school, and the alternatives aren’t much less expensive, I can imagine the extra cost being well worth it to attend the ‘better’ school.

Next:  Part 3 – Learn about what practicing attorneys really do

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All blog posts are for information purposes, and should not be considered as legal advice.

Should I go to law school? (Part 1 of 3)

Over the years, many people who are/were considering law school have asked me to share my thoughts about getting a degree and practicing law.  Most recently, Melanie Malka Cohn, a woman who had read a blog post, contacted me with regard to these questions and others concerning mediation.  With her permission, I am sharing some of what we discussed, (as well as that she is 44 years old, with five children, and in line with her personal beliefs, “decided to have a family first and then pursue a career”), since it may be of interest to others as well.

I will preface this post by saying that many lawyers do wonderful things and change the world for the better through their efforts. One example that comes to mind is a professor I had while in law school, Toby Golick, a nationally recognized leader in legal services and education.  Among her other accomplishments, Professor Golick has for decades practiced and taught others to work in the areas of elder law and welfare law, serving those who would likely have no recourse without her expert assistance.

And lawyers don’t have to serve the elderly and indigent to be doing something worthwhile. Attorneys can, and do, represent all sorts or clients, responding to diverse needs in an ethical manner. Additionally, many people who leave law practice (or choose not to go into it after graduating) are still very happy to have had the education, along with the opportunities that may have come with it.

All that said, law school isn’t for everyone, and perhaps this post and the ones to follow will help you as you decide whether it is right for you.

Attending law school is, of course, a major commitment.  Generally, it takes three years to complete, and comes with large tuition fees and other costs.  The job market for attorneys is uncertain.  The nature of the practice of law is changing.  Are you contemplating a legal career?  If so, I would urge you to:

  • carefully assess your current situation (financial and otherwise);
  • examine your own feelings and attitudes realistically;
  • learn about what practicing attorneys really do; and,
  • conduct research, to the extent possible, as to what job opportunities are likely to be available upon graduating.

In other words, learn everything you can so you can make the best decisions for yourself; what is referred to in mediation as ‘informed-decision making’, a subject I’ve been blogging about.

Your current situation:

A good place to start may be to assess where you are now.  If you don’t already have a budget, it would probably be worthwhile to create one, so that you are fully aware of your incomes and expenses.  Your assets and debts may also figure into your ultimate decisions.

Look up the cost of law school tuition.  Most schools charge a pretty hefty fee.  Financial aid may be available; but it doesn’t make sense for everyone. Aid in the form of loans can lead to debt that may be difficult to repay, as the New York Times reminded us once again last week (Student Debt Is Worse Thank You Think, Oct. 7, 2015).

Ms. Cohn has a pretty good handle on these questions, and told me that she wants to find out about the City University of New York (CUNY) law school, which has a price tag that is a bargain, relatively speaking.  She’ll be attending the school’s open house to learn more.

In addition to fees, other obvious costs are for food and housing.  Would you be paying more than you do now to live at or near the school?  Would you go to restaurants more often and do less cooking – which would add to your food budget?   Check on other school-related expenses, such as for books, and less obvious ones like buying a good suit.

Where will the money come from?  How are your expenses likely to change – up or down – over the next few years?  Are you already in debt, due to undergraduate studies or for other reasons?   Could you live with your parents to save money?  Would you be willing to?  Would they?

Are you in a relationship?  Have you discussed with your partner what getting a degree involves?  Do you have children or other family members who depend on you?  The first year of law school especially takes up a lot of time; and it may well be that your partner has to pick up the slack when you’re not available.  Many parents, single and married, turn to day care, a very important service that can be pricey.

Next:  Part 2, Tomorrow:  Examining your own feelings and attitudes realistically

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All blog posts are for information purposes, and should not be considered as legal advice.