By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Bleaching Law

Welcome to my blog on teaching law.  I have entitled it "bleaching law". This is an obvious contraction of "blog" and "teaching".  It is also a play  on words capturing the endless struggle of a law professor to convey as neat, tidy, proper and well-starched things that are emphatically not, like the standard of review in administrative law.  All opinions are my own and do not reflect on anyone else who I work with, for or around. 

Friday
Sep212012

Email and other risks to your reputation

In my few years in private practice, a decade ago, much of our client communication was conducted through email.  And those emails were exhaustively edited and re-edited, proofed and re-proofed, every comma queried and intonation measured.  A typo was practically a firing offence -- and there were legends about such firings. (Students sometimes don't seem to believe us when we say that attention to detail is a bedrock in practicing law.)

I have slipped -- I am not resourced like a law firm and I do make typos in the trillions of emails I ship out daily (and no doubt on this blog). Still, I try.

Fast forward a decade, and in my academic capacity, I have become a practical connoisseur of inappropriate emails that would have had the sender quite properly out on the sidewalk in front of my former firm, complete with boot mark on the backside.  The emails in question are usually (although not exclusively)  from students.

I thought the time had arrived, therefore, to write the definitive Emailophiles Bestiary of Law School Email.  These are composites, and names have been removed to protect the identity of the not so innocent. 

I hasten to add that these examples constitute a small, but disproportionately tiresome percentage of the emails I receive.  The vast bulk of those notes (from students and otherwise) are normal, perfectly reasonable and appropriate.  As in so much in life, it is the 1% that consumes 90% of our energy.

The Bestiary:

1. The Surfer Dude (or Bill and Ted's Excellent Law School Adventure):  "Heya prof, I'm just rolling into town from Cancun.  Totally awesome!  Please send me the readings for the last week and tell me what you covered". 

2. The "Spwellcheckaphobe": "Dear pwofessor Furcesen, I were wundering if u culd send me the redings for lst wk and tell me whyt you covered". 

3. The Tweeter: "OMG, Pr. F, plse snd redngs fr lst wk & lect nts, LOL". 

4. The Selectively Deferential Student: "Vice Dean Forcese, I respectfully request a meeting to discuss my concerns with my inability to enroll in Prof X's class" [message to me].  "You are incompetent and don't know your job -- I am paying $14K a year and I demand that you enroll me in this class because I am a law student and you are lower in my imagined social hierarchy and can be treated in this way" [message to staff]. [Response: "As a student at the University of Ottawa Faculty of Law, we expect that you will honour the spirit of Rule 6 of the Rules of Professional Responsibility.  When you meet that standard, we will be happy to discuss with you the matter you raise.  You will appreciate that communications like that which you sent to staff do not reflect well on you, regardless of the merit of your position. I will remind you that reputation is an important commodity in the legal community that you wish to join."]

5. The Plain Un-deferential Student: "You are incompetent and don't know your job -- I am paying $14K a year and I demand that you enroll me in this class because I am a law student" [message to me. Response: See #4 above, plus a note that enrollment issues are to be addressed, politely, at the staff level in a proper exercise of the chain of command].

6. The Teachable Moment Student: "Dear [academic administrator],  That decision really sucks.  I demand that you reconsider it.  I am paying $14K a year and I deserve the decision I requested.  Respond within 24 hours or I will go to the Dean".  [My response, after this email is forwarded to me by staff: "Dear X, I appreciate that the decision in question may be a source of frustration.  It is, however, a proper implementation of our rules.  Those rules are designed, at their absolute core, to ensure equitable and fair treatment of all students.  Your request would have us depart from that standard and extend a benefit to you unavailable to anyone else.  We can and will not do that.  I must also observe that the tone of your message is imperious and discourteous. [Add in paragraph on rules of professional responsibility from student 4]."  Response from student: "Vice Dean Forcese, I apologize.  I did not intend in my message to cause offence.  It is part of the peril of email. I was overtaken with frustration and meant no disrespect."  My further response: "Thank you for reacting favourably to my comments and considering them in the light that they were intended."]

7. The Un-teachable Moment Student: Same as number 6, but response from student not a "standing down" retraction but instead even more over the top and close to aggressive.  Time for a sit down meeting and a discussion of the university's harassment policy.

8. The Incoherent Student: "So, those readings, could you, with the lectures. Just back now.  And I don't understand what you meant yesterday in class.  Could you explain?"

9. The Instant Messenger: "Professor Forcese, I was wondering if you could send me the readings from last week and indicate what you covered?" [1:00 am]  "Professor Forcese, you still haven't responded to my message and I am afraid of falling behind." [4:00 am].

10. The Good Old Buddy Student (who I have never met): "Hey Craig, How are you. Had some business out of town the other day with Bob. Could you let me know where you are in the course.  Perfect, thanks.  Have a good one." [NB, I am not generally a stickler for formalism and usually do refer to myself by my first name, but there can be an excess of informality in "first contact" that does convey an unprofessional insouciance.]

11. The Student who needs to read the online syllabus, take responsibility for their readings and turn up in class: Students 1-4 and 7-10.  [Response: "Dear X, Please note that you are responsible for the readings, as noted in the syllabus supplied on line and emailed to you.  As for what was covered in class last week, I am afraid you must rely on assistance from a classmate's notes.  In the absence of an excused absence authorized by Academic Office, you are expected to attend classes in full, as the syllabus plainly says.  Moreover, a seminar class depends on dynamic discussion and it is neither possible nor desirable that I should try to distill the substance of that discussion for someone who has absented themselves."] 

And just to be fair, because all of our email woe cannot be laid at the feet of students: 12. The Common Law Administrative Email: [14 paragraphs, single spaced in French.  12 paragraphs, single spaced in English, sometimes not all that well proofed], followed by 13. Reminder Common Law Administrative Email [same, with an additional paragraph or two] x 12,000 per term.  Response rate: poor.

We're working on solutions to 12 and 13 -- one of the perils of being big and complex is difficult communications.  And I'm really hoping not to see many more of 1-11, because they sour you on a job I truly love (especially #4-5 and 7).  And it's even worse for staff, who don't have the benefit of being able to interact with terrific students on a daily basis in the classroom. It is very easy to become jaded by our version of the "1%".

Another lesson from my days in private practice and law teaching: there are a thousand ways any decision-maker can legitimately say no to a request, and be absolutely unassailable for doing so.  And yet, an administrator who likes you, and wants to help, can envisage workable solutions and move mountains.  Same with a law prof -- I have seen professors go well, well beyond the extra mile to assist students.

In private practice, I have seen law cases won because a decision maker -- able to choose validly between a yes or a no -- said yes because he or she liked the person asking.  I shall blog on the honey and vinegar parable when time permits. 

All of this is to say, law school is a good place to start practicing the art of being respected.

And if you're worried you might accidentally be student #6, apparently some law students in the US are using a new email app: Tonecheck, described as allowing "you to do a quick once over check of your message to prevent you from accidentally saying something that you might regret. Now completely free..."

And since vice deans often see communications from the other side of the lectern, that app probably deserves to be installed on more than student computers.

Friday
Sep212012

The 12.1 Percent: Why Law Schools are to Blame for, well, Everything

It being late September, two things are on the radar: First, the anniversary of the first Occupy movement and its resonant preoccupation with the fortunes (literally) of the top 1%; second, the imminent arrival of the Law Society of Upper Canada's articling taskforce report.  That report is driven by its own percentage figure: the 12.1% of JD graduates in Ontario who were unable to secure articles by the time of publication of the LSUC placement report in 2011.  To make that number clearer, it is generated by the 214 students (of 1767) unplaced in articles at the end of March 2011.

This figure is at least in part responsible for the near constant buzz about an "articling crisis" in Ontario, especially when it is contrasted (in the same report) with the 5.8% number (81 of 1391 students) from the gilded, pre-US subprime mortgage-oopsy days of 2008.  To the extent that concerns about all that ails articling fixates on this number, that is a huge tragedy.

Over the last year, and especially in my vice dean capacity at uOttawa, I have conversed with a number of students and some members of the profession about this issue.  There is a commonplace perception that law schools are to be blame for inflated enrollment -- especially law schools that have grown (to wit, my own institution and a few others).

Probably because I am one of the Occupy movement's 1% (I think -- although you wouldn't know it from my peanut sized house), I am not tremendously impressed with this apparent groupthink.   Let me canvass some facts.

1. Jobs in the legal profession are harder to get, or are they?  The LSUC articling consultation report shows the rate of employment following call to the bar from 1995-2011.  2009 and 2010 are horrible years -- in the mid-50% range.  But the June 2011 figure is 68.6%, the highest number since 2002.  And the number in June 2012 is 65.1%.  So which is blip and which is trend?  Is it the long history of numbers in the mid-60% range (including over the last two years) or the 2009 and 2010 (post-2008 economic crisis) numbers?

2. A little perspective: Whatever the numbers, law graduates and lawyers are still an awfully privileged bunch.  There are graduates of other programs who would celebrate a post-graduation placement rate of 87.9%.  Those with teaching degrees are a case in point (68% unemployed or underemployed in 2010).  Let's call that a placement rate of 32%. 

3. There are too many law students!  Oh really?  This is a big one for me, for obvious reasons.  Let's be clear. As best as I can establish in the time available, from about 1976 until really quite recently, there were approximately 2,000 first year law students in common law programs. In 1976, the Canadian population was 22,993,000.  And so there was 1 first year law student for every 11,496 people in Canada.

According to the people who give LSAT training, in 2011, there were 2,621 first year students in common law programs.  The population of Canada in 2011 was 34,278,400.  And so, there was 1 first year law student for every 13,078 people in Canada.

Put another way, there are 1.31 times as many first year law seats now than in 1976.  And there are 1.49 more people.  The people are winning, something that might please many of those people. Well, except when they actually need to find an affordable lawyer.

So if we have too many law students now, we had WAY too many in 1976.  Boy did we misjudge it.  We probably should have slashed a few first year seats back then to get us to the ratio of law students to population we have now.

Now, it is true that the profession has changed, automated and outsourced in ways unknown in 1976.  But to say we have all the lawyers we need begs the question: why do we have 1. an aging profession and 2. an access to justice crisis in which only the very rich and the very poor (where legal aid is available) can truly access legal services.

4. Life (ambitions) will find a way:

In Jurassic Park, the supposedly sterile cloned dinosaurs mutated to form sustainable populations.  "Life will find a way," said one of the characters.  Well, using law school as the bottle neck to the profession just does the same thing.  And the "mutation" in this case is the number of Canadian students going overseas to the UK, the United States and Australia to obtain law degrees.  They then return to Canada and enter the National Committee on Accreditation process, and from there the articling pool.  The NCA is no longer quite like it was -- a place where the principal clientele were foreign trained first generation immigrants seeking accreditation.  Last year, there were something like 600 NCA students (both first generation immigrants with foreign credentials and Canadians who had gone overseas) authorized to write the bar.  That makes the NCA the biggest "law school" in the country, by a huge measure.

Let's be clear about who these people are who are going overseas: many are largely indistinguishable from the students who sit in law classes.  Maybe they had .1% lower GPAs or a personal statement that didn't catch the eye of a faculty admissions evaluator.  But at uOttawa, we receive more than 10 applications for every student in our first year class.  And for many of those 10, admission or not turns on the slenderest of differences.  (Yes candidates, those personal statements matter).  The same is almost certainly true everywhere else.  Students lucky enough to sit in any law class in the country would do well to remember that.

And this outsourcing of Canadian legal education will only continue now that the Federation of Law Societies "accedited law school" concept allows foreign schools to offer, essentially, Canadian legal education.  Sure, the students pay $40K a year, give or take a few $10K, but they get in, and then they come home.

Cutting law seats in Canada, or freezing them at that happy 1976 number, would just mean that a lot more students get turned down at home, and those people with wealth or a willingness to take on staggering loans turn to overseas purveyors of legal education. 

5. Law's not just for the lawyers.  People who go to law school don't always want to work as lawyers.  I know, academics always say this.  And lawyers never believe us -- hard to imagine after all!  But it happens to be true.  A number of people do JDs to broaden the mind, to segue into policy work, to upgrade their credentials in their current job.  I have had students who are retired admirals, serving CF officers or RCMP members, former federal ministers, doctors, engineers, human rights activists, you name it.  They don't all want to work on Bay Street.  Honest. 

So do we shut the doors to these people because of the 12.1%?  Or maybe we make them sign a solemn oath to never practice law, in case they change their mind about articling.  Oh, and the people who don't sign that oath, they have to practice law.  No career changes, ever.

So here's the thing: we are educators.  That is our mission.  We offer a form of education that is scarcer than it was in 1976, even with the increases in our class intake.  We offer an education that opens doors in a lot of different places, not just to courtrooms and nice law firm offices.  And we offer an education that is so in demand that were we to lock our doors, the very rich or the very indebted would simply stream overseas in even greater numbers. 

Those without money or debt tolerance, well, they can give up their dream. 

And meanwhile, the consumers of legal services, well, they can represent themselves when they can't find any reasonably priced lawyers.

Now that would be a crisis. Actually, come to think of it...

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