ERISA and the rest of the rest of the story


I have now returned from a lovely vacation in Split and Vis Croatia.  Lots of sun, clear Adriatic sea, great food and wine, incredible ancient ruins to visit (along with Tito's vast underground guerrila tunnels from WWII).

So, back in the saddle.  Before returning to the final tidbits from my AAAL conference on the future of appellate practice, we had a great win in the First Circuit in an ERISA case.  

Moving on, everything about the future was not sunny, as you might suspect.  Speakers rolled through the statistics that basically showed fewer appeals (or at least fewer of the civil business type appeals; criminal appeals, pro se etc. are either growing or plateauing).  At the same time, more people want to be appellate lawyers.  Some states have certification programs (like Texas, California), and appellate certified wannabes are finding it difficult to get the number of arguments needed to meet the certification requirements because of this supply-demand issue.  The good part of the crowds coming to appellate practice is the increased understanding that it is in fact a speciality.  

The panel on the future of law schools included the Dean of my alma mater, Northwestern, along with the Dean of the University of Wisconsin and a Professor from Southern Illinois.  The number of applicants is down, but the rate of the decrease is slowing and LSAT takers went up in February — apparently some folks are thinking it's a good time to go to law school because it might be easier to get in.  Wisconsin and NU both shrank the size of their classes. 

The frightening part of their presentations was the universal agreement about the impact of the US News and World Report.  It's an arm's race among schools to get the best ranking possible.  It absolutely affects what schools do, and often not in a good way .  For example, one metric is money spent per student.  This keeps tuition costs up and discourages efficiency.  Also, the LSAT score for transfers, don't count, so there is some gaming on that front. 

They all said that the bar has a misunderstanding that law schools haven't changed to be more live practice based – apparently they've all developed clinics and other practical work up the yin-yang.

One trend is more customization - the student thinks that s/he is going to be, e.g. an energy lawyer early on, and then focuses on that speciality thereafter in his/her training. 

What do these folks see happening going forward?  Dean Rodriguez from NU said that the third rail is tenure – there will be continuing pressure to get rid of it.  There will be more adjuncts, less research, more technical training, and more off-site teaching.  The Wisconsin dean suggested that there will be coordination among schools and sharing courses, noting that good on-line teaching is not cheap.  Regarding President Obama's suggestion to ax the third year, they said that the issue is governed by ABA creditation.  There's a school in California that will be entirely on line – it's not trying to get ABA accreditation, but is seeking California approval.

I've already blogged on Judge Posner's contribution, but that session also presented this tidbit:  all the judges now have those dual screem monitors – and if they don't use them, their clerks due.  So think about what your brief looks like on the screen, and understand that with the dual screen, the reader has your brief on one side and then can romp off to read a cited case or whatever they want they go through it – there's likely to be this to and fro as they read.  

The session on oral argument included as panelists Justice Theis of the Illinois Supreme Court, Justice Lavin from the Illinois Appellate Court, Judge Bauer from the Seventh CIrcuit, and Justice Prosser from the Wisconsin Supreme Court.  Some kernels:

Consistent with the certification issue, they said that the problem with the death of oral argument is that newbies aren't getting any training.

Judge Bauer noted that the Seventh Circuit never tells you who your panel will be, not even a day before.  He also said that his Circuit has more oral arguments then any other – unless there's a pro se party, they give argument.  That's not true at the intermediate level — Justice Lavin candidly said that one factor affecting whether they grant argument is the stature of the lawyers.

On the old question of whether oral argument makes a difference, Judge Bauer explained how he took score one year to see.  In 5-15% of the cases, it changed his mind in some way, albeit not necessarily the result.  Asking the other judges in his circuit, the results were the same – 5-15%.

The argument, Justice Theis explained, explores the implications of the decision – that's what the court cares about — potential unintended consequences.  

Finally, one factoid that someone could make into a great sit com is that when the Illinois Supreme Court sits, they all go down to Springfield and live together for the two week session – the courthouse itself includes bedrooms for them all.