Daubert v. Merrell Dow Pharmaceuticals was a U.S. Supreme Court decision in 1993 that led to a sea change in standards for admitting expert testimony into evidence. Setting out a set of factors to be considered by courts in such decisions, it spread from questions of cutting edge science to the most mundane forms of expertise. 

The Daubert factors include consideration of whether the theory or technique can be and has been tested, whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and general acceptance in the relevant scientific community.

Many …

A study by professors at  the University of California, Berkeley, has concluded that the Law School Admission Test is "not particularly useful" in predicting an aspiring lawyer’s effectiveness in the profession after law school. 

The study included a survey that produced a list of  26 effectiveness factors with 8 umbrella categories.  They are not yet to a point of winning widespread acceptance of a substitute for the LSAT, but it’s a start.

And it would be good if they could recruit a generation of law professors who have more than a couple of years experience in real world law practice. Most law school professors have little experience outside academia other than having clerked for an appellate judge and perhaps having spent a couple of years writing briefs and toting someone else’s briefcase at a huge law firm. 

The list of "effectiveness factors" listed by categories includes:

1 : Intellectual & Cognitive
· Analysis and Reasoning
· Creativity/Innovation
· Problem Solving
· Practical Judgment

2: Research & Information Gathering
· Researching the Law
· Fact Finding
· Questioning and Interviewing

3: Communications
· Influencing and Advocating
· Writing
· Speaking
· Listening

4: Planning and Organizing
· Strategic Planning
· Organizing and Managing One’s Own Work
· Organizing and Managing Others (Staff/Colleagues)


5: Conflict Resolution
· Negotiation Skills
· Able to See the World Through the Eyes of Others

There has been a lot of discussion lately about the problem of lawyers — most but not all of whom are fairly young — who have been laid off from big law firms or whose job offers have been rescinded at such firms. It’s an interesting whipsaw of fortune compared to the unsustainably high salaries new associates were being paid at those firms last year.

Bar associations are sponsoring programs for out of work lawyers.

Some legal aid agencies are  inviting jobless lawyers to do pro bono work.

But it’s tough for agencies to house, supervise and effectively utilize a flood of big firm refugees.

There is of course a blog called unemployedlawyers.com.

The dilemma is aggravated by the fact that a great many of those young lawyers have staggering tuition debts that virtually require them to knock down high salaries that are no longer available. And those who aren’t so young are likely to have staggering mortgage payments.

So what are some of the options for bright young lawyers who have always lived on the fast track as top achievers, but suddenly find themselves unemployed?  In no particular order, here are some random ideas.

  • Keep yourself on a workday regimen. Get up, get dressed, get out. For heaven’s sake, don’t watch daytime TV.
  • Work out a lot. Maybe train for a marathon or triathlon. Long runs outside are therapeutic, and endorphins are a great antidepressants.
  • If you are relatively unemcumbered, consider taking off a few months to hike the Appalachian Trail, learn to surf, or backpack around Europe.  You aren’t getting any younger, and it’s not likely you will miss any great career opportunities between now and fall.
  • Network a couple of hours daily, unless you’re hiking the Appalachian Trail. If you spend more than a couple of hours a day, on average, networking and applying for jobs that don’t exist, it may not be psychologically healthy.
  • Avoid the temptations of alcohol, drugs, gambling, etc. Those will only take you deeper into the pit.
  • Resist moral compromises that would diminish your character and your good name. It’s OK to take a "bridge job" loading trucks or flipping burgers to stay alive. It’s not OK to get on a slippery slope regarding professional conduct in a way that diminishes your professional character and your reputation for trustworthiness. Dirt from honest labor washes off easily; sleaze doesn’t.
  • Volunteer, even in a non-legal capacity. It may help you get outside your own problems and see that a lot of people are much worse off.
  • Get another degree. An MBA program would be an obvious parking place for those who have spent most of their lives as excellent students. Or color outside the lines and get a masters in computer science, history, theology, or whatever may be your long-suppressed secret intellectual passion.
  • Be creative. Develop the artistic side of your capabilities. Learn to play a musical instrument or write a novel.
  • Consider hanging your shingle in a small town, bartering services for rent with an office landlord, attune yourself to the legal needs and financial capacity of grassroots families and small businesses.  The country song "Country Boys Will Survive" made a good point.  Even learn to barter your services for produce and firewood so you can eat and stay warm.  Maybe even big law folks can learn a few survival tips from Jay Foonberg.  I did it in an earlier recession. You can too.
  • Think like an entrepreneur.  Look for the diamonds hidden in the economic mudslide.
  • Take a look at Solo Practice University.
  • Remember that this too shall pass . . . eventually.

The blogging gurus have told me not to write blog posts like legal briefs.

  • Make posts short, with short sentences and bullet points, they say.
  • But tonight, leaving a bar association dinner, a judge’s law clerk read my name tag and had a flash of recognition.
  • In researching a question on which there was no case authority in Georgia,  she searched Westlaw for hours without success, and then Googled the question.
  • That led to a post on my blog that was, yes, written like a legal brief, complete with citations. 
  • Of course it was, since I had copied and pasted from a brief I had filed in a case.
  • She read the turgid prose in my post, looked up the cases I cited, decided my analysis was correct, and gave that work product to the judge in an order to sign.

So much for short, bullet pointed blog posts.  If I want to write a law review article and put in on my blog, complete with exhaustive legal citations, in order to share some creative legal thinking with lawyers, judges and judicial clerks out there, by golly I’ll do it.

There’s a disturbing report out of Washington that has nothing to do with truck accidents or litigation, but about which I’m writing anyway.

Reportedly the Obama administration is considering a proposal to bill veterans’ private individual insurance carriers for treatment of service-related medical conditions at Veterans Administration medical center.  Currently the VA bills insurer only for treatment that is not service related.

As reported by Fred Lucas at CNS News, veteran groups are understandably negative about the idea.  They are concerned that shifting more of the cost to private insurance will do several things:

1.      drive up premiums…

Kudos to my State Senator, Judson Hill (R-Marietta), sponsor of Senate Bill 94, which if passed would allow adult offspring to maintain coverage under their parents health insurance up to age 25, regardless of school enrollment status. In the current economy, jobs of any kind are tough for young people just out of school to find. And when they do find jobs, too often health insurance benefits are lacking. With two kids now in college, I  am eager to see this pass into law.