This was my first commencement ceremony (aside from Kinderfarm). I never graduated from high school, and didn’t attend graduation for my BA. Given that I was therefore counting on the cumulative emotional payoff of all those ceremonies at once, this one was pretty great. Our speakers were excellent, one of my favorite profs “hooded” me, and I did not fall over or pass out. Onward to the bar exam!

• Clinic, where we read books and do work on our computer.
• Got fingerprinted
• Test. Test of death.

Regrettably, Kaplan is treating BARBRI’s potential sale as an opportunity to sow fear, uncertainty and doubt in the minds of law students like you. It’s unfortunate they’ve chosen this sort of marketing tactic, since they know that BARBRI has changed ownership twice before with no change to the BARBRI course.

The only reason I received the email was because I signed up for information about Barbri’s free MPRE prep course last fall. I never received the information (though I did get an email saying I would soon receive the information), probably because I checked the box for an online course and there wasn’t one available? Who knows.

Anyway, I haven’t decided how I’ll be preparing for the bar exam, but this really grown-up message makes me think Kaplan or some other company will be getting my money, not Barbri.

Defamation, or Competitive Fun?

More fun than thinking about barzam prep is considering the question of whether or not Barbri’s statement about Kaplan could be libelous.

First, let’s review the elements of a defamation claim (as taught to me by Professor Nick Johnson):

1. A Statement
2. To which meaning can be ascribed which is
3. False and
4. Can be found to be defamatory
5. Of and concerning the plaintiff
6. Uttered by the defendant
7. Published to third party
8. Causing harm to the plaintiff’s reputation
9. In the plaintiff’s community.

Add on the requirement of “actual malice” (intent to do the harm), and Kaplan just might have a case.

Let’s parse it out: The statement is in the email, which, let’s assume for argument’s sake, has been sent to thousands students who are enrolled or who plan to enroll in bar exam preparation courses. The meaning is clear: Kaplan is trying to upset you, students, even though they know nothing will change in our Barbri course if we’re sold.

Falsity is one touchstone of this issue: first, is Kaplan sowing fear, uncertainty, and doubt in the minds of law students? (I, for one, am not afraid, uncertain, or doubtful as to the effects of Barbri’s sale, and I’ve read what Kaplan’s publicly saying about Barbri.) [UPDATE: thanks to a Twitter friend for directing me to the email Kaplan sent that elicited the questionable response.] Did Kaplan know “that BARBRI has changed ownership twice before with no change to the BARBRI course”? That’s a tougher proof question, but it’s the best basis of a claim, if Kaplan were to go there; the issue of fear seems more opinion-y than factual.

On the remaining elements, it’s pretty straightforward to conclude that these statements could be defamatory (harmful to Kaplan’s reputation), that they were about Kaplan (I didn’t see any other point to the message besides this message about Kaplan), that they were uttered by Barbri (published under the Barbri banner logo and from a barbri.com email address), and that they were published to third parties (law students like me).

The question of harm caused is a big one. What’s the harm? Ultimately it’s lost revenue from law students who would have paid Kaplan for bar exam prep, but for this message from Barbri about Kaplan’s unsavory marketing tactics. But is Kaplan’s reputation actually injured by this email? Perhaps not. As I mentioned, the low-blow tactics of Barbri in sending the message actually improved Kaplan’s reputation, especially relative to Barbri’s, in my mind. The question is if enough other people in Kaplan’s community (which is itself an issue: is this just consumers? Other bar exam preparation companies? Giant educational publishers?) are looking down on Kaplan for all this fear, uncertainty, and doubt it’s sowed.

Finally, actual malice is pretty apparent. I can’t conceive of a reason for sending this email except to inflict harm on Kaplan’s reputation and thereby its ability to collect test prep revenue from students in a (albeit large but) limited market.

My advice to Barbri: suck it up. Things are competitive enough out there. We students don’t need entities like you acting like or responding to playground bullies. We’ve got enough fear, uncertainty, and doubt about our futures to go around.

Posts I’ve written lately, elsewhere:

• Law Students: Make the Most of Your Winter Break Networking on Lawyerist
• Maximize Your Law School GPA on Lawyerist
• Legal Research Year in Review on Spindle Law Blog
• A New Kind of Cheeseburger on Spindle Law Blog
• Bonus! Link post to an article about me in Minnesota Lawyer on Bradley & Guzzetta Blog

I know, you can comment here on all five—that’s why this post is useful to you! Whew.

Law students are notoriously busy. But so are young lawyers. Making a habit of volunteering now will ease the transition to later professional public service. To prepare for dedicated pro bono work, law students should:

• Review current interests and hobbies to see how volunteer legal service could serve charitable causes in those areas.
• Realize that pro bono work can mean taking on individual clients or working on policy-level or organizational improvement.
• Use the resources at your school to find out what you can do to help. (Here are some examples of schools doing it right, from PSLawNet.)
• Make time to volunteer. Now.

I was recently faced with a state agency that wanted to conduct a rulemaking to help a small class of underserved people. But the issue was relatively rare and narrow, and the agency has much bigger fires to fight every day. I was told outright that the problem was one of priority, and this issue might never make it to the top of the list. When I asked what I could do to help, I was told, “Intern at our office.” This was said in jest, but it got me thinking. This is just the kind of project that I, as a future lawyer with a moral and professional commitment to volunteer legal work, could probably accomplish in about 50 hours…

Thanks to Kate Bladow for asking me to blog about pro bono this week.

I didn’t take issue with the idea that having a device that lets you check in (and thereby check out) any and everywhere blurs the line between work and non-work. It is really hard not to take just one more minute to respond to the boss, whether to get her off your back or to prove you’re “working” at 2:00 am. What’s missing to me from this argument, though, is the admission that being connected can really make you more efficient. Knowing that I can respond to a quick question or submit an assignment from anywhere is what gives me the luxury to head out on a sunny afternoon with my daughter, or enjoy the longer walk with my dog.

The problem is not the technology, the problem is will power. We’ve always had to decide how much work to leave at work, how many relationships to cordon off for nine to five or weekends only. It’s true that there is some selling out involved in buying a pricey cell phone contract and committing to a proprietary piece of hardware. But once the device is in hand, it’s not inherently evil. It just takes some self discipline to know when not to twitch at every blinking notification light or tiny vibration. At least that’s what I tell myself. And, since my supervisor fessed up to owning a cell phone so I could contact him about important developments in a case, I would guess he would agree.

I also had the chance to get a personlized tour of Spindle Law today. The site organizes the law into an easily-browseable tree of topics that drill down to specific legal rules, displaying supporting authority for the rules. David Gold, one of the site’s creators, turned me on to the site after I’d tweeted about the need for a crowdsourced, legal-rule-based research system. Voila! The site is very cool, and I especially like how it displays links to authorities on free databases (Google Scholar and Public Library of Law). But they need contributors to make the site better. Currently anyone can contribute topics, rules, authorities, and can comment on others’ contributions. If this site takes off, it will be a boon to law students and a good jumping-off point for legal research of all kinds.

I’m also contributing to a couple of Blogger blogs for the firm, which will be moving over to fancy new Wordpress digs in the near future. I you want want any tidbits of general telecommunications news, check out Telecom Attorneys. Cities and government employees might appreciate our posts on Municipal Telecommunications.

I know a lot more now about the balance of equity involved in barring or allowing claims. I get that shorter statutes of limitation are good for finality, but also for judicial efficiency: keeping stale claims out of the courts. Today I learned why statutes of limitations, and the finality that they provide defendants, are absolutely critical in the criminal context, thanks to criminal defense attorney and blogger Brian Tannebaum. On the risks of removing the Florida statute of limitations for some sex offenses:

We live in a country where person after person after person is being exonerated by DNA evidence. People who were sentenced to death, and to life. Is this the time to abolish statutes of limitations on cases where a mere accusation can result in a criminal prosecution that can take away a person’s liberty for the rest of their life?…Why we are OK letting our elected leaders convince us that finality and liberty only matter in the types of cases in which they decide?

Brian’s point is that the very real and tragic victims’ stories often prevent discussion of why we have statutes of limitations in the first place: that freedom from fear of prosecution is integral to our liberty, and liberty is a fundamental American right. Thanks, Brian, for bringing this point home.

Unfortunately, I tried to apply those make-’em-think-this-is-exciting writing skills to law school. Big mistake.

First, good academic writing is not good legal writing. Second, good writing in every other context is not good legal writing. Legal writing makes you do things like label sentences that would otherwise flow just fine from one to the next with “First,” and “Second.” Legal writing wants you to use serial commas. Legal writing puts spaces between the periods in ellipses. Legal writing forces the writer to break down every possible leap of logic or twist of mystery you might hope to leave between the lines and forces them into cold, black text. Text interrupted by citations. Text with endless footnotes. Text in short sentences. Text that is redundant. Text that never varies in form. Text that is repetitious.

My current bitterness has everything nothing to do with the fact that I’m eyeballs-deep in a paper that already has 10 pages of single-spaced 10-point endnotes, all in sparkling Bluebook format. Right about now I just want to take IRAC and CRAC by the serifs and shake them until their silly, rigid bodies fall apart.

But I guess I’ll go work on my paper.

* Now that you know how much I love legal writing, you should check out my Lawyerist post on the pros and cons of writing for a law school journal.