Last year, I watched as a law student was introduced to a lawyer volunteering at the legal clinic. The lawyer was a white man in his 60s. The student was a woman of color in her 20s, and she was wearing hijab. I happen to know that both people have hearts of gold and come to the legal clinic with a desire to help and to give their time and talents selflessly.
Nonetheless, upon being introduced, the lawyer’s first words to the law student were: “It’s nice to meet you. Are you a foreign exchange student?” The student looked confused and embarrassed as she replied, “No. I grew up here in Milwaukee.”
A similar incident happened recently when a white lawyer asked a student of color where he was born and whether he had voting privileges. Again, the student in question replied that he was born and raised in the United States.
Yet another time, a white lawyer sat down at a table with a student of color: “What can we help you with at the clinic today?” The underlying assumption was that the student must be a client.
I also remember a moment when a white lawyer worked with a Latinx student for an entire shift and remarked at the end, “You are so articulate.” Why would this be mentionable? This is a student who has a college degree, has been admitted to law school, and will have a law degree in a few years.
Congratulations to the winners of the 2020 Jenkins Honors Moot Court Competition, Jay McDivitt and Mathias Rekowski. Congratulations also go to finalists Michelle Knapp and Wynetta McIntosh. A video of the final round is available here.
This year, Jay McDivitt won the Jenkins Competition’s Ramon A. Klitzke Prize for Best Oralist, and he and teammate Mathias Rekowski won the Franz C. Eschweiler Prize for Best Brief. Kelley Roach and Ashley Rossman were awarded second-place brief, and Xavier Jenkins and Wynetta McIntosh won third place in the briefing scores among the twelve teams in the competition. Continue reading “Results of the Jenkins Honors Moot Court Competition Final Round”
This weekend the Law School hosted its first ever virtual appellate oral argument competition. The Jenkins Honors Moot Court Competition went forward virtually this weekend on the Microsoft Teams platform. The oral arguments, originally planned for the spring, had been initially canceled due to the outbreak of COVID-19. Students and judges did a fantastic job of adapting to the new format. Students who competed had a unique opportunity to practice a skill that will likely become a more regular part of legal practice. Congratulations to the competitors, and thank you to the judges who graciously offered their time.
Justin, Travis, and Griffin McElroy have built a podcast empire on being wholesome good guys. They come off to their fans as three brothers who are down-to-Earth, goofy, and will never do anything to hurt people. This has connected with podcast listeners worldwide, helping them build a massive fan base.
But at some point, businesspeople and celebrities make mistakes. For the McElroys, this mistake has come in the form of them trying to find ways to make money off the success of their podcasts. Prior to 2018, the McElroys had sold merch for their podcasts, gone on tours to do live recordings of podcasts, and had a brief TV adaptation of the podcast “My Brother, My Brother and Me” on the failed streaming platform Seeso, which was owned by NBCUniversal.
Then came the graphic novel adaptation of “The Adventure Zone,” which shot to the top of the New York Times bestseller’s list. The graphic novel, while illustrated by Casey Pietsch, features a gallery of fan art at the back of every volume. Given the relationship the McElroys have with their fans, it seems reasonable they would pay tribute to the fans and the artwork they create by including a gallery of artwork tied to the events of that volume.
If Covid were the subject of a suit, how would the decision describe my grandfather?
My grandfather recently passed away. It wasn’t Covid; not directly at least. A lifetime of kidney problems and other assorted ailments weren’t helped by the pandemic-induced lock-down. Rather than go out to eat or graze at the local grocery store buffet, as he normally would, he dined on pre-cooked meals and unsurprisingly his health suffered for it. So no, Covid didn’t kill him, but it certainly helped. In legal-speak it was more of a proximate cause.
In any law school tort class, students learn about proximate cause as it relates to negligence. One case, which is widely cited, is Palsgraf v. Long Island Railroad. In this slice of history, a remarkable and tragic chain of events took place. The plaintiff, Mrs. Palsgraf, waited for her train, at the railroad’s train station. As she waited, an employee of the train company unknowingly helped two men load explosives onto a different train. The explosives detonated, and had one of the two men been injured by that explosion this case would almost assuredly be lost to the sands of time, a simple case of negligence with a simple resolution. Instead, in the hubbub that ensued, a large scale Mrs. Palsgraf was standing near struck and injured her. The exact manner in which the scale injured her isn’t mentioned in the opinion itself.
Every law student learns about this case and its meaning. The legal rules and principles of law that the majority and dissenting opinions announced are followed to this day. But the decision doesn’t spill any ink about Mrs. Palsgraf. A terse statement of facts accompanies the majority opinion, in which Mrs. Palsgraf isn’t even mentioned by name. She is simply “Plaintiff.” Thus, she is reduced to something less than human. I thought of this case as my grandfather lay in hospice, near the end of his life. Continue reading “Palsgraf and Humanity in the Age of Covid”
When lawyers think about working with clients who have addictions, we often imagine clients who are young or middle-aged and facing legal consequences such as criminal charges for drug possession or for driving under the influence of alcohol or another drug. But not every person struggling with addictions is young, in trouble with law enforcement, or even using substances in a visible way that signals addiction to family members or professionals.
(Gratitude to Rodrigo Sanchez for assistance in compiling data on 53206.)
The Shriver Center in Chicago provides training on a particular model of community-based lawyering. They define “community lawyering” as “using legal advocacy to help achieve solutions to community-identified issues in ways that develop local leadership and institutions that can continue to exert power to effect systemic change.” The concept grew out of the older ideas of community organizing generally pioneered by Saul Alinsky’s work in 1930s and 40s Chicago, where, broadly speaking, the goal is to promote the empowerment of citizens, i.e. members of the community, to address problems and effect change. These ideas were applied to the practice of law at least as far back as 1970 in the form of a Yale Law Journal article where Stephen Wexler outlined a number of ways in which effective lawyering in an impoverished community is different from the traditional practice of law.
Whereas the traditional lawyering model sets up an adversarial dynamic between parties, community lawyering may engage alternative systems of relational power or power sharing aimed at ultimate reconciliation or compromise, founded on a recognition of common interests between parties. (See Ross Dolloff & Marc Potvin, Community Lawyering—Why Now?,37 Clearinghouse Review 136 (July–Aug. 2003)). Whereas traditional lawyering may entail simply spotting issues that can be resolved through litigation or formal legal recourse, community lawyering can approach citizen-identified problems as opportunities to engage stakeholders in a broader conversation in the hope of building authentic, trusting relationships. Whereas the traditional lawyer model is that of a litigator, negotiator of claims, and counselor to the client, the community lawyer’s focus may be to “develop inside the client population a sustainable knowledge base that allows the population to build foundations for opportunity from within,” to identify and defeat the causes of poverty. Whereas in the traditional lawyering model the attorney is the “voice” of the client before the court, in a community lawyering model, the strategy and policies are accountable to the voice of the population being served. The lawyer assists a community in identifying a structural barrier (access to economic resources, housing, sustainability, stability, employment opportunities, political voice, etc.) and then helps build capacity within the community to take action (through organizing, relationship building, advocacy, policy development, traditional case work, etc.).
Ah, yes, the Baby Lawyer™. The finished product of the intense demands of law school, crisp diploma freshly in hand, joining the fray of the courtroom or the boardroom, ready and oh-so-willing to tackle each and every problem he or she is about to face. So full of life and hope, chock full of caselaw, best practices, tidbits from internships, faculty blessings and encouragement, and an undying love for the Oxford comma. We are blindingly sure that all of our preparation will be enough as we strut into the hallowed halls of the legal profession, away from the strictly regimented last three years . . . and its safety net of office hours and a curved grading scale.
I can say with some certainty that the baby lawyer experience is relatively similar throughout the generations. Some new attorneys begin in the proverbial “mail room,” getting coffee, delivering senior attorney mail, and living in a three by three foot cubicle that they have determined to make their own with pictures of friends and motivational quotes from Target. Baby Lawyer is our name, legal research is our game, and we have embraced “other duties as assigned” as our personal motto.
Some First Year Associates (i.e. the Baby Lawyer With A Title) may have a trial by fire. They will be handed a brown accordion folder, a case of their very own.
During the off-season, there are big projects, small projects, legal research, and the expected minutiae of the practice of law. But as the sun begins to peek through the Midwest haze that is winter, all hell breaks loose.
“Oh a music festival? That sounds fun. But what do you DO every day?”
“It’s only 11 days. What do you do during the rest of the year? Vacation!?”
“I bet you get to meet all the famous people, right?”
The daily life of a music festival attorney is likely similar to your own. There are big projects, small projects, legal research, and the expected minutiae of the practice of law. I have written briefs and legal research memos with the customary headings and content, appeared in administrative court, push a not-insignificant amount of paperwork, and manage a team. The difference between practicing law to benefit a client and practicing law to benefit thousands of screaming concertgoers is complicated; my job is governed by the courts of this land and the court of public opinion, with one delivering a much swifter, and less researched, judgment in the modern age. The stakes are huge; my company is responsible for the safety of each and every guest on the festival grounds, as well as the thousands of employees operating the festival at any given time. Within this pursuit for a perfect show, I have contributed to multi-million dollar capital stage construction projects and, just a few hours prior, stood in front of a group of Milwaukee’s underserved job-seekers, recruiting hopeful employees at the Department of Workforce Development. I have researched the nuances of the Americans with Disabilities Act to better serve all festival patrons, while simultaneously approving marketing images of a (very cute) cartoon feline for our mobile marketing team. I have opined on topics from acceptable marketplace vendors to high-level sponsorships to recycling bins to golf-cart safety. I have filed and renewed trademarks, while fielding phone calls regarding worker’s compensation claims. To put it simply, what I do every day is advance the world’s largest music festival. Continue reading “A Day in the Life of a Music Festival Attorney”
Attorneys often speak of mentorship as an essential building block to a career in the legal profession.
Indeed, one of the first pieces of advice bestowed upon young attorneys is to find a mentor, cultivate that relationship, and soak up all advice like a sponge. Mentorship roundtables, “speed networking” events, and student-attorney mixers are stylish events celebrating these connections, encouraging both sides to learn, grow, and expand one’s worldview. And yes, mentorship should be important to legal practitioners across the board, from students fresh from their first briefs to attorneys with long, successful, and active careers.
But why does one need a mentor or a mentee and how does one find a perfect match? Do I click my heels together three times, whisper “Please help me,” and one will magically appear like a fairy lawmother? What if my mentor or mentee doesn’t suit me or even like me? Let’s discuss. Continue reading “The Art of Mentorship”
When I was asked if I would—together with my daughter Micaela—write a blog for the Marquette University Law School Faculty Blog, I wanted to make sure it was known I haven’t practiced law full-time in fifteen years. So, fair warning, this is not going to be a technical legal discussion.
Let’s start with a short background: I graduated from MULS in 1989. In fact, I just celebrated my thirty-year reunion (quick shout out to my classmates: You guys rock! We had the highest turnout of any reunion class!). It was wonderful catching up with old friends, some I have kept in touch with; regrettably, some I have not.
As I stood in the Zilber Forum (as I have done several times previously, more on that later), I reflected on my law school experience at Sensenbrenner Hall, and, despite feeling envious of the students who are privileged to study law in such a marvelous facility, was transported in back thirty years to the year I graduated from MULS. I remember the hope, the promise, coupled with the uncertainty and anxiety I was feeling at the time. Not to mention the excitement of my impending marriage one month later to my beautiful wife of thirty years, Ellen, whom I met while we were both studying at Marquette (she was earning her Masters in Analytical Chemistry at the time).
On April 29, 2019, I moderated a panel discussion for the State Bar of Wisconsin’s Diversity Counsel Program titled “Closing the Gender Leadership Gap.” The following statistics were shared at the program. According to a study by the American Bar Association, “A Current Glance at Women in the Law,” half of the students graduating from law school with a J.D. are women. Yet, only 22.7% of law firm partners are women, 22% of state court judges are women, and 26.4% of Fortune 500 general counsel positions are held by women. A significant barrier for women in the workplace is implicit bias. After serving on this panel, I was curious to explore how the concept of implicit bias might contribute to the gender leadership gap in the legal profession.
Implicit bias is the term that describes how the subconscious mind categorizes people. The concept was first developed by psychologists Mahzarin Banaji and Anthony Greenwald in the 1990s. Through the use of implicit association tests (“IAT”) Banaji and Greenwald evaluated the time it took for a participant to categorize concepts such as family or career with gender. The quicker the applicant could categorize concepts, the stronger the implicit association. The most frightening aspect of implicit bias is that a person may be consciously opposed to gender discrimination but may unknowingly discriminate against women due to an implicit bias that exists only in the subconscious mind.
Studies suggest that implicit bias may play a role in explaining why men are systematically preferred for positions over women. For example, a Yale study demonstrated a statistically significant preference for men in the field of science. The study involved sending a fictional resume to 100 faculty members at top universities. The only difference was that 50 fictional students were named John, while the other 50 fictional students were named Jennifer. Even though the candidates had identical experience and qualifications, faculty members were more likely to find John competent and were more likely view him as a suitable candidate for lab positions. Continue reading “Implicit Bias and the Gender Leadership Gap”