Posted on by Nancy Rapoport

Why we should train law students not to complain anonymously, part 2

In an earlier post, I explained why I don’t believe that law students should file anonymous complaints. Here’s a follow-up post. According to an article on law.com, an internal investigation at the university level determined that those anonymous complaints were false. So what we have here is a situation in which a student newspaper published false accusations (which, to my knowledge, have not yet been retracted on the paper’s website, as of 4:30pm today). I see at least two problems: a student newspaper that has published something that is false (and that hasn’t been retracted), and anonymous law students who apparently gave false information to the reporters.

I clearly wasn’t in the discussions between the reporters and the students, so I don’t know if the students said something like, “I think that the professor said X.” If they actually said that “the professor said X,” without proof, that troubles me deeply. (It should trouble the reporters, too, but that’s not my focus here.) But even saying that “I think that the professor said X” is not what responsible lawyers do when making serious allegations. Responsible lawyers make sure that what they say is accurate and truthful, to the best of their ability.

As lawyers, we have certain tools: we have our brains; we have our words; and we have our reputations. Words matter to good lawyers. There is a world of difference between “I think” and “I know.” When we make representations to a court, or to opposing counsel, or to our own clients, or to our colleagues, we need to be precise and truthful. Precision and truth, in this particular situation, seem to have been left by the wayside. And imprecision and falsity should have consequences.

Those accusations have damaged a professor’s reputation, with no consequences yet for those who made the allegations. My question is: what’s the next step here? I can certainly envision a situation in which the state bar could investigate–as part of a character and fitness inquiry–the good faith of those who made the allegations, if the state bar is able to uncover who made the statements. There may be other consequences as well. Time will tell.

I became a lawyer because words matter. My word choice matters. Every time I say something, I am giving my word that what I say is as accurate and as truthful as humanly possible. And words matter in this sad situation, too.

Posted on by Nancy Rapoport · 14 Comments

Should we train law students never to complain anonymously?

I read an article today that featured allegations of discrimination against a professor. (I also have left a comment after that article, but it has not yet appeared.) I read a lot of those types of articles, most recently this one. I read these types of articles in part because I am aware of the power imbalance between faculty and students and in part because I have known some of the professors in question. Some are law professors, and the one who was the subject of today’s article is a co-author of mine. I’ve been focusing on this topic lately because I’m writing an article about law students and social media for an upcoming symposium. That article will now include something about law students and anonymous complaints.

I have no reason to doubt the sincere belief of the three anonymous law students that they were in a classroom with a professor who, to them, appeared to discriminate. We come into any social situation having been shaped by our own experiences, and I grew up in a place in which I was bullied (and occasionally physically assaulted) because of my religion. I know what scars that experience leaves.

I do have some reason to doubt the skill set of the reporters who appear only to have interviewed these three students and who may not have taken the separate step of asking other students in the course for their views. A simple “we’re writing a story that includes allegations about this course—does anyone want to speak to us?” would have been easy for these reporters to do. Maybe they did. Maybe they haven’t been burned by anonymous sources before and didn’t know that they could ask for more information from others. If they didn’t know that, then this article could be a learning opportunity for them.

But here’s the disconnect that I am facing: these are law students who are making these allegations about this law professor. In a few years, they will be lawyers. As lawyers, they will have to sign their names to their pleadings, their drafts of contracts, and any other work product that they do. They will appear in public on behalf of others, and they will have to announce their names as they represent their clients. They will be bound by ethics rules that include the obligations to be truthful to the court and to others, and to avoid making unmeritorious claims. Because they are lawyers, they likely will be asked to serve on non-profit boards, and they will have to voice their opinions, as board members, in front of their colleagues. (And as board members, they will have a fiduciary duty to speak up if they see the board going off the rails.)

How do we get people who are afraid to associate their names with their allegations to develop into lawyers who may be asked to argue in favor of controversial topics or to represent controversial people?

There’s a great scene in Season 2, Episode 5 of The West Wing (“And It’s Surely to Their Credit”), in which Sam Seaborn discovers that two of the staff have left a bouquet of dead roses with the word “BITCH” in the office of the newest lawyer in the General Counsel’s office because they didn’t appreciate her criticism of them.  Here’s the scene, which I can’t figure out how to indent as a quote:

Sam Seaborn: [Having discovered in Ainsley Hayes’[s] office a vase of dead flowers with the sign “bitch” attached to it. Sam realizes that White House Staffers Brookline and Joyce are responsible, and soon bursts into their office. White House Chief Counsel Lionel Tribbey enters behind Sam, unnoticed.]

Sam Seaborn: You know what, guys? When I write something, I sign my name. Here, I’ll show you. [grabs Joyce’s desk blotter, dashing everything on it to the floor]

Steve Joyce: SAM!

Sam Seaborn:  Do you have any idea how big a harassment suit you just exposed us to? She just… She works here. Which is more than I can say for either one of you.

[grabbing a pen, he quickly scrawls a message on the blotter as they watch. He holds it up for them to see]

Sam Seaborn: “You’re fired. S. Seaborn.”

[throws blotter down]

Mark Brookline: Sam, I don’t know who you think you are around here, but you can’t fire us.

Lionel Tribbey, White House Counsel: Ohhh… Yes. He can. Leave here, and don’t ever come back. It’s time for both of you to write your book now.

I love that scene (well, I love all of The West Wing, as well as anything else that Aaron Sorkin writes, but that’s a story for another day) because Sam makes the right point. Lawyers don’t do things anonymously. We sign our names. We may be afraid of repercussions when we do so, but we identify ourselves. Even the ethics rule (Model Rule 1.2(b)) that says that “[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities” doesn’t change the fact that our names are on those pleadings/drafts/emails.

So should we train law students that they should go on the record with their names when they have complaints about the law school in order to train them for the professional jobs that they will have? I think that we should. The three anonymous students in today’s article may sincerely fear retaliation. Law students in general now are more fearful, more anxious, and more depressed that I’ve seen in prior generations of law students, and I worry about them and their ability to thrive in a world that is nowhere near gentle. If they can’t speak up as themselves now, while they are students at a school that is trying hard to protect them from discrimination, will they be able to do their jobs as lawyers later?

These allegations are now part of this professor’s Google search, wherever he goes and whatever he does. This blog post is a way to link an alternative take on his story, and the comment that I tried to post (and which I hope eventually turns up) says, basically, that I know him, that these allegations don’t mesh with what I know of him, and that I wonder if the reporters spoke to any of the other students in the course. It also says that I hope that other students in the course will also speak up.

In my studies of corporate scandals, and in my various roles as a leader and as a manager, I’ve found that the most important question to ask is “but what if I’m wrong?” What if I’m wrong about the facts that someone is presenting to me? What if I don’t have the whole story? What if there is another side to the issue? That’s one of the reasons that, when I was an administrator, I always asked if we had all of the right people at the table when we had meetings. I never wanted to have only the people who thought the way that I did, or who were afraid to tell me when I was wrong. That is the whole point of diversity: to get the right people to the table so that we make better decisions because we’re hearing from others who see the world differently from the way that we do.

The best part of law school training is that we teach law students to ask questions—hard questions. For this particular article, these reporters didn’t ask all of the right questions. But they’re not law students. The three anonymous students are, and I hope that they are brave enough to push through their fear of retaliation when they become lawyers.

Like Sam Seaborn did, I always sign my name to my statements. And that’s why I’m speaking up now.

Update: as of 4 p.m. Pacific today (1/19/23, which is the date of the article in the student newspaper), neither my comment nor the comment of our other co-author has appeared on the newspaper’s website. Both of us have verified our emails, as the comment section requires us to do. (I’ll note that the comments section also requires a name to go along with the email.) We are both still waiting to see if and when our comments are posted.

Further update: as of 5 a.m. Pacific on 1/20/23, my comment is up, as is Veronica’s.

Posted on by Nancy Rapoport

Sarah Weddington, R.I.P.

When I saw the tweet about Sarah Weddington’s passing and read the Texas Tribune’s obituary, I thought back to the first time that I met her. She spoke at an event at the University of Nebraska, back when I was working there, and she told a classic story about how she learned to take some time for self-care (“put the oxygen mask on yourself first”). She and I started corresponding, and when I went to work at the University of Houston, I invited her to be a commencement speaker at graduation. I figured that our students would love to hear from a Texan who had argued her first Supreme Court case before she’d turned 30, who had served in the Texas Legislature and in the Carter White House, and who was a beloved teacher. Some of our students were, in fact, thrilled, but others were not, given her role in Roe v. Wade.

We had to plan for contingencies at that graduation: Would someone take a shot at her (or at me, for inviting her)? Would the protests be unruly or respectful? (The protests were respectful, with the protesting students wearing baby-feet pins on their gowns.) Sarah took it all in stride, having long become used to plainclothes protection, and — despite having been diagnosed with breast cancer shortly before she spoke at UH — she gave a touching speech that, as I recall, had nothing to do with Roe and everything to do with leadership and service. I was so happy that my parents and my spouse got to meet her that day.

We continued to stay in touch, with a few of us trying to find a home for her papers. Jeff and I toured the Women’s Museum at Fair Park (now closed) and saw the suit that she’d worn in her first Supreme Court argument. She continued to mentor people, and to speak, and to appear fearless. Appearing fearless is no easy trick, but brave people are brave not because they’re fearless but because they do what they need to do even when they’re terrified.

We’ve lost so many people in the last few years, and we lost two Texas giants this year: Sarah and Muffie Moroney. I just assume that they’re hanging out in Heaven with Ann Richards and Molly Ivins, and I miss them both. R.I.P.

Posted on by Nancy Rapoport

Score: Delta and our travel agency, infinity; Southwest, 0

So we were among the thousands of people stranded by Southwest last week, trying to make it to a long-planned milestone occasion. I awoke at 12:15am on Sunday morning to read a 11:30pm Saturday text from Southwest. That text said that our flight to Atlanta was canceled. Oh, the connecting flight after that was allegedly fine, but not the one that could get us to that connection.

Because I am one of those people who have had A-List Preferred status (along with a yearly Companion Pass, plus hundreds of thousands of points), I reached a Southwest agent who told me:

There were no flights to where we were going on Monday, no matter how we tried to route ourselves there.

There were no flights on Tuesday.

There was nothing that Southwest could do. Pretty much ever. No promises of a return flight on Saturday. No way to reroute us. Nothing.

I asked why. The agent didn’t know. He guessed “weather,” but since our destination had zero weather problems for any of the other airlines, that explanation didn’t make sense.

Who was available to help on Saturday night/Sunday morning? Our travel agent (Mary Ellen McDaniel of The Travel Authority), who had booked our milestone trip months earlier, and our Delta messaging agent (Loela Lou). Loela got us on flights on Delta (the last two seats, by the way–each way) so that we missed only one day of our trip, and the Delta experience on each leg was beyond pleasant. It was superb.

Southwest doesn’t have any arrangements with any other airline, so it couldn’t rebook us or any of the thousands upon thousands of people who, like us, had trusted Southwest and its touted customer service.

What did we get from Southwest? Not a $250 voucher, but a promise of an eventual $250 voucher. By our count, that only leaves us $3,500 short in terms of how we had to scramble to catch our flights a day later than we had planned.

I know that we’re lucky. We had saved enough to be able to afford to salvage our trip. But there are countless people whose plans were also ruined. Southwest needs to up its game significantly to regain customer loyalty. In the meantime? We “LUV” Delta these days.

Posted on by Nancy Rapoport

Here’s what I think we’re missing in terms of teaching law students how to communicate well.

I’ve written before about how we might train law students to defuse tense situations in order to improve our ability to hear each other. Last night, as I was listening to our school’s monthly Town Hall meeting, it occurred to me that we are quite good at getting students to express themselves clearly. What we’re not yet good at is helping them acquire the instinct to empathize before they communicate.

I heard some of them assume, without checking to see if their assumptions were correct, that our dean could make a decision about whether to have an in-person graduation ceremony without running through the hoops of the university’s central administration, the city, and the state, given our pandemic. (Deans are middle-management at universities, but for many law students, they’re the top of the pyramid.) And, in the middle of the meeting, I heard students talking about the stress of being distracted in Zoom-classes by the chat function or by too many emails burdening their inboxes.

These are real stresses, and our students are at their breaking point at this stage of the pandemic. What I would like to learn how to convey to them, though, is that everybody else on that call was at a breaking point, too. Just as students have caregiver responsibilities that keep them from being able to focus entirely on their studies, so do the faculty and staff members. They’re also stressed to the max, though they’re trying to mask their stress so that they can focus on the well-being of the students. I am at a loss as to how to convey to students that thinking in advance about how listeners might react to the way that they phrase their legitimate concerns will help them to communicate more effectively. Lawyers have to think empathetically when they negotiate and when they appear before adjudicators. “Know your judge” isn’t an empty mantra. But I have no idea how to convey to people who are in distress that they are also talking to people who are in distress, and I would love some suggestions. One of the comments last night was both hurtful and embarrassing to me personally, though I truly doubt that the anonymous student who made the comment intended that result. That’s the point: we’re encouraging students to tell us what they’re experiencing so that we can find ways to help them, but we have not yet found good ways to remind them that they are talking to people who are experiencing many of the same stressors that they are. Empathy might be innate, but perhaps it can be a learned skill, too. How do we help our students remember empathy?

Posted on by Nancy Rapoport

I’m so tired of snotty personal attacks in politics.

I get it.  Politics can be an ugly business.  And I wouldn’t want to be a politician these days.  Most of the time, I just ignore the vitriol on both sides of the aisle, because I have better things to do with my time than watch people call each other names.  Recently, though, a news story hit close to home because a politician attacked a friend of mine.

Having read this news story, which reported on Michelle Fiore’s comments about Roxann McCoy, all I can say is that the Roxann McCoy I know bears no resemblance to the Roxann McCoy that Councilwoman Fiore is impugning.  I’ve known Roxann for several years, and for as long as I’ve known her, I’ve been impressed by her integrity and her commitment to the public good.  She’s fought hard to protect people’s rights as the President of our local branch of the NAACP.   She’s put her own needs second, time and time again, in order to work countless hours—and serve on countless committees, and speak at public events (like this one, which is coming up on August 20 at The Mob Museum)—on behalf of our community.  I stand with Roxann.

 

Posted on by Nancy Rapoport

I’m officially “over” law reviews that are entirely student-run.

Let me start by saying that I have a cold and am thus crankier than usual.  And let me add that I am not “over” having students work as editors and as staffers on their law reviews.  Law review work trains students to read critically, to consider structure and tone, to look for valid supporting arguments, and to proofread obsessively–all good skills for great lawyers-to-be.  And peer-reviewed journals have dangers of their own.  (I was going to point my readers* to an online version of an exquisite article by one of my favorite authors–John D. Ayer, Aliens are Coming! Drain the Pool!, 88 Mich. L. Rev. 1584, 1587 n. 13 (1990)–but the Michigan Law Review hasn’t yet put that volume online.  Suffice it to say that Jack’s article does a great job of pointing out the pros and cons of peer-reviewed versus student-reviewed journals, and fn. 13 is a hoot.)

But I am on page 4 of a 33-page edit of one of my pieces by the editors of Well-Known Law Review.  (I don’t want to embarrass the editors here, even though I am irked beyond measure by their edits.)  Not only am I tempted to replicate footnotes 1 and 4 in The Common Law Origins of the Infield Fly Rule as a response to the editors’ numerous requests to add more footnotes, but I am also reminded that even the brightest and most mature of law students is not a subject-matter expert in any of the articles that his or her law review is publishing.  What would be the harm, except for the time commitment on the part of a professor, in having a professor review any proposed article (including my own articles, of course) to make sure that the proposed article isn’t bunk and review any proposed student edits before the edits get sent to the authors of accepted pieces?

I don’t want so much deference to my writing style that the editors miss any mistakes or errors of logic.  But there’s a reason that I’ve started putting clauses in my publication agreements that prohibit law review editors from changing my writing style.  Today’s experience with the proposed edits by Well Known Law Review has caused me to conclude that I need to be even more specific about what “changing my writing style” means.**

My bet is that a colleague professor could persuade student editors to be more judicious in their editorial suggestions.  All I can say is that I am now wholeheartedly sorry for any editorial comments that I made to authors while I was a law student, and that karma is a powerful thing.

And now, back to my review of those darn edits.

 

* Both of them.

** I would make an exception if the student editing my article were, for example, a former professor of English.  I don’t get the feeling that that’s the background of the person who sent me Well Known Law Review’s edits, though.

Posted on by Nancy Rapoport · 1 Comment

For those law students out there who are turning in drafts of papers–a few thoughts on professionalism.

Here are some things that law professors should tell you so that, when you’re out in the real world, senior lawyers don’t have to worry about your professionalism:

  1. Lawyers care about the written word.  So do law professors.  When you turn in a poorly proofread draft, we’ll form a not-very-flattering impression of your talent.  (We may like you, but we’ll still judge you.)  We will worry that you don’t know how to write well or, worse yet, that you do know how to write well but have decided that your time is more valuable than ours.  Making us parse your sentence fragments, your misspelled words, and a disorganized structure means that you didn’t take the time to check your work before handing it over to us. If you turned in this type of work to a lawyer at a firm, you would probably not get any more assignments, and your job would be in jeopardy.
  2. Deadlines matter.  Clients don’t care that you worked hard on some other assignment and that you’re exhausted.  They don’t care that you’ve got the flu.  Law is a service industry, and the clients who are ill-served by lawyers who miss deadlines (or who wait until the last minute to finish their work) will find other lawyers to do their work in the future.
  3. Yes, sometimes emergencies happen.  If you want us to form a better impression of your work ethic, ask for an extension before the date that something is due.  It’s best not to need an extension (see #2 above), but occasionally life interferes in some pretty awful ways.  If it looks as though you’re going to miss a deadline, the time to ask for help is well in advance.  (That’s why you don’t want to wait until the last minute to start a project–or to finish it.)  You never, ever want to be in the position of telling a senior lawyer who is counting on your work that it’s not going to get to her in time.

We want you to succeed.  The more professionally you behave in law school, the better your habits will be when you’re out in the “real world.”

Posted on by Nancy Rapoport

Customer service heaven and hell–a tale of two hotel chains (Marriott and Hilton)

Hotel Marriott Rivercenter, San Antonio Hilton Bonnet Creek, Orlando
Reachable on Twitter? @Marriott (though there was never a response to my direct message) @HiltonHotels
Responsive on Twitter? DM sent on 10/29.  First contact (a request for more info): 11/1.  My response: also on 11/1, shortly after getting the request for more info.  Still nada, as of the morning of 11/2. None needed.
Greeted at front desk? Yes, and the front desk staff was friendly. Yes, and by status, and the front desk staff member who checked me in remembered my name when I passed by later.  (Thanks, Ashley!)
Helpful bell desk? Yes. Yes, and each member of the bell staff went above and beyond, especially Ezra, who made sure in advance that I would be able to make a fast exit when I needed to make my plane.
App with room key and chat option? Yes. Yes.
Functional room? Yes, but with the Tub from Hell (see below). Yes, and with a glorious view.
Problems with the room? There was a hangtag that said that, if I wanted a rubber bath mat, I could request one.  After almost losing my footing in the Tub from Hell, I requested one early in the morning via the app.  I was told that housekeeping would leave the mat outside my door.  Nope.  Later that day, I was told that the mat was left in my room.  Nope.  When I went back to the chat option to explain that I had not received the mat, I got…crickets.  Nada.  Nothing on the chat.  Nothing on my Twitter DM. n/a
Responsiveness to chat option in the app? Not if you count follow-through or actual help. n/a
Did the hotel go the extra mile? Absolutely not.  I received half-hearted apologies for the mistakes but nothing beyond the bland, corporate “sorry.” Yes!  After I mentioned to the manager of the bell desk how helpful Ezra was, Ezra (and his manager Joseph) arranged to have chocolate-covered strawberries sent to my room—in essence, thanking me for thanking him.  Outstanding service.
Would I stay at this hotel chain again? Not bloody likely, unless I have no choice in the matter. In a heartbeat.

UPDATE on 11/7/18:  Marriott gave me 10,000 Marriott points for my trouble.