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Vol. 54– Putting Your Money Where Your Mouth Is: Cheap & Useful CLE

A legal note from Marshal Willick about actually doing something about (part of) the problem with Continuing Legal Education – by making it cheap, making it useful to those attending, and making it meaningful to fulfilling the purpose of CLE.

Earlier notes complained about the devolving of mandatory CLE into the meaningless extraction of funds – by third party providers and the State Bar itself – without any apparent concern for fulfilling the purpose of CLE.  This note explains the little bit that this law firm can do and has done to address the problem by presenting useful CLE at no significant cost to attendees – and how much more remains to be done.

I. BACKGROUND: THE PROBLEMS WITH CLE AS WE KNOW IT

Legal Note Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 17, 2011), noted the purpose declared by the Nevada Supreme Court in its formal Rules 205-215 of the (alleged) “primary importance” of ensuring that lawyers and judges continue their legal education throughout their years of practice or sitting on the bench.

It then stepped through the various ways that declaration was, in reality, a hypocritical farce.  There are no metrics of any kind in place to ensure that those taking CLE courses learn, listen, or even attend the courses in question.  “CLE on tape” is even worse – the only thing that matters to the CLE bureaucracy is whether the check for the materials clears.

Two primary suggestions were made – that CLE providers be required to test attendees on the content of the courses, and that the Bar make public the record of all lawyers as to CLE courses taken, so that the public, shopping for lawyers, would have some idea of the currency and validity of attorneys’ education.  The note suggested that if the organized Bar was not willing to make sure that CLE actually accomplishes something, the requirement to accumulate CLE credits should be repealed as hypocrisy, designed for appearance, and not for substance.

The note concluded with the observation that “If nothing is done to improve the likelihood that “CLE” actually means that anyone actually learns anything, the silence will speak quite loudly, too.”  In the two years that have passed, the silence has been deafening.

Legal Note Vol. 36, “Judicial CLE” (March 10, 2011), turned to the topic of enhancing judicial competence – the other stated aim of the Supreme Court rules.  It noted that some jurists were simply ignorant of the current law in the very subjects on which they ruled, and that few even attended advanced-level CLE pertaining to those subjects, creating problems of both substance and appearance.

Proposed solutions to those problems included substantive testing of judges to determine competency to retain their seats, as well as the same solution as for lawyers – publication of what, if any, continuing legal education they attended.  The note also suggested that the judicial college actually start to include intensive substantive education in specialty areas for judges – say, for family court, or business court.

The response?  Silence from the judicial college, but in fairness there has been a huge increase in the number of family court judges, at least, attending advanced-level CLE courses.

In a June, 2011, update (Legal Note Vol. 40, “Other Updates to Prior Notes”), the response from the CLE Committee, and the Bar Board of Governors, was reported as “Utter inactivity.”  The note reported that there was “no appetite” by either body to actually make CLE useful, or to increase the transparency of the bench and Bar by making any potentially-useful information available to the public.

Those interested in reviewing the full text of Legal Notes Vols. 33, 36, and 40, can find them posted at https://willicklawgroup.com/full-list-of-newsletters/.

The bottom line is that the CLE Committee, the Nevada State Bar Board of Governors, and apparently the court system, just don’t give a tinker’s damn* about making CLE meaningful or useful for lawyers, judges, or the public.

[* – note for philologists and Nevada legal historians: A “tinker,” or “tinkler,” was a repairman or plumber who did metalwork in ages past.  There’s some debate over whether this phrase should be “tinker’s dam,” meaning a small dam to hold solder, made by tinkers when mending pans, rather than “tinker’s damn” – a tinker’s curse, considered of little significance because tinkers were reputed to swear habitually.

The former definition was seized on by defense counsel in Nevada as reported in 1884 in the Reno Gazette from the case of a Methodist preacher accused of profanity for using the term “tinker’s dam,” and allegedly defended on the basis that: “It isn’t profane any more to say tinker’s dam. The minister stated that a tinker’s dam was a dam made by itinerant menders of tinware on a pewter plate to contain the solder.”  That definition, indeed, goes back at least as far as 1877, in the Practical Dictionary of Mechanics by Edward Knight: “Tinker’s-dam – a wall of dough raised around a place which a plumber desires to flood with a coat of solder. The material can be but once used; being consequently thrown away as worthless.”

But with due respect to defense counsel, it appears that Mr. Knight was a poor etymologist, who fell prey to the coy Victorian preference of “dam” over “damn.”  The phrase “a tinker’s curse” (or cuss) is from even earlier, exemplifying the reputation tinkers had for habitual use of profanity. John Mactaggart’s The Scottish Gallovidian Encyclopedia, 1824, for example, predates Knight’s version: “A tinkler’s curse she did na care what she did think or say.”  There are other such early references, suggesting the short migration from “curse” to “damn,” and indicating that the proper spelling of the phrase is indeed “tinker’s damn.”]

II. FOLLOW THE MONEY

All studies known to date show no benefit whatsoever to imposition of mandatory CLE programs in terms of lawyer competency.  What we have is a time-and-money-consuming bureaucracy that falsely portrays itself as providing a service important to the public, but actually does not make lawyers any better, or provide the public any useful information; in short, it does no actual good.

Why would the organized Bar – formed for the stated purpose of serving the Bar and public – demonstrate such gross incapacity to see that the emperor has no clothes? Because, even beyond the PR value of the appearance of doing something valuable, there’s money to be made.

The Bar charges a minimum of $40 per credit hour for its on-line and remote-view CLE, and between $40 and $50 per credit for its live classes.  Multiply that by 10 mandatory credits per year, per lawyer, and some 7,000 lawyers in the State, and you have the kind of $3 Million annual cash pool that blinds a bureaucracy to such irrelevant considerations as actually doing any good for anyone involved.

Of course, private companies smell the cabbage as well.  The likes of NBI, PESI, etc., charge even more – some $55 per credit hour or more – hoping to get their piece of the action.  It’s a sweet deal – cheap bulk mailings of cheap fold-out brochures (who doesn’t throw out a couple dozen of these every week?) or even cheaper e-mail blasts, coupled with volunteer speakers paid a pittance in “honorariums,” result in a healthy profit margin.

In short, the practice of mandatory CLE, as it exists in Nevada in 2012, has all the nobility of a mafia “protection” racket; it is a shake-down exercise providing no actual service except freedom from the harm that would befall anybody who doesn’t pay.

III. “LIGHTING A SINGLE CANDLE” – WHAT WE CAN, AND WILL, DO ABOUT IT

So long as the current mandatory CLE model remains in place, the most good we can do for the most people – bench, Bar, and public – is by offering substantive CLE on useful topics that should increase actual lawyer competence, at a cost as close to zero as possible.

We are offering a series of CLE courses in family law topics designed to be as substantively useful as possible to practitioners.  And we are offering them at $30 for 3 credit hours – a price sufficient to cover the cost of drinks and snacks at the seminar, with all additional funds donated to the Legal Aid Center of Southern Nevada.

The first of these will be the popular “The Basics of Family Law Jurisdiction,” on Thursday, November 1, 2012, from 1:00-4:15 p.m., at Zenoff Hall, 601 N. Pecos Road (behind Family Court).

Covered topics will include the law and mechanics of establishing initial and modification jurisdiction for child custody, child support, divorce, property and alimony determinations, and retirement benefits division, as well as the jurisdiction of the family courts.  In addition to the written materials, attendees will receive practice-aids intended to assist in jurisdictional cases, and examination of hypothetical fact patterns.  The format will be seminar style, encouraging questions and active participation.

To register for this CLE, please contact the Willick Law Group at 702-438-4100 or see http://www.lacsn.org/images/stories/Willick_CLE_Nov_2012_Flyer.pdf.

Future topics will include: Child Custody, Relocation, Pension and Property Division, and Practical Mechanics of Family Trial Practice.

By putting on this series of CLE seminars, we intend to do what we can to elevate the practice, while also hopefully depressing the overall price-point of CLE everywhere.  It is possible that, if this is emulated by a sufficient number of others, enough of the profit motive can be taken out of the CLE racket to cause the Bar to actually look at it less as a cash cow than as a program that could and should be altered to actually serve the legitimate interests of lawyers, public, and the courts.  Hope springs eternal.

IV. CONCLUSIONS

The State Bar and its internal CLE machine long ago lost all sight of the purpose of CLE, and spawned a bureaucracy now solely concerned with its own perpetuation, expansion, and increase in revenue and budget.  As currently constituted, the Nevada mandatory CLE system does nothing measurable to improve the competence of lawyers or judges, and the Bar’s shroud of secrecy prevents the public from getting any potentially-useful information about which lawyers and judges have taken which courses.  It’s all about funding – and apparently nothing but.

In light of this dysfunctional reality, the best that can be done is to provide actually useful CLE for a very low cost, and try to coerce the system indirectly.

We hope that our seminars prove useful for all of those purposes – providing useful education, making a charitable donation to a worthwhile cause, and exerting some pressure on the CLE bureaucracy toward reform.

V. QUOTES OF THE ISSUE

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”
– Thomas Sowell

“In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control, and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”
– Jerry Pournelle (Pournelle’s Law of Bureaucracy)

“Bureaucracy destroys initiative.  There is little that bureaucrats hate more than innovation, especially innovation that produces better results than the old routines.  Improvements always make those at the top of the heap look inept.  Who enjoys appearing inept?”
– Frank Herbert, Heretics of Dune

“If you are going to sin, sin against God, not the bureaucracy.  God will forgive you but the bureaucracy won’t.”
– Hyman G. Rickover

PLEASE FEEL FREE TO COMMENT ON THIS LEGAL NOTE BY CLICKING THE LINK BELOW

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.