Best Practices for Legal Education

Wide receiver Odell Beckham, Jr., of the New York Giants has already passed into football legend and even popular culture for his ability to make remarkable, one-handed catches.  For some this might suggest that “OBJ,” as he is often called, has innate talent, which he certainly does.  But a little digging on the internet shows that he actually practices these catches, again and again and again, outside of games.  He may be supremely talented, but he also works at perfecting his craft.

Recently, in an excellent post on this blog, Carrie Sperling discussed some of the benefits of offering mid-term assessments in her law school classes. For her, offering mid-terms, when coupled with a “growth mindset,” helps propel students toward mastery of a given subject.  Sperling identifies at least three reasons for offering mid-term assessments: students learn first, “whether they are using the right strategies,” second, “whether they have put forth enough effort,” and third, the ways “they can change course in order to grow their intelligence before the final exam.”  I have also found these to be true as a result of my own use of mid-terms.  I could not agree more and wish to offer an additional reason why mid-term assessments are valuable in education generally, and particularly valuable in legal education, where students are seeking to develop a lasting grasp on material that will stay with them beyond the end-of-semester exam, hopefully throughout their careers, while also seeking to develop the meta-skill of “learning how to learn” in a profession that is constantly evolving.  In addition to developing both substantive knowledge as well as feedback on how they are going about acquiring that knowledge in their studying, mid-terms can also serve as an opportunity for students to engage in a particular type of practice, practice that has proven effective in developing mastery, and which is generally not available when a student is assigned a summative evaluation at the end of a semester.

Anders Ericsson is perhaps best known for being the source of Malcolm Gladwell’s “10,000 Hour Rule”, popularized in Gladwell’s “Outliers: The Story of Success”: the notion that anyone can be an expert at anything after 10,000 hours of practice.  But Ericsson responded to Gladwell’s claim by reporting that one becomes an expert not by just putting in those 10,000 hours, but, rather, putting in those 10,000 hours using a particular approach to practice.  The type of practice necessary to develop expertise is what he and others call “deliberate practice.” In their work “Peak: Secrets from the New Science of Expertise,” Ericsson and Robert Pool describe deliberate practice as encompassing the following components:

• It is challenging and gets individuals out of their comfort zone.
• It has well-defined and specific goals that “often involve[] improving some aspect of the target performance.” In other words, it is not directed, loosely, toward “vague overall improvement.”
• It requires an individual’s full attention.
• It includes opportunities for feedback and modification of efforts, first by a coach and then, with practice, by the individual, him- or herself.
• It generally is overseen by a coach, someone who has the desired knowledge base and knows how to teach mastery over the subject.
• It involves the development of effective mental models that help a person solve a particular problem; in time, those mental models strengthen, become more detailed, and their deployment becomes more habitual. (pp. 98-99)

The authors sum up the idea as follows: “Deliberate practice nearly always involves building or modifying previously acquired skills by focusing on particular aspects of those skills and working to improve them specifically; over time this step-by-step improvement will eventually lead to expert performance.”  (Id.)

Mid-terms (and lots of practice quizzes as well) help students deploy the components of deliberate practice.  In my Civil Procedure and Legal Ethics classes (large format, lecture-style classes), I have worked over the last few years to develop multiple mid-term assessments, usually involving multiple-choice questions.  At first it was a bit of a struggle.  Writing good and effective multiple-choice questions that hit the “Goldilocks Standard” is a challenge: they can’t be too hard, or too easy.  They have to be just right.  It is thus time-consuming and painstaking work.  What’s more, students did not just want exam questions, they wanted (and still want) practice exam questions too.  In order for students to really learn from the process of taking these quizzes and exams, I also wanted students to have the chance to review the questions and answers after the exam.  As a result, I could not just recycle the same exam questions each year.  Developing a repository of questions, both practice and graded, at least at first, required a good bit of work.  Over time, though, I have built up a bank of literally hundreds of multiple-choice questions in each class.  And each year, I have more practice questions to give to the students, as old graded exams become new practice quizzes, which students really appreciate.

Even though it is more work, giving students the opportunity to review the questions after they are administered helps them build towards mastery: the ultimate goal of giving them these quizzes and exams.  Moreover, the graded mid-terms themselves build on the practice questions, and I give two mid-terms each year, with the first one typically representing just ten percent of a student’s final grade.  As I write new questions for the graded exams, I often riff off of the questions in the practice quizzes, sometimes involving similar fact patterns as the practice questions, with critical facts changed that likely have an impact on the ultimate outcome of the question (e.g., changing the state of incorporation of a defendant in a civil procedure problem can sometimes wreak havoc on subject matter jurisdiction, personal jurisdiction, joinder, etc.).  This approach is, I believe, an example of deliberate practice in practice.  Students have learned how to spot the issue in one factual setting and have had to address it. When the facts change, they are challenged to not just identify the new issues in a somewhat changed factual setting but also to understand how that change can have downstream impacts on the outcome.  In addition, I can introduce more complicated problems in this way, starting from the basics, then introducing the exceptions, and finally addressing the exceptions to the exceptions, knowing that students have to crawl and then walk before they can run.  Slowly, the learning is additive.  Students learn a bit at a time, and are encouraged to review their prior quizzes and exams as often as they like to make sure the information is sinking in.  If there is some material that is challenging them, and they keep coming up short with questions that address it, they can focus in on that subject matter until they master it.  And once they do, they then can move on to new questions when the lessons from those older questions have taken hold.

Although I write my own questions, those not comfortable writing multiple-choice questions (and they can be tricky, I don’t think I’ve yet fully mastered the skill myself) can turn to commercial products for this sort of material.  In my Civil Procedure class, I have recently enlisted the help of a commercial entity, ExamSoft, that has begun to make a bank of multiple-choice practice questions available, aligned with the material in the text I use for this course, Stephen Yeazell’s “Civil Procedure” (which also contains practice, multiple-choice questions throughout).  This Law Class Feedback program does cost students money, but, for those faculty who prefer writing more traditional essay-style exams, which still certainly have a role to play in legal education, these commercial multiple-choice questions can supplement and complement the material students are asked to deal with throughout the semester, assist student learning, and build mastery through deliberate practice.  It also contains excellent data analytics that can show an instructor how the students are doing with particular questions and subject matter.

While I certainly believe this approach is helpful in large-format classes, where individualized feedback can sometimes be a challenge, this type of practice is not just reserved for multiple-choice-style questions given to students in those classes.  In seminars I teach, I also use deliberate practice, as students work throughout the semester and prepare multiple drafts of papers they will present at the end of the semester.  They then practice their final presentations of those papers until they can really deliver their material in an engaging and professional manner.  For this type of work, deliberate practice is also particularly useful, and students gain a great deal through the cultivation of their writing and public speaking skills; they also start to understand how much work a professional puts into the generation of great written work product and an impactful presentation.  (If of interest, I have written about the use of deliberate practice in my Law and Social Innovation seminar here.)

Long gone are the days (thankfully), when a student’s law school grade was determined by how he or she performed on a single exam at the end of two semesters in a year-long course.  As more and more law faculty move toward formative assessment through mid-terms, students can learn to master the material and start logging those 10,000 hours. This mastery can serve them well, and well beyond the exam, as it is critical to the development of their own professional identity as they learn substantive knowledge.  But it also teaches them to learn how to learn, a critical skill a lawyer must deploy throughout his or her career.  This type of deliberate practice is a means to an end, for sure, but also an end in itself: a process which, should they master it, can serve students well as they engage in a life and career in the ever-changing world of legal practice. We do call it “the practice of law” after all. And the more deliberate we can make that practice, the better.

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