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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Let me tell you what I wish I’d known

When I was young and dreamed of glory

You have no control

Who lives, who dies, who tells, your story.

Lin-Manuel Miranda, “Who Tells Your Story”

Late last week, two women confronted U.S. Senator Jeff Flake as he was entering an elevator when the Senate was considering how to proceed on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.  These fearless women, Ana Maria Archila and Maria Gallagher, both survivors of sexual assault themselves, confronted Flake and asked him how, by effectively ignoring the testimony of Dr. Christine Blasey Ford, he could silence the stories of countless victims of sexual assault who heard in Dr. Ford someone who told a credible story, one that was all too familiar to them.  Their passionate plea seemed to have worked, at least for the time being, and convinced Flake to pressure the Senate to agree to re-open the FBI investigation into the allegations against Kavanaugh.  This was, perhaps, the most powerful and effective “elevator pitch” in the history of elevator pitches!

Senator Flake is no stranger to these sorts of confrontations.  Last year, as Congress was in the midst of passing a massive tax cut that would have ramifications on health care throughout the United States, he was approached while on a plane by activist Ady Barkan, who works with the same organization as Ms. Archila, the Center for Popular Democracy.  Barkan, who is, himself, stricken by ALS, or Lou Gehrig’s Disease, asked Flake to consider the effects of Congress’s action on the lives of millions of Americans, including his own.  What Barkan, Archila and Gallagher were able to do was tell their personal stories to an individual in power, persuasively, personally, and with great and unbridled passion.

I do not know if elected officials have faced these sorts of interactions in the past.  It is safe to assume they have.  President Lincoln was known to receive visitors at the White House from people looking for patronage jobs or mothers asking about their sons who were off at war.  But never before have we had the ability to broadcast these interactions, practically in real time, and spread them, virally, through social media.  And it is this ability that is re-aligning power, placing new tools at the disposal of lay advocates and professional advocates alike.  It is what has helped to shape the discourse and allow people to not just tell their stories, but also to pass those stories along, instantly, and throughout the world.

The ability to tell stories, to bind people together, and to help them imagine a better future and the steps necessary to bring that future to fruition is what Yuval Noah Harari calls “mythical glue.”  For Harari, this ability sets us apart from other species; indeed, it’s what makes us human.  For the late Robert Cover, storytelling and narrative shape the law and even society itself. Now that we have the ability to connect over these stories like never before in human history, we also have the power to influence society by telling powerful stories in unfiltered, unmediated ways.

Just as the law, and, in turn, society, are shaped by stories, so, too, is the legal profession founded on storytelling.  Indeed, lawyers tell stories all the time: to juries, to judges in their briefs and in court, sometimes even to the press.  Storytelling is an essential part of lawyering, and judges are susceptible to effective stories.  A poorly told story, one that has gaps, or does not resonate, is not an effective form of advocacy.  As the Supreme Court found roughly twenty years ago in the case Old Chief v. United States:

A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Lawyers, as advocates schooled in the arts of persuasion, have long told stories, but, traditionally, they have been the masters of their clients’ stories, sometimes portraying their clients in ways that the lawyers thought judges or juries might want to hear, too often describing clients as victims rather than individuals with agency, as masters of their own lives and destinies.  Legal scholarship, including Critical Race Theory and Poverty Law Theory, has embraced the notion that clients should not only control and shape their stories, but should be invited to tell them as well.

Law students too can master their own stories.  In a recent press conference in Washington, DC, organized by students of Yale Law School to protest Judge Kavanaugh’s nomination, students found their own voices, and spoke, powerfully, about what a Supreme Court with Kavanaugh as the swing vote would mean for them, their families, and millions of Americans.

Today, a lawyer does not have to control her client’s story, or the means through which it is told.  Advocates and clients have new tools at their disposal to shape and spread their own stories, but can also be the ones telling them.  Lawyers should step aside and work with clients to help them tell their own stories, their truth, in powerful and persuasive ways.

As law professors, we should look to maximize opportunities to introduce client voice and student experience directly into the pedagogy, through flipped classrooms and other methodologies—like project-based initiatives and clinical teaching—that place students and clients at the center of the educational experience.  As part of that education, students should also experiment with new tools of communication that facilitate disintermediation: that powerful phenomenon that allows the clients to speak directly to each other, to those in the halls of power and authority, to those in the broader community who might be allies, and even to adversaries.  In reality, though, our students, digital natives, are probably better at the use of these tools than their professors and have a lot to teach us about their effective use in advocacy campaigns, as the students from Marjory Stoneman Douglas High School and many young people across the country are proving.  The importance of these new means of communication in contemporary times cannot be overstated. Indeed, when the President of the United States can now send a text message to every American with a cell phone, the tools of communication have never been more powerful, and the stakes, perhaps, never higher.

Ensuring law students understand effective storytelling in legal advocacy should always be at the core of a legal education, whether explicitly or implicitly.  (I prefer making it explicit.)   What is more, placing students in positions where they can begin to experiment and work within the new media landscape, to develop competencies in these areas and empower clients to tell their own stories, should also be an essential component of legal education today and tomorrow.

In a recent piece in the Southern California Interdisciplinary Law Journal I explore some of these issues and the role of new media tools in helping to decentralize and democratize storytelling in the law.  Please read it here.  Feedback always welcome.

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Earlier in the week, Professor Margaret Moore Jackson had this post about law schools and access to justice.  This follow up post highlights some recent developments in this area and explains some of the ways in which law schools might approach embracing an access-to-justice mission.

A recently released report from the U.S. Legal Services Corporation (LSC) provides damning information on the state of the justice gap, which it appropriately calls the justice “gulf”.  The LSC’s main findings include the following:

• 70% of low-income households have experienced at least one civil legal problem in the last year;
• 70% of low-income Americans with civil legal problems reported that at least one of their problems affected them very much or severely;
• Low-income Americans with legal problems seek assistance only 20% of the time, driven by the cost of services, not knowing that their problem is of a legal nature, or not knowing where to turn for help;
• An estimated 1.7 million low-income Americans will turn to LSC-funded programs for legal help and yet more than half of these will receive only limited help or no help at all.

These figures should give the entire legal profession in general, and law schools in particular, great pause.  The access-to-justice crisis in the United States threatens to undermine our system of justice, as an adversarial system where, more and more, one side does not have representation, is not a system of justice at all.  Just as members of the legal profession have an ethical duty to ensure access to justice, so, too, do law schools have a responsibility to prepare their students to enter the profession with the mindset that we must close this justice gulf.

To these ends, on May 18, 2017, New York State’s Permanent Commission on Access to Justice held its sixth annual “Law School Access to Justice Conference” at St. John’s School of Law.  This robust conference manifests the Permanent Commission’s view that law schools have a critical role to play in closing the justice gap.  Court officials, law school faculty and administrators, and a large number of practitioners all gathered for this one-day conference to explore ways to work more closely together to help address the access-to-justice crisis plaguing the United States.  Such a conference is timely and worthwhile because law schools are in a terrific position to help close the justice gap as they educate their students to enter the profession, hopefully with an appreciation for the legal needs of all Americans and a sense that helping to close this justice gulf is the responsibility of all lawyers.

The legal profession, law schools that produce the lawyers who will join the profession, and individuals and families who would like the assistance of a lawyer all have shared interests: a desire to increase access to justice. Through this convergence of interests, these critical stakeholders can come together to advance meaningful social change that improves such access, strengthens civic engagement, and supports the rule of law. The focus of such efforts would be to develop a stronger appreciation for the role lawyers can play in society and the difference lawyers can make in furthering civic virtues.  Law schools can thus embrace an access-to-justice mission as a way of advancing not just their own interests, but those of the profession and society as a whole.

What would embracing an access-to-justice mission mean for law schools?  The cornerstones of law schools are the teaching, scholarship, and service that the faculty and staff at such institution undertake.  Should law schools embrace an access-to-justice mission, doing so would impact these three areas.  While an access-to-justice mission often permeates different divisions within a law school—like its clinical or pro bono programs—embracing an access-to-justice mission would mean working across the institution to close the justice gap, in the school’s teaching, scholarship, and service.

First, with scholarship, there is a growing body of research on the difference lawyers make in the lives of their clients.  A wonderful meta-study of recent research can be found here.  While not all of this research finds universal benefits from all legal representation, more such research, which tends to be interdisciplinary, is needed, and law school faculties should explore opportunities to work with scholars from other disciplines to assess the differences lawyers can make in the lives of their clients to help make the case for broader access to justice.  Similarly, scholars can build on such work to do cost-benefit analyses of providing government funding for free legal representation in different contexts.  Research consistently shows that providing funding to offer free lawyers to low-income clients saves local and state government millions of dollars (see example here).  Legal services lawyers help prevent eviction and homelessness, help individuals obtain stolen wages (which then make their way into local economies), and gain access to federal benefits.  By developing this research more, local and state governments can see the financial value of investing in free legal services, and legal scholars, teaming up, again, with other disciplines, can help make the case for expanding access to justice.

We can also incorporate access-to-justice issues in teaching and service as well.  While one might deal with access-to-justice questions in a class on legal ethics, the consequences of the justice gap for legal doctrine is profound in many areas of law, from constitutional law to consumer and criminal law.  We can incorporate access-to-justice questions across the curriculum quite easily, exploring, in a trans-substantive way, the extent to which the justice gap affects doctrine and practice in all areas of the law.

Similarly, service is another core component of law schools and all faculty and staff can be engaged in efforts to improve access to justice and raise the profile of access-to-justice questions by participating in pro bono efforts, talking about how students can engage in such efforts, and stressing the importance of incorporating public service into all of our students’ careers, regardless of whether they engage in public interest law per se or work in other sectors.  Since all lawyers have an ethical obligation to improve access to justice, students should learn, early on, the ways that access to justice can and should permeate everything lawyers do throughout their careers.

Law schools presently face considerable challenges, not the least of which is ensuring that their students have viable and rewarding careers once they leave the law school and embark on their professional lives.  By embracing an access-to-justice mission, law schools can possibly help make the case for expansion of funding for free legal services but also ensure that their graduates are committed to access-to-justice principles throughout their careers.   Doing so will not just help reduce the justice gap and law graduates’ career options and opportunities, it will help strengthen the role the profession and law schools play in ensuring our justice system works for everyone.

For a deeper exploration of many of these issues, see here; comments and feedback welcome.

I explore some of these issues in greater depth here; I welcome comments and feedback.

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In the aftermath of the national election, many students are looking for ways to respond to what they see as a greater need for and focus on social justice in their studies and their field work as students.  In the early 1990s, as a law student, I was honored to have been a part of a team of students, faculty, and practitioners that brought a legal action to halt the U.S. government’s detention of HIV+ Haitian refugees on the US naval base on Guantánamo Bay, Cuba, long before that site became a household name.  I have written about that experience here, and include a few practical pointers for students looking to take on similar social justice projects today.  Please share the piece if you think it helpful to any of your students.  If of interest, a full-length, law review-style treatment of these issues is also contained in a forthcoming piece in the New York Law School Law Review.

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In recent years, the late Antonin Scalia questioned whether the traditional law school education has to take three years, with the justice griping that too many upper-level classes explore fluff and are not focused on educating students in the law.  Similarly, law school critic Brian Tamanaha has also said there should be a two-tiered system of law schools: one elite track that promotes legal scholarship, and another, non-elite track, that has a program of study that transfers basic legal skills to its students and takes just two years to complete.

President Obama, highlighting ways to make law school more affordable and lower student debt burdens, joined in the chorus, opining that perhaps law school could be completed in two years.  Obama’s concerns are shared by Tamanaha: i.e., that law school is too pricey at current tuition rates and one way to provide value to students while keeping costs down is to eliminate one year of training.

At the same time that these critics from without and within the academy have argued that law schools spend too much time with their students, the practicing bar has long lamented that when law students graduate, they are not “practice ready”: their law school training was not sufficient for them to engage fully in the practice of law when they leave law school.  Moreover, going back at least over twenty years, to the American Bar Association’s MacCrate Report, law schools have been told they are not instilling in law students the skills and values essential to the practice of law.  Echoing such concerns, and weighing in on the law-school-in-two-years debate, Justice Ruth Bader Ginsburg said that two years would be fine for a law degree, but it would not teach students the craft of lawyering nor would it instill in them the values of the profession.  Similarly, I have argued elsewhere that so-called “Law and…” courses, which Scalia decried, help round out the law school education and expose students to new ways of looking at the law and their place within the legal profession.

Indeed, it is hard to square the “law schools are doing too much” argument with the “law schools are doing too little” one.  Responding to the latter argument, schools have expanded their offerings to include more experiential components and more values-based training in an effort to prepare students to serve clients and participate fully in the profession immediately  upon graduation.

In an effort to respond to the first argument, though, a number of law schools have begun to offer two-year juris doctor degrees, including all of the credits one would earn in three years into a two-year course of study.  One would think that this would mean schools are offering students a bargain, lopping off one year of tuition for the ability to graduate a year early.  Surprisingly, most schools offering a two-year JD are not reducing tuition; they are charging students three years of tuition for a two-year course of study.

Recently, however, my institution, Albany Law School, responding to the critics, like the President, who argue that law school is too expensive, has announced it will offer a two-year JD, at the cost of two years of tuition.  Like other two-year JD programs, the academic program of study is the same in terms of how many credits students must complete to earn their degree, whether they do it in two or three years, but the cost of the program is one-third less than the traditional JD.

We believe the program will appeal to prospective students who are interested in pursuing a degree on an accelerated track so that they can get back to work sooner after starting their studies and save some money while they are doing it.  We anticipate that this will attract students who are already in the working world, who are cost conscious, sensitive to losing the three years in their professional development that a traditional three-year program would cost, and hope to enhance their credentials and earning potential in as short a time as possible.

The program is being launched with a January 2017 start date.  Time will tell whether such an approach will attract students and offer them real value, both in the short and long run.

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How can a law school teach students to work in teams?  To work collaboratively?  To nurture their creativity and give them a chance to work on a cause larger than themselves?  In a recent  forthcoming article in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba.   In the piece, I explore these questions and more.

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