How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Posted on June 29, 2019 by benjmad

Sara Berman and I recently did a podcast in the ABA’s Path to Law Student’s Well-Being Podcast series. See https://www.spreaker.com/show/path-to-law-student-well-being. Anyone associated with helping applicants prepare for the Bar exam knows that the challenges they face can affect their well-being.  In the podcast, we share our experience that applicants who practice tests regularly learn not only content and skills, but also the ability to manage anxiety as they get closer to and take the exam.

            In bar preparation, students take seemingly endless sets of multiple-choice Multistate Bar Exam questions. In addition, their bar preparation companies provide opportunities to practice essays and Multistate Performance Tests (MPTs).  Applicants need to follow the Bar company’s suggestions and to get feedback on submitted work.  They should welcome critiques and suggestions, assess their own strengths and weaknesses, and improve by building on strengths and addressing weaknesses.  If allocation of time to different study methods is an issue (and it always is), applicants need to do more—not less—practice testing than reading and re-reading outlines, flash cards, and the like.  Cognitive science indicates that people retain information better when they learn a concept by applying it in a problem-based approach. See Dani Brecher Cook & Kevin Michael Klipfel, How Dow Our Students Learn?   An Outline of a Cognitive Psychological Model for Information Literacy Instruction, 55 Reference & User Services Quarterly 34 (Fall 2015).   In studying legal rules, applicants retain more by doing practice essays or MPTs because they are learning and applying rules in the context of the facts that trigger them.

            This message may be not be welcomed by an applicant who, when she writes a practices essay or MPT answer, experiences anxiety during the practice test.   Applicants often do not want to face the reality that they do not know a rule.  They falsely believe that they must have mastered a subject area before doing practice tests.   The podcast encourages applicants to practice essays and MPTs regularly and often even if they are do not feel that they have fully mastered a subject.  Using the open-book method for practicing can help someone get the process going.  The key is to break through the resistance to doing practice tests.

            If applicants get past the reluctance to embrace practice tests, they can experience reduced anxiety as they move forward.  Again, the context of our recommendation presumes that an applicant is receiving feedback from a Bar Company representative, an academic support advisor, or both.  When applicants respond to feedback in new practice test answer and see their work product improving, that reduces their anxiety.  The anxiety does not go away but remains at a reduced level—a level at which it can motivate performance rather than interfere with it.   At such a point, it is fair to say that an applicant is managing anxiety.  

            In the podcast, Ms. Berman implored law students who might be listening to apply these principles in law school.   Practicing tests—whether essays, multiple-choice, or other tests—will benefit a student.  The student of course needs to seek feedback, recognize areas in which she can improve, and be working toward that goal.   Those students who I have seen take such an approach report (1) less anxiety on graded tests and (2) that they believe they performed more effectively.  Although the days of a class hinging on one grade at the end of the semester seem to be fading, the final exam still forms a major part of student’s assessment in many courses.  Of course, ABA Standard 314 encourages formative and summative assessment and students are receiving meaningful feedback.   By doing practice tests, such as writing an answer to a potential essay, the student can apply what she has learned from feedback and seek more.

            An excellent article on practice tests concluded that such tests may improve student performance.  See Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington, Does Practice Make Perfect? An Empirical Examination of the Impact of Practice Essays, 35 Fla. St. L. Rev. 271 (Winter 2008).   The question explored in the article is whether practice essays improve performance.  The inquiry in our podcast is different.  We ask whether practice tests allow students to manage anxiety.  We entitled our podcast “Practice Makes Passing,” to counter the view that applicants must be perfect (or have completely mastered) most subjects.  Applicants need to do their best. However, they will increase their chance of passing by recognizing that practice may well be what gets them to “good enough”—i.e., a passing score.

            The ABA’s series on student well-being is an important look at a problem once viewed solely as an attorney well-being problem. Many now accept that law schools and students are an environment that can diminish or enhance student well-being, depending on choices by the school and by the students.  By learning to manage anxiety through practice tests, law students can choose to improve their well-being. Bar applicants can do the same. By spending their time wisely in bar preparation, and including a healthy dose of practice tests, the applicant will ultimately experience less anxiety and likely perform more effectively. 

Filed under: Bar Exam, Best Practices | 1 Comment »

Thriving as a Lawyer

Posted on June 21, 2019 by Paula Schaefer

The National Task Force on Lawyer Well-Being encourages law schools to develop a “Well-Being Course.” The Task Force explains that such a course can “leverage research findings from positive psychology and neuroscience” and explore the many benefits of enhanced well-being, including improved cognitive performance–in law school and legal practice.

Doug Blaze and Candice Reed developed the well-being course Thriving as a Lawyer (A Scientific Approach) and taught it for the first time in spring 2019. In creating the course, Doug Blaze drew on his 30+ years of law teaching experience (including his work as a clinician and clinic director, a Dean, and now as  Director of Tennessee Law’s Institute for Professional Leadership), while Candace Reed drew on her legal training, her practice experience, and her background in positive psychology (she holds a Master of Applied Positive Psychology from the University of Pennsylvania).

The Thriving syllabus explains why the course is needed and what students should expect to learn:

“[Lawyers’ struggle to achieve happiness] puts us at high risk for burn-out, depression, alcoholism, divorce, and even suicide. Accordingly, this course is designed to introduce law students to the scientific principles of positive psychology, while incorporating ‘hands-on learning’ through empirically validated positive interventions, which require cognitive reasoning and physical effort, encourage habitualizing behavior, involve goal-setting, and allow for self-efficacy or autonomy.”

Students are provided the following list of themes that they will study in the 2-credit course:

  1. Why are many lawyers so unhappy? How does this unhappiness or lack of thriving typically present itself? In other words, what are the symptoms of a lawyer in trouble? What are the signs someone is struggling?
  2. What are the obstacles to thriving in the law? Why is happiness in the law so elusive?
  3. Is it possible for the highest ethical behavior and client service to flourish under these circumstances? If not, should legal institutions (i.e. law schools, bar associations, law firms and corporate legal departments) encourage and promote wellbeing? If so, how?
  4. What roles do personality, emotions and character strengths play in attorney wellbeing (or a lack thereof)? Should lawyers (and their employers) take these personal characteristics into account in making career choices (e.g. type of legal job or employer, practice concentration, etc.)?
  5. What strategies/practices/habits/mindsets support lawyer wellbeing? What should lawyers do if they want to increase their own wellbeing?
  6. How can these issues be articulated in a persuasive manner to leaders of legal institutions and lawyers themselves to promote lasting, positive change?

Reed and Blaze assemble an impressive list of reading assignments for the class, including articles like these:

Thriving students are prompted to complete the VIA survey of Character Strengths, as well as several of the questionnaires (on on topics such  positive and negative affect and grit) at the University of Pennsylvania Authentic Happiness Test Center. 

Students do a presentation on a book on a well-being related topic. The book list includes a number of titles, including the following: 

  • Give and Take: Why Helping Others Drives Our Success by Adam M. Grant
  • The Pursuit of Perfect: How to Stop Chasing Perfection and Start Living a Richer, Happier Life by Tal Ben-Shahar
  • Spark: The Revolutionary New Science of Exercise and the Brain by John J. Ratey
  • The Anxious Lawyer: An 8-Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Meditation by Jeena Cho
  • Wire Your Brain for Confidence by Louisa Jewell

In its 2019 rollout, one strength of Thriving was its unique format: it was taught over two 3-day weekends. Students were required to do a lot of reading, journaling, questionnaire completion, and other work before these sessions. And during the long weekend classes, students were fully immersed in the course material with their colleagues and their professors. The course received rave reviews and will likely become a regular course offering.

 

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Today’s Law Student Wellness Programs

Posted on June 19, 2019 by Paula Schaefer

There was a time in the not-so-distance past when wellness programs in U.S. law schools primarily focused on preventing substance abuse and suicide. This programming often involved a presentation from the state’s Lawyer Assistance Program. The speaker warned about depression, substance abuse, and suicide for members of the legal profession and the availability of help. While this was important programming, it was depressing and not inspiring for most of our students.

Today, law schools, law students, and lawyers take a broader view of attorney wellness and well-being. We now recognize that students and lawyers benefit from education and opportunities to develop into happy, thriving lawyers. Law school wellness education today is not just about prevention of negative outcomes. It centers around the proactive steps law students and lawyers can take to improve every dimension of their lives.

The ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL) formed the National Task Force on Lawyer Well-Being to address attorney and law student wellness. In its report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (“Task Force Report”), the Task Force explains that there are six different aspects of lawyer well-being:

  • Social. Attorneys should work to develop “a sense of connection, belonging, and a well-developed support network while also contributing to our groups and communities.”
  • Occupational. The Task Force Report references the need to cultivate personal satisfaction and growth in our work. It also notes the importance of financial stability.
  • Physical. In the area of physical health, the Task Force recommends “regular physical activity, proper diet and nutrition, sufficient sleep, and recovery; minimizing the use of addictive substances. Seeking help for physical health when needed.”
  • Emotional. The Task Force Report encourages lawyers to seek support from professionals when they are struggling emotionally. It also emphasizes the importance of “developing the ability to identify and manage our own emotions to support mental health, achieve goals, and inform decision-making.”
  • Intellectual. An attorney focused on the intellectual dimension of wellness engages in “continuous learning and the pursuit of creative or intellectually challenging activities that foster ongoing development.”
  • Spiritual. The Task Force Report explains that the goal in this area is “developing a sense of meaningfulness and purpose in all aspects of life.”

The Task Force makes a number of specific recommendations for law schools. The suggestions include the following:

  • Create Best Practices for Detecting and Assisting Students Experiencing Psychological Distress.
  • Assess Law School Practices and Offer Faculty Education on Promoting Well-Being in the Classroom.
  • Empower Students to Help Fellow Students in Need.
  • Include Well-Being Topics in Courses on Professional Responsibility.
  • Commit Resources for Onsite Professional Counselors.
  • Facilitate a Confidential Recovery Network.
  • Provide Education Opportunities on Well-Being Related Topics.
  • Discourage Alcohol-Centered Social Events.
  • Conduct Anonymous Surveys Relating to Student Well-Being.

In subsequent posts, this blog will consider some examples of the wellness programs, classes, and initiatives that law schools have instituted to address these issues and other areas of need.

 

Filed under: Best Practices, Uncategorized | Tagged: , , , , , | 1 Comment »

More Thoughts on the Post-Millenial Generation of Students Arriving in Law School

Posted on September 7, 2018 by Ben Bratman

In two thoughtful posts from last month, here and here, Shailini Jandial George and then Andi Curcio and Sara Berman offered specific and practical suggestions of ways that we as legal educators can reach the post-millenial generation of students through our teaching. These posts bring to mind Professor Jean M. Twenge’s recently published book iGen: Why Today’s Super-Connected Kids Are Growing Up Less Rebellious, More Tolerant, Less Happy—and Completely Unprepared for Adulthood.  Twenge is probably the pre-eminent generational researcher in this country, and her empirical findings reported in the book have profound implications for legal education. What’s more, those implications are here now. Twenge defines the post-millenial “iGen” (sometimes referred to as Generation Z) as those born between 1995 and 2012, meaning the oldest among them are approaching their mid 20s—the average student age at most American law schools. In Twenge’s words, “[t]hey grew up with cell phones, had an Instagram page before they started high school, and do not remember a time before the internet. They are different from any generation that came before them.”

One concerning and challenging implication for legal education relates to the role law schools should play in inculcating basic norms of professional behavior, especially those of importance to interpersonal interaction. Given that they have spent an enormous percentage of time during their formative years on social media and elsewhere in the virtual world, most of today’s law students (those in their early to mid 20s, at least) have far less interpersonal experience than previous generations had at the same age. Speaking more broadly, as Twenge’s research reveals, they have largely avoided or deferred grown-up responsibilities that previous generations were tackling often in their teens. Much of Twenge’s research focused on high school and college students, considering such responsibilities as learning to drive, moving out of the house, and gaining financial independence. Still, as we teach and mentor law students in their early to mid 20s, we must consider what other grown up responsibilities and behaviors that we expect of legal professionals can no longer be taken for granted.

In a recent survey conducted by the Institute for the Advancement of the American Legal System (IAALS), a wide array of legal employers ranked the legal skills and professional competencies and characteristics that they believe new lawyers most need to succeed. (The study’s results are reported here. There is also a detailed accounting of the results and an explanation of the study’s role within IAALS’s broader project in the summer 2018 edition of The Bar Examiner, pp. 17-26.) The results revealed that legal employers value foundational characteristics and competencies much more than they do foundational legal skills. Among the top 20: Arrive on time for meetings, appointments, and hearings; Treat others with courtesy and respect; Listen attentively and respectfully; Promptly respond to inquiries and requests; and Exhibit tact and diplomacy. The only specific legal skill that reached the top 20 was legal research.

If we in legal education have been presuming that our arriving 1Ls possess these basic types of competencies, or at least understand their importance, I am not at all sure that we can do so any longer. The visceral reaction for so many of us, no doubt, is that it is not the job of a law school to teach students these and other very basic norms of interpersonal relations for professionals. Imagine some variation of “they should have learned that in college or high school or from their parents” or “they’ll learn the hard way in their first summer legal job.” Given legal education’s obligation to the profession that it serves, we ought to move past those mindsets. I recognize that many in legal education have done so, and I recognize that many law schools have developed programming or courses on different aspects of developing a professional identity. But professional identity, at least as it was discussed in the Carnegie Foundation’s Educating Lawyers, relates more to appreciating one’s role as a legal professional in society more broadly. It takes on a moral component. That remains important. What I raise here, however, is more behavioral and foundational: Meet deadlines, arrive on time, respond to inquiries promptly, be tactful and diplomatic with others, etc., etc.

In my 1L Legal Analysis & Writing course, I seek to instill professional behavioral norms through various course policies, all explicitly stated in my syllabus, concerning compliance with deadlines, punctual attendance at class and scheduled meetings, civil and respectful interaction with classmates and me, timely and good faith completion of ungraded exercises, etc.  A percentage of each student’s grade depends on how well he or she meets these professional standards. Two of my students missed their first deadline for an ungraded exercise last week; neither had any kind of explanation. Consistent with the underlying professionalism theme of my course, I informed these students that such behavior, if repeated, would fail to meet my professional standards, just as it would fail to meet the professional standards of any legal employer.

It will be interesting to see if and how Twenge’s findings manifest themselves in the current and future 1L classes. I strongly recommend the book; it provides an excellent foundation for putting a variety of possible student behaviors into context.

Filed under: Best Practices, Best Practices for Institutional Effectiveness, Uncategorized | 1 Comment »

Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Posted on December 28, 2017 by Paula Schaefer

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

Filed under: Best Practices, Best Practices & Curriculum, Best Practices, Diversity & Social Justice, Catalysts For Change, Diversity & Social Justice, Teaching Methodology, Uncategorized | Tagged: , , , , , | Comments Off on Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Forbes article focusing on law schools, competencies and skills development

Posted on October 1, 2017 by Mary A. Lynch

Earlier this week, Forbes contributor Mark A. Cohen discussed what he calls “the interdependency — and misalignment —   of law school stakeholders.”  Cohen refers to a comment in a recent speech by Mark Smolik, the general counsel of DHL Supply Chain Americas, that  “he would no longer subsidize on-the-job-training of law firm associates.”  According to Cohen, Smolick’s remarks are an

indictment of the Academy for its failure to produce practice-ready graduates with required skillsets and a swipe at law firms for their failure to more fully invest in associate training to drive client value.

Cohen is urging today’s law students to look to the marketplace for “efficient, accessible, cost-effective, and just-in-time learning tools available to fill knowledge gaps and to teach new skills.” He boasts about one product that produces “high quality videos” and uses “flipped classrooms.”

I don’t disagree that law schools need to transform faster, provide more skill building,  emphasize the business context in which lawyers are hired to help, and prepare law students for the team realities of today and tomorrow’s economy.  And I appreciate Cohen’s raising this issue and inviting discussion. But his claim that only a “handful” of law schools are savvy on these issues – or as he put it have “yet to read the memo” – made my Irish blood boil. Maybe it is because it is the end of the week and I’m just tired? Maybe it is because I  just recently (September 13th) hosted yet another Flipping (every pun intended) workshop at our school showcasing all the great work being done by my colleagues in flipping their classroom? Maybe it is because if Cohen googled law schools and flipping classrooms,  he would have found Michele Pistone’s fabulous LegalED information? Maybe it is because he could have found this blogsite pretty high up on that google search and clicked on a number of posts such as here and here  and here and here and here  and here ?  Maybe it is because  nobody is noticing the work of folks like my faculty colleague Antony Haynes on innovative online opportunities?

I invite you to read the article, see what you think and tell us on this blog about what Cohen missed happening at your school!

Filed under: Best Practices, Catalysts For Change, Uncategorized | Tagged: , , , , | 5 Comments »

Experience with Peer Support, Peer Review and Feedback on Teaching?  

Posted on September 25, 2017 by Mary A. Lynch

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

Filed under: academic freedom, Best Practices, Best Practices for Institutional Effectiveness, Best Practices, Outcomes & Assessment Techniques, Catalysts For Change, Outcomes & Assessment Techniques, Teaching Methodology | Tagged: , , , , , , , , | 6 Comments »

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Posted on June 4, 2017 by Mary A. Lynch

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

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Law Schools in the “Age of Accelerations”

Posted on May 12, 2017 by Ray Brescia

How can law schools prepare students to enter what Thomas Friedman calls the “Age of Accelerations,” when new technologies, climate change, and globalization will likely reshape the planet, and the legal profession, for decades to come?  Friedman’s prescription for educators, contained as part of his eye-opening new work, “Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations,” suggests that higher education needs to become more student centered, student directed, and project based.  It must offer students opportunities for mentors who can guide them through their educational experience and internships that can give them exposure to real-world problems.  In an interdisciplinary course I teach at Albany Law School, together with faculty from the University at Albany, entitled “Law and Social Innovation: Creative Problem Solving,” my colleagues and I try to put some of Friedman’s prescriptions to the test.

In the class, law students and public administration students work in teams to provide high quality research support to local governments on a range of issues, most recently helping local cities deal with issues of urban blight.  The students work on projects that have them conducting field research and assisting local government lawyers and technology staff in bringing legal actions to combat the scourge of vacant and abandoned homes that impact many cities in Upstate New York.  The students assist those lawyers in working through the process of taking such actions and then make recommendations as to how the cities can streamline their processes to make them more efficient and effective.  In these ways, students learn not just how things are done in the cities and how to get things done, but how to work effectively in teams, to tap into their own creative sides, to engage in problem solving, and to communicate their ideas effectively.  The liaisons in city government offer them the chance to work closely with them in a real-world setting and mentor them on the realities of real-world practice.  My faculty colleagues and I also offer mentoring and individualized and customized support throughout the semester as our students explore their own capacities for creativity, leadership, and public service. In these ways, we tap into what Anders Ericsson calls “deliberate practice”: intentional, focused attention to measured, incremental improvement on discrete tasks, leading to ultimate mastery.  We also glean insights on how knowledge workers can distinguish themselves in a time of automation and outsourcing, thanks to Dan Pink’s “A Whole New Mind: Why Right-Brainers Will Rule the Future,” and working in teams, from research on the functioning of groups at Google, as captured by Charles Duhigg in his work “Smarter, Better, Faster: The Secrets of Being Productive in Life and Business.”

In short, I would like to think the students learn the skills and approaches that Friedman believes are needed generally in this Age of Accelerations, but also much of what is recommended by those in legal education specifically, like the Clinical Legal Education Association’s Best Practices efforts and the work of Educating Tomorrow’s Lawyers consortium.  I have written in greater depth about this class—its educational goals, the strategies we use to meet those goals, and the current state of the profession and the context in which students entering law schools currently find themselves—here.  Give the article a few moments of your time if you can spare them; I welcome comments and feedback on the class structure and approach and would be happy to share syllabi and thoughts on how the class can be adopted in and adapted to other contexts.

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What is a “Fact”? A “Story”?

Posted on January 26, 2017 by Ruth Anne Robbins

In Washington D.C., on the GWU campus, there is a statue of a hippopotamus. A nearby sign explains that the statue was placed there because hippos once could be found in the Potomac. George and Martha Washington liked watching them from their Mount Vernon porch. They were also a favorite of children visiting the estate. George Washington even had a false set of teeth made of hippopotamus ivory.

As you have likely guessed, that sign offers readers what we might call mendacities, misrepresentations, falsehoods, alternative facts, untruths, lies, or bulls**t. To end any suspense, there really is a statue, the sign really does say most of these things, and George Washington really did have a false set of teeth made of hippo ivory. But the Washingtons never saw hippos frolicking in the Potomac and no one would have children anywhere near the Potomac if there were. To see hippopotami in the Potomac, someone would have had travel to Sub-Saharan Africa, capture a pod of hippos (they are social creatures) without being attacked (they are very dangerous, killing 3,000 people each year), carry them across land to seafaring boats, make the trek across the Atlantic, and then to the Potomac—all while keeping the animals’ skin moist at all times. The hippos might freeze in the winter if not recaptured and quartered somewhere warmer. Hippos are also very large, weighing in at 1.5 tons or more.

Nevertheless, these facts and falsehoods hang together as a story. When did you begin to question that story? When you began to question, did you then question the entirety of the facts or were you willing to believe any of the information as fact? As lawyers, you know that stories are composed of facts, but if asked for a definition of a fact or of a story, can you provide one?

More importantly, we want the next generation of lawyers to fully appreciate the answers to those questions. With the decentralization of information, I find that I need to be more deliberate in my approach to teaching different categories of facts: actual facts such as the sun rising in the east on our planet; verifiable facts, such as the natural habitat of hippopotami; and debatable facts, such as whether this sentence should have used “whether or not” instead of “whether.” I also spend a significant amount of time distinguishing facts from characterizations, which are essentially the opinions or judgments of the writer. Someone’s “lovely summer-preview week in April” is someone else’s “torturous week in April” if that second someone suffers from summer Seasonal Affect Disorder. And, now, sadly, I am spending more time teaching the difference between facts and misrepresentations or falsehoods, such as a statement that this blog post focuses primarily on hippopotami (a misrepresentation) or on cat memes (a falsehood).

For several years, I have also spent several class hours on the importance of story structure as the delivery vehicle for facts and story strategy as a driving force in persuasion. A story involves characters, a setting, and hurdles or challenges that a particular character or characters must overcome to reach a desired goal. Implicit in that definition is the passage of time, i.e. a beginning, middle, and end. It is easy to see how legal matters exist as stories. The nub is in the teaching of the re-telling, from the client’s perspective, using description and detail—that is, facts—rather than characterizations.

Facts must be presented as a narrative rather than as a list if the author wants the audience to interact with those facts and remember them. Facts by themselves don’t persuade. Stories persuade. That’s not my opinion, but has been demonstrated by science across a variety of fields. We think, act, make decisions in story. As those of us studying and writing on applied legal storytelling know, former Oceanographer at the Department of Energy, Kendall Haven has published books to help professionals digest the vast amount of science out there. For yourself, take the simple but germinal test in the study conducted in 1944 by Drs, Fritz Heider and Marianne Simmel. Look at the video and see if you can answer a few of the questions. If you can, you have demonstrated that you think in story. To demonstrate this to my students, before showing the video I divide the class in thirds and assign each group a client to represent. After showing the video twice I ask each group to tell a story from that client’s perspective.

Contrary to what we may call our lawyer’s sense of justice when the verifiable facts disprove falsehoods, citing just the facts by themselves may actually backfire–here’s a great Harvard Business Review article with links to the original studies that will help explain why. In law, there are several studies of jurors that demonstrate the power of story, but only a handful of studies testing legal audiences. In a 2010 article Ken Chestek wrote about a study that used carefully constructed briefs to study the preferences of judges, court staff attorneys, newer attorneys serving as law clerks, appellate attorneys, and law professors. From the data, he concluded that stories are more persuasive to decision makers than syllogistic reasoning by itself. Attorneys and judges with more than five years of practice overwhelmingly chose a storied version of an advocacy document over a straight-up law/application version. Only the attorneys newly out of law school deviated from this pattern—begging the question, are we doing something in law school that skews this number so much from what judges and seasoned attorneys believe to be effective lawyering?

Assuming you are on board that our students should graduate knowing what facts are and knowing that representing clients means being able to appreciate and tell their clients’ stories, the last question to answer is the curricular locale for teaching these things. Historically, the clinic and externship programs at law schools have been celebrated for focusing students on facts and narrative in a capstone experience. I am a true believer that those programs will continue to be the locales in which students will most strongly make the connections between legal and narrative reasoning. But we do students a stronger service if they enter the capstone experiences with a strong foundation. The casebook authors can include more story so that teaching professors can reinforce the ideas of facts and narrative. The skills professors of the trial advocacy and practicum courses include some training, but the first and heavy lift most appropriately belongs in the required first-year legal research, analysis & communication course series. Gone are the days when we can teach those courses by indulging in the pedagogy of a legal document’s traditional text-based sections or on a singular paradigm for organizing legal reasoning. In 2017 we must focus on making students client-ready. Written and verbal communication in law occurs in a variety of mediums, to a variety of audiences, and in a variety of different rhetorical situations. The connecting universals across law and legal communications will always include law, facts, and story.

*Thank you to Courtney Knight, Class of 2017, Rutgers Law School, for the story idea.

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DO LAW SCHOOLS ADEQUATELY PREPARE STUDENTS FOR PRACTICE? SURVEYS SAY . . . NO! – Robert Kuehn, Washington University School of Law

Posted on January 3, 2017 by rkuehnblog

Under ABA Accreditation Standard 301, law schools have two educational objectives: prepare their students “for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” There has been much concern lately over declining bar passage rates, focusing attention on whether some schools are admitting students who may not be capable of passing the bar exam and whether a school’s program of legal education adequately prepares its graduates for the exam.

In focusing on the bar exam, it’s important not to lose sight of legal education’s primary duty of ensuring that law school prepares students for entry into the legal profession and a successful career. If studies of practicing lawyers and recent law graduates matter, it is clear that law schools are failing, even worse than in preparation for bar admission, to adequately prepare their students for legal practice.

A 2012 study by the National Conference of Bar Examiners (NCBE) analyzed the job activities of newly-licensed lawyers to determine which knowledge domains and professional skills and abilities are most significant to their job. Acquisition of professional skills and abilities were deemed significantly more important to newly-licensed lawyers than legal knowledge — 25 skills and abilities were deemed more important than the highest rated knowledge domain. The percentages of lawyers using these 25 skills in their work (all rated between 89% to 100%) also were all greater than the percentage using the highest rated knowledge domain (86%). Yet these skills and abilities generally are not developed in traditional doctrinal law classes but in the experiential and first-year legal writing courses that, under the ABA standards, need only account for ten percent of a student’s legal education.

These important skills and abilities are also a small part of the bar exam, which purports to measure competence to begin the practice of law. Although the NCBE study was promoted as the basis for further development of the exam, since the study’s completion the portion of the exam devoted to testing skills remains the same (the 3-hour Multistate Performance Test). The NCBE’s only apparent response to the study’s dramatic finding that professional skills and abilities are what new lawyers need most for competent practice was to add civil procedure (the study’s highest rated knowledge domain) to the Multistate Bar Exam.

A report released this year by Educating Tomorrow’s Lawyers reinforces the disconnect between legal education’s overwhelming focus on legal knowledge and the competencies new lawyers need. A study of more than 24,000 lawyers in 50 states sought to determine the foundations entry-level lawyers need to launch successful careers in the legal profession. The study found “that characteristics (such as integrity and trustworthiness, conscientiousness, and comment sense), as well as professional competencies (such as listening attentively, speaking and writing, and arriving on time), were far more important in brand new lawyers than legal skills.” Yet, again, only in clinical and first-year legal writing courses are there efforts in the law school curriculum to address the “soft skills” so necessary for the success of new lawyers.

These two studies mirror the findings of decades of earlier studies. In a 1978 study, mid-career lawyers rated the importance of 21 types of legal knowledge and skills in their daily work and the role of their law school training in attaining that knowledge or skill. With the exception of knowledge of statutory law, none of the eight areas of legal knowledge was considered very important for their work. In contrast, six of the methodology and skills areas were deemed of great importance.  When then asked to rate their law schools’ role in developing skills, two-thirds said their school had been “not helpful” or “played no role” in their ability to develop essential practice skills like interviewing, counseling clients, and negotiating; more than 40% said law school failed to train them to draft legal documents or effectively communicate orally.

A later study of Montana lawyers came to similar conclusions. It asked what level of competence a lawyer should have to perform in a professionally competent manner and what level of competence they observed first-year lawyers to have. The results indicated the need for greater emphasis in law school on the development of professional skills and the importance of character traits to a new lawyer’s successful transition to practice. A 1993 study of Chicago and Missouri lawyers found large gaps between the skills lawyers deemed most important to their practice and the attention law school paid to those skills, especially in the areas of oral and written communication, drafting legal documents, problem solving, negotiation, fact finding, counseling, and litigation. The lawyers believed that a majority of these practice skills could be learned in law school, if the focus of legal education were changed. A similar study of Minnesota lawyers found most did not believe they were well prepared immediately following law school on nine of seventeen important practice skills. Like respondents in other studies, those lawyers believed these skills can be effectively taught in law school.

More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.

Two studies by LexisNexis reinforce this view. In a 2009 survey, 90% of attorneys in private practice and corporate law offices said that law school does not teach the practical skills needed to practice law today. A similar study six years later found that legal education has not improved, contrary to the claims of some legal educators and regulators. In the 2015 survey, 95% of hiring partners and senior associates who supervise new attorneys responded that recently graduated students lack key practical skills at the time of hiring. The lawyers also believe its not a matter that law schools cannot teach these skills but that they simply refuse to do so: “Most attorneys involved with hiring and management of new lawyers agree practical skills can be effectively honed through clinics, internships, clerkships, and experience in actual or simulated application to a case.”

Law students who just graduated realize their need for more practical training — 87% say legal education needs to undergo significant changes to better prepare future attorneys; 97% favor a law school model that incorporates clinical experience. Judges agree. When asked what change would most benefit law schools, judges of all types of court (federal and state, appellate and trial) rated more coursework on practice-oriented skills the highest, far exceeding support for expanding the core curriculum.

Fifty years ago the dean of the University of Chicago School of Law stated that the aim of law school “is not to train lawyers, but to educate men [and women] for becoming lawyers.” If the attitude of the ABA and law school deans has changed since then, it isn’t reflected in the readiness of law school graduates for practice when over 90% of lawyers give legal education a failing grade. So while educators worry about declining grades on the bar exam, isn’t it also time to fix legal education’s longstanding failure to meet its duty to adequately prepare it students “for effective, ethical, and responsible participation as members of the legal profession”?

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Looking Beyond the Trends: Who’s Our Curriculum Really For?

Posted on September 16, 2016 by Pam Armstrong

Just catching up on my summer reading and I came across a short piece titled, “My Best Marketing Advice for Lawyers,” by John H. Fisher, Esq.  In the article, Attorney Fisher responds to an inquiry for his best marketing advice by saying: “Identify your ‘Ideal Client’ and nurture and cultivate the relationship with your Ideal Client through a series of educational and informative newsletters, speaking events, books, and social events.” 1  This three-step plan: paint a picture of your ideal client, attract your ideal client, and nurture the relationship with your ideal client was clear, linear, and supported with some truly clever and constructive examples of providing best tips and advice – for your referral partners. The article concludes that this plan has the power to change law practices, create goodwill, and perhaps make the actor a “mini-celebrity among peers.”  Apropos of the previous blog, such advice seems consistent.  And, to be fair to Mr. Fisher given what follows, he was posed the question, and we are still in the post “failing” law school phase.

 

Two of several things that give me pause here, are in who is assumed to be the “ideal” client and how we are affecting our students’ priorities when we offer and even encourage them to take “law” school courses in economic trends in the legal profession and personal finance.  The apparent underlying assumption of both articles is that the “ideal” client is someone who will financially advantage the lawyer, and/or that the wealth of our profession and ourselves is worthy of credit in a school devoted to the study of law. Understanding that making a living is important, I’d note that there are no major stories about whether lawyers make a “living wage” either here2 or in other nations, or of lawyers who cobble together several jobs over the long-term to support themselves or a family.  But I did, however, recently listen at a ceremony where the head of a non-law institute spoke eloquently about the goal of that educational institution as doing justice and having their faculty involved in field-work toward helping others establish workable justice systems.  Non-lawyers.

 

Whenever students struggle with understanding a statute or regulation and where I sense a disconnect, I encourage asking who benefits from a policy or something being advocated.  Then, recognizing how easy it is to go along with an idea that is being advocated when it is self-benefitting, I encourage students to ask who is left out and, if appropriate, why we continue to allow others’ priorities to be that determinative.

Filed under: Best Practices, Best Practices & Curriculum, Best Practices for Institutional Effectiveness, Best Practices, Outcomes & Assessment Techniques | 4 Comments »

AALS Video Series on Law Teaching

Posted on June 30, 2016 by rebeccaharp

Recently, a fellow blogger sent us a very helpful tool, that we wanted to share with our readers.  Last year, during the 2015 AALS Clinical Conference, a series of informative videos was created for law professors about the complications associated with law teaching.  The entire series is about an hour long, with each individual video being only about 5 minutes long.  These videos address some of the important pedagogical issues that law professors are currently grappling with, such as assessment, adding experiential learning to doctrinal courses, reflection, and technology.

This in the link to the entire series:

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Teaching Tips to Think about Early in the New Semester- By Steven Friedland

Posted on February 3, 2016 by Steven Friedland

With the beginning of a new semester upon us, these thoughts and tips are a great thing to keep in the back of everyone’s mind whether you are a student or a professor.  This great post was done by Steven Friedland.

Flexibility and Mobility in Law School Learning

As a professor who has been teaching for more than two decades, it is easy to feel like a dinosaur in classes populated by students mostly in their 20s.  But within that notion lies the fact that not only do ages change, but cultures as well.  It is evident that within the born-digital generation, cultural understandings, particularly involving learning, are different than mine.

While I think cross-cultural competency is more important than ever in this global era, it also applies to us teaching dinosaurs.  I learned in law school in a linear and fixed fashion – go to class, take notes, go to the library, study and prepare for the next class.  Based on studies and my own anecdotal evidence, there is an increasing preference for mobility and flexibility in learning.  I am becoming a believer in both — using Web platforms like TWEN, Blackboard or Moodle as integral parts of a course, and allowing students to have flexibility in where and when they learn.

I am now experimenting in doctrinal courses to include several flex classes — audiotaped, with an option to take each over a 24 hour period in a self-paced fashion.  These self-paced classes are combined with deliverables — writing an answer to a problem based on the class material and then posting it on the Web platform, or doing some other relevant task based on the material to ensure that some form of learning has occurred.  So far, these classes have been well-received; to my surprise, students like the flexibility about when they take class as much as the remote opportunity. I am enjoying shaking it up in this way.  What is the saying?  Even an old dinosaur can learn….

 

Note-Taking Breaks

In a law school class, there are a variety of note-takers.  Some are the “court reporters,” taking down every word.  Some take far fewer notes, within their own organizational schemes. Many students are using computers, with note-taking programs. I also have had some “deep observers,” who appear to take no notes at all.

But all students seem to rely on the notes they take in putting a course together for deep understanding, especially in the first year of school.  Interestingly, teachers do not generally know how students are taking notes and whether those notes taken are even accurate.  This is why I have started using a colleague’s technique (yes, I like borrowing good ideas from others, no hiding there), of taking “note breaks” in the middle of a doctrinal class — allowing students to check their notes with other students, particularly about important rules, principles or insights. I usually prompt the break by asking, “What were the most important points in class so far?”  This has several effects.  Everyone perks up and the students appear present and engaged.  Students also are more likely to ask questions about what has occurred thus far.  I get useful feedback on what I have communicated well and what I have done poorly.  So all the way around, I find it to be a helpful technique. When students walk out of class, they should be able to rely on and have ready access to useful notes.

 

Retention and Retrieval

Lots of studies have been done that show experts learn differently than novices.  In any educational process, the goal is to move up the scale, from unconscious incompetence, to conscious incompetence, to conscious competence, to the highest level, unconscious competence.  I know about the lowest level, having been there in law school and many other contexts (just thinking back on the longest years of my life taking piano lessons).  The highest level of competence is epitomized by Captain Sully, the U.S. Air pilot who landed his commercial plane without engines in the Hudson River.

So what learning features are associated with experts? Experts recognize patterns of information, have deep understanding of material within a domain, organize their information well for ready access, and constantly self-monitor.  We can learn from these characteristics in law school.  It is traditional for law school professors to evaluate student performance through a single final examination, (although sometimes mid-terms are also offered).  The traditional summative evaluation framework promotes a particular type of studying.  Students study like crazy just before an exam, and then dump all of their knowledge on the test. (This approach was a familiar one for me when I was in school.) To help students progress from novice to expert, though, we should teach for long-term retention and retrieval.  This can occur through the use of numerous problems and opportunities throughout a course by which to practice organizing and storing material before a final exam, the use of structures or outlines by which to approach topics, and a greater emphasis on mnemonics, anchor words and other learning devices.   Sometimes, in our desire to cover great swaths of material, we don’t drill as deeply as we could or should.

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New York Proposes “Experiential Learning Requirements” as Condition of Licensure: CLEA and NYS Bar Committee Respond

Posted on November 20, 2015 by Mary A. Lynch

Readers of this blog and followers of the NCBE’s expansion remember  that this past Spring New York became the 16th state  to  adopt the Uniform Bar Examination (UBE), changing  its longstanding bar admission requirements.  Many voices opposed adoption including the New York State Bar Association (NYSBA) (see Committee on Legal Education and Admission to the Bar (CLEAB) report 10-29-2014  and vote of House of Delegates), the Clinical Legal Education Association (CLEA) and the Society for American Law Teachers (SALT).  Despite these and other  opposition voices, the proposal was adopted with the new changes going into effect for the July 2016 bar examination.

During discussion of the adoption of the UBE, the Court was encouraged  to include clinical or experiential  requirements for licensing so that lawyers admitted to the New York Bar would be ahead of the curve — a position I firmly support.   On the opposite coast, California had been engaged in a multi-year process examining licensure and profession readiness which resulted in a proposal requiring 15 credits of experiential learning before admission.  In response to the movement to incorporate experiential learning in bar admission,  the New York State Court of Appeals formed a Task Force on Experiential Learning and Admission to the Bar.  Just last month, that Taskforce requested comments on its proposal that

New York adopt a new mechanism for ensuring that all applicants for admission to the bar possess the requisite skills and are familiar with the professional values for effective, ethical and responsible practice. In light of New York’s diverse applicant pool, and in an effort to accommodate the varying educational backgrounds of applicants, the Task Force suggests five separate paths by which applicants for admission can demonstrate that they have satisfied the skills competency requirement.

The New York Law Journal examined the proposal in an article found here.   In addition, the Honorable Judge Jenny Rivera, chair of the Taskforce attended a meeting of NYSBA’s Committee on Legal Education and Admission to the Bar (CLEAB) to explain the proposal and answer questions.

It is heartening that the Court is concerned about and wants to  require the development of essential lawyering skills and professional values acquisition. However, without more, Pathway 1 of the current proposal will not actually ensure  that applicants to the bar experience the kind of skill development and value formation that the Taskforce desires.  Pathway 1, referencing new ABA standards,  requires schools to confirm that they have published  their “plan for incorporating into their curriculum the skills and professional values that,  in the school’s judgment,  are required for its graduates’ basic competence and ethical participation in the legal profession.” It also requires law schools to certify  that law graduate applicants for admission “have sufficient competency in those skills and sufficient familiarity with those values” which are publicly available on the law school’s website.  Although Judge Rivera believes that the certification process described in Pathway 1 can have some real bite, as pointed out in comments submitted by the Clinical Legal Education Association (11.9. 15 CLEA SUBMISSION ON EXPERIENTIAL REQUIREMENT ), Pathway 1 simply mirrors the experiential training requirements already mandated by the American Bar Association.     

New York’s  law school deans, not unexpectedly,  submitted comments supporting the “flexibility” of Pathway 1.  The  CLEAB report to the Experiential Taskforce expressed concern that without additional content to Pathway 1 “little will be accomplished” by the proposal.   And as one member of the NYS bar committee  argued, “what law school is going to admit that one of its graduates did not acquire the skills or  values promised on its website?”

In my opinion, the most important concern is whether applicants to the bar have ever represented or interacted with a client, or operated as a lawyer, in a live setting under guided, experienced supervision before admission.  In its comment to the Taskforce, CLEA urges that a “three- credit clinical training requirement” be added for all J. D. applicants to the New York Bar.  This makes sense.  Law school clinics and faculty-supervised externships are designed to create the very kind of skill development and value acquisition with which the Court is concerned.  And clinical faculty have developed the formative assessment tools to maximize skill and professional identity formation.

I am hopeful that, in its next iteration of the proposal, the Taskforce will heed CLEA and CLEAB’s comments and come back with recommendations that will ensure applicants for the bar are ready to engage in competent, ethical and professional representation of New York’s citizenry, corporations, and not–for–profits.

 

 

 

 

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