Teaching Legal Reasoning More Efficiently?

Posted on October 28, 2015 by dmaranville

Teaching the traditional analytical skills more efficiently and effectively could provide a much needed opening for broadening the range of skills taught to all law students. In the legal academy’s version of the “socratic method”, law teachers historically taught the analytical skills” implicitly”. They demonstrated legal reasoning by pushing students away from their raw intuitions of fairness and justice to articulate rules and exceptions, while attending carefully to the inevitable ambiguities of language.

Some law teachers suggest that the process of learning to “think like a lawyer” fundamentally requires time and practice and therefore cannot be significantly speeded up.

Yet the implicit approach has been repeatedly challenged by scholars seeking to teach legal reasoning more explicitly, by naming and explaining how it works.*  (An obsession with the goal of teaching legal reasoning more efficiently was a major thread in two phases of my own legal career when I taught first year civil procedure. I struggled both to teach skills more explicitly and to provide students with opportunities to practice them.)

A recent contribution to this quest by my colleague Jane Winn grows out of her experiment teaching common law legal reasoning to undergraduates. Students were randomly assigned to use either a well-regarded study aid, or Winn’s own materials. The materials were also leavened by her own and colleagues’ experiences teaching foreign LL.M. and J.D. students coming from legal systems growing out of the European continental legal tradition.

Winn’s effort, aimed at law students, is notable in three respects. First, at twenty-nine pages it fills an intermediate-length niche: longer than a typical class “handout’, but shorter than the various book length alternatives. Second, it covers case briefing, outlining and exam questions, demonstrating how the three are related. Third, it grew out of an attempt to test her teaching method empirically using random assignment to a control group. Both law students and legal educators should find it a useful contribution.

The 2015 ABA accreditation standards may provide a laboratory in which to test efforts such as Winn’s. Standard 302 now requires law schools to adopt learning outcomes that, under subsection (b), must include legal analysis and reading; Standard 314 requires law schools to provide students with both formative assessment (feedback) and summative assessments (final “grades”); under Standard 315 law schools must engage in “ongoing evaluation of the program of education, learning outcomes, and assessment methods”. At its best this combination of more intentionally articulated outcomes, feedback to students, and program evaluation could prompt law schools to evaluate the potential for greater efficiency and effectiveness in teaching legal reasoning. I remain hopeful that enough schools will approach this task rigorously and in good faith that at least some progress can be made.

*Winn’s illustrious predecessors include:

  • Leading Legal Realist Karl Llewelyn, whose The Bramble Bush: Classic Lectures on Law and Law School have been assigned to generations of law students;
  • University of Chicago Professor and President and U.S. Attorney General Edward H. Levi, author of An Introduction to Legal Reasoning, originally published in the University of Chicago Law Review and then in book form;
  • Critical Theorist and Harvard Professor Duncan Kennedy, who took the decidedly un-Harvard step of visiting at New England School of Law in his attempt to reach beyond elite students and sharpen his skill at teaching students about the “gaps, conflicts and ambiguities” that underlie the development of the common law. He shared his insights widely with former students moving into teaching careers. produced a short volume
  • My former colleagues Pierre Schlag and David Skover, who produced a short volume early in their careers that catalogued the Tactics of Legal Reasoning (1985).
  • Richard Michael Fischl and Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999)
  • Leading clinical teachers Albert J. Moore and David Binder, Demystifying The First Year of Law School: A Guide to the 1L Experience (2009)

In recent decades much of the heavy lifting in legal reasoning has devolved upon teachers of legal analysis, research and writing. Among the results is a burgeoning literature proposing variations on the syllogistic Issue-Rule-Analysis (or Application)-Conclusion approach to analyzing and writing about legal problems, as well as a variety of textbooks.

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Legal Education & Civility in the Legal Profession

Posted on October 25, 2015 by dmaranville

A recurrent theme in current critiques of legal education is the need to develop lawyers with interpersonal, intrapersonal, and leadership knowledge, skills and values, as well as the traditional analytical skills and doctrinal knowledge. (A significant portion of Chapter 6, Teaching the Newly Essential Knowledge, Skills, and Values in a Changing World in the recent volume Building on Best Practices: Transforming Education in a Changing World (Lexis 2015) is devoted to the what and how of teaching such topics.)

Opportunities to reflect on this theme abounded in early October, when I had the privilege of attending the Civility Promise Continuing Legal Education seminar in Sovana, a small hill town in southern Tuscany, Italy. Sponsored by Seattle University Law School. and Robert’s Fund, the seminar brought together fifteen attorney participants from diverse practice backgrounds. They included a retired corporate attorney and managing partner of what is now a leading global law firm, a retired trial court judge, and lawyers with criminal or civil litigation, or transactional practices in both private and government settings.

Conceived by Paula Lustbader, teacher extraordinaire and emeritus professor of law at Seattle U. in collaboration with Italian artist Sergio Tamassia, the seminar was co-taught by two exceptionally skilled presenters: Tim Jaasko-Fisher, Senior Director of Curriculum and Programming for Robert’s Fund, formerly Assistant Attorney General and then Director of the University of Washington Law School Court Improvement Training Academy, and Craig Sims, Chief of the Criminal Division of the Seattle City Attorney’s Office.

The seminar identifies three pillars of civility: consciousness, community, and creativity. After fostering each pillar within the group in a brilliantly executed mix of didactic, reflective, and creativity-facilitating teaching methods, participants are challenged to take their learning into the profession.

Each participant was drawn to the seminar for their own personal reasons and several shared compelling experiences — the opposing counsel whose business model was the shake down, the ultimately unsuccessful malpractice suit based on the theory that an attorney approaching a case with a collaborative mindset violated her duty to her client, the former colleague who cracked under pressure and – the ultimate case of incivility — murdered his opposing counsel. And all bemoaned the all-too-common misconception that the adversary system is about behaving uncivilly, rather than developing and presenting the most compelling arguments on the merits.

Concerns over incivility have led some jurisdictions to adopt mandatory civility codes and help inspire the burgeoning mindfulness movement. Like the profession, many law schools are pursuing mindfulness for multiple reasons, including encouraging civility. Whether these efforts will be sufficient to effect widespread change in individual attorney behavior and the culture of the legal profession remains to be seen. But the Civility Promise seminar provided both incentive and tools for change. We can also hope that it will inspire similar efforts in legal education.

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The 25 Most Important Lawyering Skills?

Posted on October 8, 2015 by Ben Bratman

In discussing bar exam reform in my earlier post, I referenced the results of this job analysis survey of newly licensed attorneys. The attorneys, all in practice for three years or less, were asked to rate the significance to their jobs of various skills or abilities (e.g., legal reasoning, organizational skills, written communication) and various knowledge domains (e.g., Rules of Evidence, Contract Law, Rules of Civil Procedure). Ever since I first saw the results, I have been taken with one particular statistic: The respondents rated 25 different skills or abilities as more significant to their jobs than the highest rated knowledge domain.

After the results came out, I looked more closely at these 25 skills and organized them into five broader skill categories. (My chart, which includes all 25 skills and each one’s average rating on a scale of 1 to 4, is below.) I then led a discussion on the importance of all of this to legal education at a legal writing conference last spring. Some of the colleagues in attendance offered insightful and practical comments that I’d like to share here.

One suggested that the 25 skills are a good starting point for formulating a new course to satisfy the ABA’s expanded practical skills requirement in the new Standard 303(a)(3). Others suggested that my chart, or something akin to it, could be a means for identifying and measuring learning outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession” under Standard 302(d), or additional learning outcomes under Interpretation 302-2.

I hope that many in legal education will find this chart, my colleagues’ ideas, and the overall survey results to be valuable tools. And, if anyone has feedback on how to revise the chart to make it a more useful tool, please get in touch.

Communication Analysis Research Project Management Professionalism
Written communication 3.77 Critical reading & comprehension 3.55 Computer skills 3.28 Paying attention to details 3.67 Professionalism 3.58
Listening 3.60 Synthesizing facts & law 3.55 Electronic researching 3.26 Using office technologies 3.56 Judgment 3.29
Oral communication 3.58 Legal reasoning 3.54 Fact gathering & evaluation 3.22 Knowing when to go back & ask ?s 3.46 Diligence 3.26
Interpersonal skills 3.44 Issue spotting 3.43 Organizational skills
3.46
Answering questions succinctly 3.30 Information integrating 3.10 Working within established time constraints 3.44  
Advocacy 3.24 Decisiveness 3.31
Consciousness of limitations 3.15
Planning & strategizing 3.13

 

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Unmasking Assumptions about Employment Outcomes and Legal Education

Posted on September 14, 2015 by Mary A. Lynch

In an upcoming Wisconsin Law Review article, Robert Kuehn, Associate Dean for Clinical Education and Professor of Law at the Washington University Law School, presents a cogent, well-supported and thoughtful article describing the limitations of and lessons we can learn from the existing empirical analysis correlating student enrollment in clinical education and employment outcomes.  Kuehn’s article, entitled Measuring Legal Education’s Employment Outcomes is particularly powerful because it provides a thorough empirical rejection of the claim that clinical coursework might actually harm employment outcomes, as asserted by Professor Jason Yackee and which attracted some sound-bite attention earlier this year. In what is, perhaps,  an unexpected twist, Kuehn demonstrates that using Yackee’s statistical assumptions and methodology also would produce negative correlations for those students who participate on law journals or in moot court competitions.  Kuehn argues that one can’t draw any reliable conclusion from Yackee’s 2013 model, and perhaps not from any nationwide statistical model – as opposed to a particularized analysis of one school –  on the likely effect of clinical courses (or other activities like law journal or moot court) on employment, and surely not the negative effect Yackee posits. Kuehn points out that as to clinical coursework, the available evidence (through surveys) indicates that such experiences do aid some students in securing employment.

If you, like me, still become a bit nervous about how much you actually remember from undergraduate statistics courses, do not be alarmed by this post!  You will find Kuehn’s article accessible and a quick good read, even when he is using words like “regression analysis,” “granular data” and “variable choices.”   Here are the points made in Measuring Legal Education’s Employment Outcomes which I found most helpful:

  1. Kuehn’s reminder that when one confuses correlationwith causation one is bound to come up with a “misdiagnosis.” One problem with Yackee’s analysis is the lack of granular data to calculate the true employment rate for those who took a clinic (or who did not).  In fact, the data is so poor that “the results never account for more than half of the variability in employment across schools.”
  2. Kuehn’s explanation of the “confounding effect of prestige” and bar passage on employment outcomes.
  3. The problems of validity and reliability raised by analyses which employ information from ABA questionnaires, particularly those self-reports submitted prior to 2014.
  4. The fact that “13% of law schools” provide 80% of the school-funded jobs to law graduates. Not surprisingly, Kuehn found this factor biases many results if you examine nationwide statistics. And when Kuehn removes those jobs from the statistical analysis, Yackee’s correlation with clinical education falls apart even using his own assumptions and methodology.
  5. Yackee’s model yields completely different results if one uses the US News Lawyers/judges data versus academic peer data to control for the possible influence of perceived prestige.
  6. Application of Yackee’s model to “Law Journals” and “Skills Competition” and S. Newssub-groups also show no relationship to employment outcomes!
  7. In Yackee’s model, a better ranking is “strongly associated with improved employment outcomes.” However, Kuehn points out that a “closer examination of the relationship between rank and employment indicates that this positive association, although statistically significant when applied across the entire range of top 100 schools, does not hold true for schools ranked 51 through 100 (emphasis added).” 
  8. Kuehn’s documentation of employers who require, “strongly prefer” or identify law clinic experience as a positive factor in hiring such as The U.S. Department of Homeland, legal services and  legal aid offices, district attorney, public defender, fellowships and private law firms.
  9. Kuehn’s description of National Association of Law Placement (NALP) existing information: such as the  2011 survey of lawyers with non-profit and government offices;  the NALP survey of lawyers in firms of predominantly more than 100 attorneys; the NALP survey of public interest legal employers;  and the NALP 2013 presentation on the employment market reporting that ” law firms say they want new graduates to have ‘more experiential learning, client-based and simulation.”
  10. Kuehn provision of good information on other employer information such as the Lexis-Nexis WHITE PAPER: HIRING PARTNERS REVEAL NEW ATTORNEY READINESS FOR REAL WORLD PRACTICE, Professor Neil Hamilton’s employer survey to determine the relative importance of twenty-one different competencies in employer hiring decisions, and Professor Susan Wawrose’s legal employer focus groups which found employers prefer new hires with ” well developed professional or ‘soft skills” along with “strong fundamental practice skills.”

Professor Kuehn concludes by recommending that studies could best be done on a school-by-school basis by “surveying likely employers to find out what educational experiences of students are most valued.”  Professor Kuehn also recommends that schools could also “retrospectively look at various employment outcomes for graduates and any relationship” to students’ experiences while in school.

I agree with Professor Kuehn and am happy to report that  Albany Law School,  through its faculty Assessment committee and Admissions office,  is currently engaged in conducting employer focus groups and analyzing what best helps our students obtain employment in their desired career paths.  Until good data and information suggests otherwise, Professor Neil  Hamilton’s advice to law students,which Professor Kuehn quotes in his “must read” article, bears repeating:

In this challenging market for employment, a law student can differentiate herself from other graduates by demonstrating to legal employers that the student both understands the core competencies that legal employers and clients want and is implementing a plan to develop these competencies, including an ability to demonstrate that the student has experience with these competencies.

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Annual Leadership in Legal Education Issue of Univ. of Toledo Law Review Filled with Best Practices Nuggets

Posted on September 6, 2015 by Patricia Salkin

The new issue of the University Toledo Law Review is out, featuring its annual “virtual symposium” on legal education by law school deans. These annual issues should be read not just be deans and people who are thinking about pursuing a law school deanship, but they should be read by college and university presidents and provosts, members of law school boards of trustees and advisory boards, senior administrative staff, and most important, by law school faculty. The articles in each volume, taken together, offer terrific insights into current challenges facing legal education, interesting historical background on various aspects of legal education, and innovative ideas to shape the future of law schools and legal education. The winter 2015 volume is no exception.

While I will not address all twelve of the articles/essays in this brief review, I do want to highlight several important themes in four pieces. Beginning with the opening contribution by two-time former dean Peter C. Alexander (Indiana Tech and Southern Illinois), more than mere references to “best practices” principles abound. One of Alexander’s assertions is that law schools, in “the new normal” must do more to create “practice ready” graduates as part of the ongoing curricular reform taking place. He also suggests, “Faculty members have to design new methods of instruction and create new pathways for students to learn….Deans must make funds available for faculty members to learn how people learn and how to teach the current generation of students.” (p. 263) This is an astute observation and one not lost on many in the academy. Most of us on the law faculty did not receive any formal education or degree in pedagogy. While those who work with students from pre-K through 12th grade must be certified as teachers after formal baccalaureate and post-baccalaureate training, there are no such requirements in higher education. Few, if any, dispute that in law school the learning styles of our students has changed over time, and this challenges law faculty to more attune to the need to change our teaching methodologies.

Another piece written by Professor George Critchlow, former interim dean and former director of the clinical programs at Gonzaga University School of Law, focuses on ensuring that legal education in a broad sense is accessible to those who wish to serve the public good – including non-lawyers (a good and controversial read). In his discussion on affordability, Critchlow reviews a number of ideas that have been circulating for years including, but not limited to: law schools partnering with legal services organizations and firms (resembling aspects of the medical school model); a discretionary third year program that consists entirely of a practice-oriented experience; participation by law schools with apprenticeship programs that allow or encourage students to engage in actual work outside of the law school in addition to classes (this goes well beyond the current law school supervised externship and clinic experiences); and cost savings to clinical programs by entering into “hybrid” arrangements with community based legal service providers.

A theme in Critchlow’s article is picked up in greater detail in an article by IIT Chicago-Kent College of Law dean Harold J. Krent and director of clinical legal education Gary S. Laser. Krent and Laser focus on meeting the experiential challenge through the operation of a fee-generating law clinic. By highlighting the example of the IIT Chicago-Kent model which in essence is organized as an in-house law office, the authors point out that students are exposed not just to the traditional live client experience of a clinic, but they develop an appreciation for the economics of law practice. This is important given the increasing attention that many law schools are giving to the business aspects of running law offices, whether it be through the incubator movement, the addition of courses on law office management, and the introduction of business skills to the curriculum.

The symposium ends with an essay by UC Hastings College of Law Dean Frank Wu which I highly recommend everyone read. Dean Wu offers his prescription for reforming law schools, much of which I will not address here due to space and my focus on best practice. Wu states, “A lawyer should be like a doctor. There is no medical school graduate who altogether lacks clinical experience. Every licensed physician has seen a live patient presenting actual symptoms before charging anyone for a diagnosis. Yet some law school graduates manage to do quite well by book learning alone. They need not interview, counsel, or draft, to earn honors, if their exams and seminar papers are good enough.” (p. 420) He discusses the increasing importance of the need for the academy and the profession to understand and appreciate the impact that technology is having and will have on the future of the practice of law and lawmaking. Wu addresses the ongoing and long-time debate over the profile of law professors as practitioners or intellectuals. (p. 440) In addressing the costs of change, Dean Wu asserts that the most expensive and most worthwhile change we have “recently” made in legal education is clinical legal education.

Every year I find fascinating the articles and essays published by the Toledo Law Review in their special “deans” issue. I am surprised that many people do not know that this annual symposium exists. It is a good read that should not be missed.

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What’s going on in California? “TFARR- recommended” 15 credits of competency training

Posted on August 13, 2015 by Mary A. Lynch

For those who did not closely follow the California State Bar debate on the requirement of 15 credits of competency training for bar admission (the work of the Task Force on Admissions Regulation Reform, or “TFARR”), I summarize the current status.  (Although I am currently co-prez of the Clinical Legal Education Association, known as CLEA, this post is not written with that hat on.)  This is my own thinking, albeit, informed by the excellent work of the CLEA Advocacy committee.

The TFARR process was two-staged, over a three year period, with opportunities for public comment throughout. CLEA  participated in that process and submitted five separate comments on the proposals that are available at http://www.cleaweb.org/advocacy under “Briefs and Other Advocacy” (documents 4-8).

In the end, TFARR recommended 15 credits of competency training which can be achieved in a variety of ways (in addition to how experiential credits can be earned under the new ABA regulations), and which include six credits of summer work. You can read the TFARR Phase II Final Report  at: http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/2014PublicComment/201411.aspx

The process was complete in November, 2014, with final TFARR recommendations to the State Bar Board of Trustees (that responded to public comments) and unanimous adoption by the Board: http://board.calbar.ca.gov/Agenda.aspx?id=10891&tid=0&show=100008800&s=true#10013881 (agenda item 113). The TFARR Phase II FInal Report represents a compromise based on extensive input.

Lately, some confusion has arisen because of a letter posted to the AALS website authored by a non-standing committee of Deans.  The confusion arises because:

  1. Neither AALS nor this special Dean’s committee ever participated in the two stage TFARR process and so appear to be sort of “johnny come latelys, ” and
  2. The letter mistakenly focuses on an earlier draft of the final proposal failing to recognize the compromises already reached in the final proposal.

I understand that there are efforts underway to correct the confusion which makes me happy since the Deans’ letter is signed by two people whom I have long admired in a variety of contexts.

Other blogs are already exploring the 15 credit  proposal and its interesting and creative approach. For example,   “Kudos to California”  What do our readers think?

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What Makes Your Subject Distinctive?

Posted on July 17, 2015 by glesnerb

As law schools continue to develop their learning outcomes, an important question we all should consider is, “what makes my course distinctive?”  For example, in my research on assessment in legal research courses, I was struck by how much the analytical and problem solving skills developed by legal research instruction are the same as those developed by many other courses in the law school curriculum.  That led me to ask, “what makes legal research instruction distinctive?”  The answer was not simply, as an outsider might suggest, that legal research classes teach tools for finding law (digests, Westlaw, etc.).  Rather, I was struck that legal research instruction is distinctive in the extent to which an effective legal researcher must have an appreciation for the power of taxonomies, must exercise imagination in the context of realistic boundaries of time, cost, and purpose, must be able to ask for help, and must develop strong metacognitive practices (to continually question “is this process working?”).  The difference is of degree rather than kind of course, but it is a distinctive difference nonetheless.

Given the narrow focus of legal education, it seems that this question of distinctiveness or “value added” is the most critical question I can ask in planning my courses.  Not that the distinctive outcomes of my courses should be the sole, or even dominant outcomes.  Legal education outcomes require an iterative process and cross-curricular experiences for students to become competent and to enable transfer of learning to new settings.  Yet, understanding what makes my outcomes distinctive forces me to justify my outcomes and consider their connections with other law school outcomes.

So what makes my outcomes in Professional Responsibility distinctive?  Certainly the identity of the anticipated uses of the doctrine we are learning leads me to choose to emphasize professional identity formation outcomes as important if not distinctive.  In most law school courses, students are learning the law to serve others and are encouraged to use, interpret, and advocate about the law to achieve a client’s objectives.  In Professional Responsibility, the students will be using the law to advise themselves.  My outcomes include expecting that students will be able to clarify their observational standpoint when considering issues of professional ethics; recognize that self interest clouds judgment and ways to gain more objectivity; and differentiate the approaches to interpretation of law that one might use to advocate for a client regarding past conduct from approaches that are wise, ethical, and effective when interpreting the law to guide our own future conduct.  Finding effective methods to assess students development of these perspective is a challenge but I have found that simply asking students to read cases of attorney discipline and ask, “what went wrong with the attorney’s thinking?” is a good place to start.

What makes your course outcomes distinctive?  How has that led to distinctive assessment practices?

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Building on Best Practices now available as eBook

Posted on July 9, 2015 by dmaranville

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

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Inner Development, Community, Social Justice (Concurrent Session, AALS Conference on Clinical Legal Education)

Posted on May 21, 2015 by dmaranville

Last, but not least, in this series highlighting lessons from experts in other disciplines relevant to how to navigate the chaotic “new normal”  in legal education: Thursday’s concurrent session organized by Tennessee’s Paulette Williams:  “A Commitment to Inner Development: Connecting the “New Normal” with Clinics’ Social Justice Mission”.

The session brought  Edward Groody and Timothy Dempsey from the Community Building Institute in Tennessee.  The Institute helps social service and criminal justice organizations become more effective by training participants in community building practices.  Taking an evidence-based approach built on motivational interviewing, trauma-informed care, and pro-social supports, community building is a “highly experiential process that helps participants remove barriers to communication and unlearn unproductive attitudes and behaviors.”

Groody began the session with a detailed overview of a four-stage process for building community:

  • Pseudo-community
  • Chaos
  • Emptying/Letting Go
  • Community

That process adds an important step — emptying/letting go — to Bruce Tuckman’s familiar “forming, storming, norming, performing” model of group formation.  My own interpretation of this additional,  third step is that it provides space for  participants to recognize,  and learn skills to address, the emotional issues that so often get in the way of honest connection with others.

Dempsey then shared powerful stories of how that process helps ex-offenders with post-prison re-entry,  allowing them to move past behavioral responses that may have seemed — and perhaps were — functional in their previous lives, but would block their efforts to move forward.   Or, to put it another way, this step acknowledges that in order to take advantage of education or employment opportunities, people need to let go of fears, resentments or trauma.  This is challenging work that is the foundation of many spiritual traditions, but can help build strong connections with others.

Time constraints prevented Paulette Williams from speaking in detail about how she makes use of this process in her clinical teaching work.  I hope she finds other forums for sharing those experiences and insights.

The insights of this community building process struck me as relevant not only to social justice and clinical legal education work, but also to faculty interactions within our law schools.  From another time and place, I well remember a year when every faculty meeting resulted in controversy, usually about something relatively minor that seemed to be a proxy for other, larger, but unacknowledged issues festering beneath the surface.    I suspect that many faculties are experiencing something similar as they operate  in the  current climate of uncertainty and change, too often getting stuck in the fear those conditions foster.  It’s  difficult for me to imagine applying this model in the typical law school environment.  But successfully moving through the “emptying/letting go” phase, as individuals and a group,  could be oh, so helpful!

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Lessons from “Counseling Our Students” (Mini-Plenary at AALS Conference on Clinical Education)

Posted on May 17, 2015 by dmaranville

At the recent AALS Conference on Clinical Education two additional sessions provided important insights from experts iin other disciplines on how to operate effectively in the midst of the current period of change in legal education.

Wednesday;s Mini-Plenary on Counseling Our Students In the New Normal included an inspiring guest speaker who was even more impressive as a listener.

Moderated by Mercer’s Tim Floyd, the session began with a helpful overview of the current state of the job market (bottom line:  recovering, slowly) by Abraham Pollack, GW’s  Professional Development dean. But the centerpiece of the session was Carolyn McKanders, Co-Director and Director or Organizational Culture, Thinking Collaborative and, not incidentally, mother of Tennessee’s Karla McKanders,

Carolyn brilliantly demonstrated “cognitive coaching” (check out the app!) in an unscripted coaching session that allowed Mary Lynch (yes, that Mary Lynch,  Editor of this blog) to expand  her acting career into improv. The session was designed to help Mary think through her goals and approaches in counseling students on career development in an environment where predictable and linear career tracks are no longer the norm.

After the role play Carolyn summarized three keys to cognitive coaching:  pausing, paraphrasing and posing questions (with a rising inflection that communicates curiosity and openness, not control or credibility).  The beauty of this approach is that it helps the individual “self-monitor, self-analyze, and self-evaluate“.

The session certainly reinforced three lessons that clinicians should know; after all, a foundational goal of clinical legal education is fostering reflection, and most of us teach interviewing and counseling, at least to some extent.

  • First, the power of listening.  In a world of fast talking, sometimes monologue-happy, often living-in-our-heads law professors, so easy for this lesson to “go missing”  if we ruminate worriedly, trying to cope with the new normal in faculty and committee meetings and informal conversations.
  • Second, the value of paraphrasing for understanding to ensure accurate communication.
  • And finally, the importance of  founding our questions on authentic curiosity — listening in order to understand, not to counter an argument.

In a constantly changing world, where so many verities are in play, it’s too easy for us to get stuck in fear and suspicion.  Though the stated rationale for the mini-plenary was to help us counsel students, for me it spoke at least as powerfully to how we can most effectively interact  with our colleagues.  And, perhaps, “counsel” ourselves.

In the next, and final post of this series, I’ll discuss a Thursday concurrent that linked “inner development” with community building and social justice.

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Disruptive Innovation & the AALS Clinical Conference

Posted on May 12, 2015 by dmaranville

One of the highlights of last week’s AALS Conference for Clinical Law Teachers was the closing talk by Michele Weise, Senior Fellow, Education at the Clay Christensen Institute for Disruptive Innovation. (A big shout out to Michele Pistone for her role in making that talk happen!) I was superficially familiar with the  disruptive innovation thesis, but Weise’s half-hour talk brought to life its relevance to the current moment in legal education in a way that previous exposure had not. Disruptive innovations that shake up a market or industry often follow a predictable pattern, it is argued. The established players in the market target a higher end client base and compete on quality, improving the product and selling it at a high margin.  This leaves a significant, low-end segment of the market unserved. New entrants provide an inferior product to these unserved consumers, and gradually improve the product and expand their market.  Poof go the established players. Think personal computers, print media, digital cameras, mobile phones . . . . Traditional higher education has long failed to reach a significant segment of potential consumers and the federal government’s shift from financial aid grants to student loans has greatly exacerbated that problem. Arguably, the stage is set for disruptive innovation and on-line technology may be the means to that disruption. The next step of Weise’s analysis was what really captured my attention. She noted that higher education currently serves many functions – transmission of content and certification of knowledge or skills; providing a safe space for young adults to mature socially; networking opportunities, mentoring and tutoring; research & dissemination of scholarship. These functions can be – and are being – disaggregated and provided more cheaply on line. Even the Harvards of the world are potentially at risk, according to Weise. Law schools have traditionally provided a generalist education.  As legal practice becomes more specialized, that educational model arguably serves to mask more specialized functions that could be disaggregated.  This is already being tried in my home state of Washington with our new Limited Licensed Legal Technician (aka/ Triple LT) program.  But lawyers also wouldn’t have to be trained as generalists.  As course offerings expand, the potential for moving away from the traditional generalist education does also.  Already,  this shows up in the transcripts of some of my students who are not necessarily taking the doctrinal courses that were considered foundational in my day.  Does this matter? Before hearing Weise’s talk, during the Law Clinic Directors Workshop, I raised the question “how much doctrine do we need to teach?” Good lawyers, I observed,  have extensive doctrinal knowledge.  (Of course, law schools historically haven’t taught doctrine in connection with the experiential anchor points that many of us need in order to retrieve that knowledge for practice.)  Elliott Milstein later challenged the importance of doctrinal knowledge,  observing that his clinic students handle their cases well regardless of whether they have taken relevant doctrinal courses.  Often true.  And yet . . .  The counter-example that I didn’t have a chance to share:  one of my  students  recognized that we could challenge a new unemployment compensation statute on the ground that the subject was not properly included in the title of the legislation.  A classic case of issue spotting that came about solely because he was taking a Washington State Constitutional Law course.  (I didn’t recognize the issue.) A reminder that the ability to issue spot is valuable.  But  . . . state constitutional law isn’t a classic “foundational” “bar course”. This issue spotting was strictly serendipity – a traditional doctrinally-focused course load would not have accomplished this result. I’m still struggling with the generalist/specialist question.  But it leaves me thinking about the potential for niche curricular innovation aimed at students – often older ones who understand their talents, passions and life goals – who come to law school with a commitment to a practice area like criminal law, immigration law, or business law.

  • Are there enough of those students to justify a legal education targeted at those niches?
  • If so, can we focus their education in a way that really prepares them for their specialty?
  • And, can we at the same time identify a “sweet spot” of “just enough” generalist knowledge to accompany that specialization?  One that provides a foundation for passing the bar exam and the analytical and research skills to master new areas of the law, but does not take up the bulk of a three year curriculum?

I don’t know the answer to these questions.  But they strike me as worth investigating.

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A Survey Instrument for Cultural Sensibility Learning Outcomes

Posted on May 4, 2015 by andicurcio

As law schools begin to grapple with identifying and measuring law student learning outcomes, cultural sensibility [a.k.a. cultural competence] should be on the learning outcomes list. A validated survey instrument has been developed to help measure some aspects of cultural sensibility learning: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2451300.  The instrument helps measure students’ understanding that we all have multifaceted cultural backgrounds, experiences, and biases that affect how we perceive and analyze legal problems and how we interact with clients and colleagues.

As lawyers, we must recognize and grapple with our own biases and stereotypes, as well as the influence cultural factors and systemic racism have had, and continue to have, upon the US legal system. As I note in a forthcoming Nevada Law Journal article: “While racial categories are artificial constructs, there is a long and ongoing history of real differences in the treatment and, therefore, collective experiences of “racial” groups. Those experiences influence how we perceive and assess facts, attitudes, legal problems and legal processes.”

An integral part of legal education involves developing law students’ abilities to identify their own cultural biases and helping future lawyers understand how those cultural perspectives and biases impact their legal analyses and interactions. There are many learning outcomes that contribute to law students’ cultural sensibility knowledge, attitudes and skills, many of which may be measured in various experiential learning and doctrinal courses.

The survey instrument measures some over-arching cultural sensibility learning outcomes, such as recognizing that: 1. one’s own cultural experiences affect how one views the legal system; 2. legal training in “rational thinking” does not insulate lawyers and judges from our own cultural biases; 3. subconscious cognitive processes hinder our ability to identify when we are acting based upon biases and stereotypes, and 4. we need to withhold judgment about others’ behaviors.

The survey instrument may be administered to students as they enter law school and shortly before they graduate. While we did not administer the survey to the same cohort of law students as they entered and then graduated, we did administer it to 309 entering law students and 281 upper level students. Amongst those students, we found that upper level students had a better understanding that one’s own cultural experiences affect how one views legal problems and interacts with clients. To the extent that cultural sensibility education requires that baseline understanding, the survey instrument is one way to measure some aspects of cultural sensibility learning.

At this June’s AALS Workshop on Measuring Learning Gains, Professor Raquel Aldana and I will continue the dialogue on how else one might measure cultural sensibility learning outcomes across the curriculum.

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Using Portfolios for Assessment

Posted on March 10, 2015 by Michele Pistone

A few years ago I started to use student portfolios as part of the end-of-semester evaluation of my students. I have found that portfolios can be an excellent vehicle both for the student’s own self-reflection and for providing summative feedback.

Here is how I use them. At the end of the semester, I ask each student to prepare a portfolio of the written work the student did over the course of the semester. In doing so, each student is asked to read the first and final version of the principal documents that the student drafted during the semester (in the context of my cases, these include the client’s affidavit, any witness affidavits and a brief).

I also ask them to bring the drafts and final versions to the meeting. During the meeting, each student is expected to have reflected on his/her writing, considered how his/her writing progressed over the semester, and point out 2-3 improvements that he or she made. They are also expected to use the drafts to illustrate the progress.

My students find that the act of assembling the portfolio and rereading their own written work serves as a reminder of how far the student has come in crafting a legal theory or developing a factual account of the relevant events or even about some of the obstacles that he or she encountered along the way and how he or she managed to overcome them. I like this method of assessment because it is mainly about self-reflection. Each student in learning from his or her own work. The portfolio is simply a vehicle to make that learning tangible. It is a wonderfully, tangible way to show someone how much he or she has improved over the course of a semester.

I was recently speaking with Larry Farmer from Brigham Young University School of Law. He mentioned that he uses portfolios too. But in his case, they are videos. At the beginning of his course on Interviewing, before any class has been conducted, he asks each student to conduct a mock interview, which is videotaped. The students then spend the semester learning about, practicing, and refining their interviewing techniques.

Then, at the end of the semester, they are asked to review that first interview and to reflect upon their own improvement over the semester. Like the written portfolio that I use, this one also uses a student’s own work to demonstrate learning and progress. I plan to try it next semester.

Are there other ideas out there? Do you use portfolios? If so, how? How can I improve my process? I’d love to hear your thoughts in the comment section below.

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Law Students Need Mindfulness Training

Posted on March 8, 2015 by sgeorge326

A study published in the journal Science found that a majority of participants would prefer to give themselves mild electrical shocks, rather than be alone with their thoughts for 15 minutes.

Last summer, a tourist in Melbourne, Australia was so engrossed in reading Facebook on her smartphone that she walked off a pier. She couldn’t swim, but thankfully a passerby was paying attention and came to her rescue.

Reports like this no longer seem surprising, given the widespread debate over the distracting effect of the instant availability of information. The smartphone is most often blamed, as everyone from kindergarteners to grandparents seems to have one; checking email, texting, playing games, often at the same time. In a law review article and past blog on the topic of teaching this “smartphone generation” of law students, I discussed how the constant stream of information available and accessed by these students has weakened the part of the brain needed for deep focus and concentration. One antidote to this distraction is mindfulness training.

While mindfulness training is often associated with meditation, its purpose in education can be more broadly seen as allowing students to learn to focus. It is currently being taught in a small number of law schools as a stand-alone class (for credit or pass/fail), part of a clinic, simulation, or professional responsibility class, or part of an orientation or well being program within the law school. But mindfulness can easily be incorporated into any law school class, and needn’t be seen as requiring any special tools or training.

This year in my legal writing course, for example, I forced my students to focus and work on their memorandum mindfully. With phones and laptops put away, I spread the students around the room and allotted 30 minutes to work on a particular portion of their memorandum. I gave them a checklist to keep them focused on the task and no talking is permitted. After they completed their work, I asked them to reflect on what they were able to recognize in their writing that they may not have seen before. Many commented that 30 minutes felt like a long time and they could not believe how much they accomplished. I then asked them to reflect on how it felt to work in this focused manner, and compare that to how they might usually work—surrounded by people, technology, and an endless array of possible distractions. This end of class reflection was important because it encouraged the students to be mindful of their study patterns and habits. While I had lectured to them about working free of distraction, this exercise forced them to feel that focus.

There are many resources available in print and online with more information on mindfulness and exercises that can be used in any classroom. I encourage you to consider mindfulness—it not only benefits students, but allows for more mindful teaching as well.

-Shailini Jandial George

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Teaching “Doing” as a Lawyer During Law School

Posted on March 2, 2015 by Steven Friedland

In doctrinal courses, we are used to teaching students to think critically, an activity often referred to in the legal education domain as “thinking like a lawyer.” This thinking component is central to what lawyers do. But Lee Schulman, a co-author of the Carnegie Report (2007) and author of “Signature Pedagogies in the Professions,” in Daedalus 52 (Summer 2005)and a former professor at Stanford U. has observed that preparing students for the professions requires not only thinking critically, but also acting and performing with integrity. (Integrity is a nice way to describe ethics, using new vocabulary to wrap lawyering in a high standard.)

The ideas of action and performance are not new, but when held up alongside critical thinking, they create a nice trilogy of legal education outcomes. Acting is how lawyers interact with others, prepare, and behave while working, but not performing. Performing is when a lawyer is engaged in a law practice activity requiring competency, such as oral argument, examining a witness at a deposition or trial, or mediating a dispute.

Now that I have provided some background, my essential point in this brief blog post is as follows — If acting and performing are so important, we should be teaching students to do these things throughout law school, starting on the very first day of the first year of school, woven throughout doctrinal courses as well as clinical and legal writing offerings. Learning science supports this integration. In learning science, it has been shown that engaged learners perform better. Creating deliverables is a way to engage students in a positive fashion. Deliverables such as, “Do a direct examination of the plaintiff in this case,” or “Take a picture of an easement on real property and explain why,” or, “Write down ten questions you would have of the plaintiff in this case if you were able to ask them,” are just some illustrations of deliverables. Role-playing generally falls within the rubric of a deliverable, since students must give a performance as an attorney, judge, witness or other person – just not as a student.

Yet, it is hard to get out of our own way. After teaching for a long time, we develop habits that are difficult to shake, and taking risks with new approaches provides its own set of issues as well. But if legal education is really transitioning students through school into practice – and not just teaching discrete substantive segments – we probably ought to try doing something like this, even if only as a Beta test.

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