Round and Round We Go: The Stages of Rounds applied to a AALS Clinical 2021 Lightning Session

By Cori Alonso-YoderSherley Cruz, Vanessa F. Hernandez

Stage 1: Description of the Issue

“In almost every small group of clinicians at clinical conferences, someone raises the subject of ‘improving rounds.’”  – Elliott Milstein & Sue Bryant, Rounds: A “Signature Pedagogy” for Clinical Education?   

While this year’s virtual AALS Clinical Conference differed from prior years, clinicians’ desire to maximize rounds remains a constant. These facilitated classroom discussions are what Professors Elliot Milstein and Sue Bryant called a “signature pedagogy” for clinical legal education. Indeed, rounds figure as a meta exercise of clinical education. By giving up total control, rounds may feel challenging or unpredictable. Yet, year after year, rounds remain a principal teaching tool. Because, as observed by Milstein and Bryant, “when the conversations go well, they are precious sources of learning.” 

In 2019, a group of us compared notes to discuss their use of rounds.[1] We learned that we had similar approaches, but that there was also great flexibility in our practices of rounds. At the Rounds on Rounds Session, we hoped that by sharing our experiences we could learn from one another while also amplifying different models of rounds. To our delight, 136 conference participants also wanted to learn new ways of teaching rounds.

Stages 2 & 3:  Questions to Clarify and Problems Identified

Our initial goals for the AALS lightning session were to 1) introduce the concept of rounds; and 2) to share different approaches to rounds. To seek feedback from our participants, we used a Google form survey to learn more about our audience’s familiarity with rounds (especially the “ traditional Milstein/Bryant five stages”), while also soliciting ideas on different approaches. In particular, we sought to introduce the concept of rounds for student learning and as a tool for clinicians to use in their own development as supervisors and educators. 

From our survey, we learned that over 90% of our 69 respondents currently used rounds. Of these, the vast majority (more than 85%) reported using rounds in discussion with students about client fieldwork. Only about 30% of respondents mentioned using rounds with colleagues to discuss supervision of students. Almost 10% of respondents, 7.2%, responded that they didn’t use rounds or were unsure if they used rounds.

Figure 1. Responses about rounds modes used by participants.

The survey also asked respondents to identify their priorities for learning within the session. Most of the respondents, 63.8%, indicated that they were most interested in learning about maximizing their use of rounds to discuss lawyering skills.

Figure 2. Responses about priorities for learning in the lightning session.

These responses helped us focus our discussion for the remaining time and to clarify our goals for the session.

Stage 4: Goals Clarified

Based on the responses from students, we returned to our dual goals of 1) introducing rounds as a teaching tool; and 2) sharing practices for rounds.

Stage 5: Lawyering Strategies Exchanged/Proposed Solutions

To set the stage for the nearly 10% of respondents not presently using rounds, we presented some of the foundational concepts related to use of rounds.

Figure 3. A slide with the “Milstein/Bryant” rounds structure from the lightning session.

Participants took part in a How Do You Use Rounds Google Doc “quick write” to share their perspectives on what is working in rounds and where they experienced challenges. Having 150 participants trying to access a Google Document at once “crashed” the shared doc. Despite the technical difficulties, we were able to spark a rich discussion from the quick write. We took a fresh look at the first few stages from a cultural, racial, gender, and other differences perspective, which provided an opportunity for conversations about bias, stereotypes, and their impact on third parties.[2]  

Stage 6: Lessons Learned

Perhaps it is poetic justice that a 30-minute lightning discussion on rounds with nearly 150 participants would feel rushed and incomplete.

Many clinicians in the quick write exercise expressed their feelings of struggling to find time for rounds, or properly developing the conversation. We, the presenters, faced similar struggles in getting out all that we hoped to share with our session, but were encouraged by the enthusiastic responses from our colleagues.

Among the helpful conversations that developed with participants after the formal conclusion of the Zoom session, we identified the need to develop materials to foster student led discussion and participation. One participant asked for readings to provide to students in advance of rounds. Another participant wanted to learn more about one of our practices in requesting students prepare a pre-rounds memo.

This session confirmed that challenges and opportunities with structuring rounds will likely remain a topic to which we continue to circle back. We look forward to the next “go round” on this topic.


[1] This group included Cori Alonso-Yoder,  Sherley Cruz, Vanessa F. Hernandez, Nadiyah Humber, and  Katie Ladewski Jarosz.

[2] This innovation was credited to Professor Alexander Scherr at the University of Georgia. The exercise was particularly resonant as an intervention given the conference’s larger theme of “Recognizing Our Past and Building for Our Future.”

Implementation of the ABA’s New Experiential Training Requirement: More Whimper Than Bang

By: Robert Kuehn, Washington University School of Law


When the ABA adopted a new experiential training requirement in 2014, there was hope it would spur law schools to significantly change the way they prepared students for legal practice. The new six-credit requirement in ABA Standard 303(a)(3) was less than the fifteen credits proposed by some educators and did not include a mandate for a law clinic or externship experience. Nonetheless, the six credits were an improvement over the ABA’s previous “substantial instruction” in professional skills requirement.[1] But data from the initial implementation of the new experiential requirement suggest its effect has been more of a whimper than the bang some hoped for, with little evidence it has spurred legal education to enhance the ability of students to get hands-on training in professional skills.

            Law schools are required to report annually to the ABA on the number of seats simply “available” to students in law clinic and simulation courses and the number of field placement/externship positions actually “filled.”[2] Data from the first two years of the new six-credit requirement in 2019 and 2020 show no increase in the positions available to students in clinics or simulations and even a decrease in actual enrollment in field placement courses, when normalized to address fluctuations in nationwide law school enrollment. While some law schools have made important changes to their curriculum, the graph below indicates that, on average, schools have not reported positive changes in law clinic, field placement, or simulation data since the ABA’s adoption of the new experiential standard in 2014. The number of clinic seats available per J.D. student in 2014 was 0.27 and still only 0.28 in 2020; field placements decreased from 0.26 in 2014 to 0.24 in 2020; and seats available in simulations likewise decreased over the six-year period from 1.22 to 1.12 per student.


  Source: ABA 509 Required Disclosures at http://www.abarequireddisclosures.org/Disclosure509.aspx

            The New York Court of Appeals followed the ABA in 2015 with its own new skills competency standard for bar candidates, proclaiming that “the goal of ensuring effective, ethical and responsible legal services in New York requires more than what the new ABA Standards provide.”[3] Commentators on the proposed New York standard argued it simply mirrored the ABA’s requirement, with some additional paperwork, and would not improve the skills training of students. The graph below shows that the New York competency standard, indeed, does not appear to have spurred New York’s law schools to noticeably enhance their professional skills training of students or to provide more training than schools in states following only the ABA requirement. Although students at New York schools were offered more opportunities to enroll in simulation courses lacking the supervised experience of handling the complexities of real-life clients, opportunities to participate in a law clinic were unchanged and field placements decreased.


Source: ABA 509 Required Disclosures for 15 New York law schools

            Data from the recent Center for the Study of Applied Legal Education (CSALE) 2019-20 Survey of Applied Legal Education of 95% of law schools also show little measurable effect from the new experiential training standard.[4] Schools reported no increase in the median number of law clinic courses offered to their students since the prior 2016-17 survey and no increase in the percentage of students that graduate with a law clinic experience. Similarly, there was no reported increase in the percentage of students that graduate with an externship experience, with student demand for externship courses in 2019-20 up slightly from the last survey yet significantly less than externship demand in 2014 when the new standard was adopted. And, the percentage of schools requiring each J.D. student to participate in a law clinic or externship course as a condition of graduation only increased marginally from 20% in 2016-17 to 23% in the 2019-20 survey.

            Two thirds of schools in the CSALE survey did report making some changes to their curriculum in response to the ABA’s new experiential requirement, with almost half reporting the addition of a new law clinic, field placement, or simulation course(s), and one quarter of schools reporting increased slots available in an existing experiential course(s). A 2018 survey by Allison Korn and Laila Hlass also found that about two thirds of schools reported an expansion or enhancement of their course offerings in light of the ABA’s new experiential course requirement.[5]

            In both surveys, however, significant numbers of schools simply restructured existing courses to meet the experiential training definition, including merely relabeling parts of the first-year required legal writing course as “experiential” or offering a one-credit simulation component to a doctrinal course. Because the survey questions did not ask separately about law clinic and externship courses but grouped them with non-clinical simulation courses, the data do not reveal if legal education has increased live-client clinic or externship opportunities for students or simply adjusted to the new requirement in other ways. In the 2019-20 CSALE survey, there was a slight increase of approximately 5% in the reported percentage of students that participated in a law clinic or externship prior to graduation. But fewer than 20% of schools attributed any increase in clinic or externship demand to the new ABA requirement.

            To the extent the ABA’s new six-credit experiential requirement was intended to provide law students with more meaningful hands-on training in important professional skills, its own data do not show that intended result. In addition, surveys of schools on their implementation of the new training requirement do not show significant gains in skills training as a result of the new accreditation standard.

            It is time for the ABA to address these deficiencies by at a minimum requiring schools to report actual enrollments in law clinic and simulation courses so that the ABA can truly judge the effect of its requirement and prospective applicants to law schools will not continue to be potentially deceived by reports of ethereal “available” law clinic opportunities.[6]

            Yet students, and the clients they will soon represent in practice, deserve more than just enhanced reporting requirements. The ABA’s six-credit experiential requirement remains far below the skills training other professional schools require of their students.[7] Two recent studies on legal education have highlighted the need for greatly enhanced skills training, including mandatory clinical training prior to bar licensing.[8] The ABA should heed these calls for reform and revisit the proposals for fifteen-credits of experiential coursework and a mandatory, live-client clinical experience for all J.D. students.


[1] An ABA memorandum explained that “substantial instruction” equaled only one credit of lawyering skills instruction, which could be in a simulation course. Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dick. L. Rev. 551, 574 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129111.

[2] Prior to 2017, the ABA also required schools to report the actual number of students enrolled in law clinic and simulation courses, not just seats available. However, the ABA determined that asking schools to report actual enrollment, when the accreditation standard only requires “substantial opportunities,” was unnecessarily burdensome and now only requires schools to report the number of clinic and simulation opportunities that are potentially available to students.

[3] New York Court of Appeals, New Skills Competency Requirement for Admission to the Bar (Dec. 16, 2015), at

http://www.courts.state.ny.us/ctapps/news/nottobar/nottobar121615.pdf; Task Force on Experiential Learning and Admission to the Bar: Report to Chief Judge Lippman and the New York Court of Appeals 3 (Nov. 2015), at http://ww2.nycourts.gov/sites/default/files/document/files/2018-05/Experiential-Learning-Admiss2Bar-Report122015.pdf.

[4] Center for the Study of Applied Legal Education, 2019-20 Survey of Applied Legal Education (2020), available at https://www.csale.org/#results.

[5] Allison Korn & Laila L. Hlass, Assessing the Experiential (R)Evolution, 65 Villanova L. Rev. 713, 731-33 (2020), available at https://digitalcommons.law.villanova.edu/vlr/vol65/iss4/1/.

[6] One school with enrollments of approximately 300 students per class claimed in its 2018 509 Required Disclosure to prospective applicants over 1,500 seats available to students in its law clinics. Another school with a class of 100 reported over 300 clinic positions available, yet only 50 students actually enrolled in those purported available positions.

[7] See Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denv. U. L. Rev. 1, App.. A (2014) (documenting one-quarter to one-third required credits in skills training for other professional schools), available at. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042.

[8] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 75-76 (2020), available at  https://iaals.du.edu/sites/default/files/documents/publications/building_a_better_bar.pdf; Joan W. Howarth & Judith Welch Wegner, Ringing Changes: Systems Thinking About Legal Licensing, 13 Fla. Int’l L. Rev. 383, 430-31 (2019), available at https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=2220&context=facpub.


Dean Darby Dickerson — on Equity, Security, and Status

Many of us were inspired to hear AALS President Darby Dickerson, Dean, UIC John Marshall Law School speak about “caste”, “candor”, and “change” during her address at the January 2020 Annual Meeting.

In this new article, first posted in the AALS Newsletter, she follows up with some worrisome data from the 2019-2020 CSALE study, works through potential harms to schools and students, and issues a call to action to address issues of pay equity, security, and status.

We value the conversations and discussions that often happen live and informally at in-person conferences as we share our progress (or lack thereof). So, dear readers, please let us know in the comments about any promising practices or initiatives at your schools. How are leaders addressing pay equity, security, and status in an era of hiring freezes and financial insecurity? What changes are you working toward?

Warmly,

Davida and Melanie

Important New Report on Essential Lawyering Skills

Ohio State Professor Deborah Jones Merritt and Institute for the Advancement of the American Legal System Research Director Logan Cornett just published an important report, Building a Better Bar: The Twelve Building Blocks of Minimum Competence, based on insights from 50 focus groups.

They found that minimum competence consists of 12 interlocking “building blocks,” including the ability to interact effectively with clients, communicate as a lawyer, and see the “big picture” of client matters.

They propose 10 recommendations that courts, law schools, bar associations, bar examiners, and other stakeholders should consider in their efforts to move towards better, evidence-based lawyer licensing.

These include requirements that candidates for licensure should be required to complete coursework that develops their ability to interact effectively with clients and negotiate.

In addition, they recommend that candidates should be required to complete coursework that focuses on the lawyer’s responsibility to promote and protect the quality of justice and includes closely supervised clinical and/or externship work.

They include recommendations to use performance tests and restrict use of essay and multiple choice exams.

Here’s a summary of the report.  You might share it with your deans and curriculum committee chairs in case they haven’t seen it.

This brief summary doesn’t do justice to the insights from the report.  I’m sure that faculty are working like crazy in this year of living dangerously, especially at this point in the semester.  You might find it worth your time to spend an hour reading this report when you feel like procrastinating.

The report doesn’t include all my radical ideas for a negotiation school, but it clearly recommends moving in that direction.

I will discuss these ideas with Peter Robinson and Sukhsimran Singh in an upcoming event, They Should Call It Negotiation School, Not Law School, sponsored by the Pepperdine Caruso School of Law Straus Institute for Dispute Resolution.  It will be on Tuesday, November 10, at 1 PT, 2 MT, 3 CT, 4 ET.  Come join the conversation.

“Take-Aways” from Day 1 of Drexel Conference

Over 1,000 legal educators are taking part in a two day conference “Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus,”  hosted by Drexel Law School and University.  Brief opening plenary remarks were made by Northwestern Law Professor Daniel Rodriguez who cautioned against “virtue signaling” noting that today on May 26th, we don’t know the choices students, faculty and others will make in August.   He called for legal educators to work across law schools to engage in “Collaboration on Steroids!”

After very brief “framing” discussions of questions, participants were assigned into scores of breakout groups.  Today’s Roundtable topics included:

Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience

Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances

Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Each breakout group recorder took notes which will be compiled into a report.  The hope is to make the lessons from the conference useful this summer as legal educators re-imagine law school operations and adapt our teaching methods and designs to meet student and public health needs.

I was able to participate in Roundtable 1 and 3 and found the discussions useful in thinking about my summer course redesign, the needs of our Justice Center, and the different way different schools can adapt and innovate. I jotted down a few “take-aways:”

General 

  • Time and Space are no longer the same as they were pre-pandemic.
  • To be a good teacher virtually, just like teaching in residence,  you have to be YOU!
  • What parts of your teaching are MOST important to be Synchronous? and how do we move other parts to be asynchronous?
  • Who could we record now (besides ourselves!) that we can use for asynchronous learning this FALL .. For e.g., share a hypo with other faculty in your department, or other subject matter experts from other law schools, or practitioner experts and record their reaction to a hypothetical that you can assign students to review after having discussed the hypo in breakout groups and  reported back.
  • If we are socially distanced with masks, and spread apart in the classroom, and we are teaching both virtually (through the class streaming or recording) and in residence at the same time, what works for that kind of socially distanced teaching? Might Zoom sometimes work better?

Community Building Ideas

  • ESPECIALLY for 1L’s in building community – Use Zoom questions for registering to ask students community building questions regarding hobbies
  • Start now to create break out rooms for 1Ls pre-assigning over the summer with asking of human questions.
  • Opening up Zoom 10 minutes ahead as if you are standing by podium and can be asked questions
  • Reframe the week – conversation starts on chat or CANVAS before class and continue  into and after class. 
  • Offer off class opportunities for virtual tea, coffee, happy hours to discuss what’s happening with students generally or what’s happening in the world

Experiential

  • Take Advantage of this moment.  Clinics and experiential courses could serve as important front line workers for the unprecedented need for legal services.
  • How do we overcome barriers to actually get to the people in need and to get them what they need?
  • How do we teach students to be community and client-centered if we are not in the community but physically or socially distanced?
  • How do we prepare students and ourselves to perform competently in the world of virtual courts and lawyering when the rules, protocols and comfort level with the virtual differ across kind of state and federal courts and among different judges?
  • How do we build the people-centered core of clinical work that helps students develop skills, values and networks in interpersonal relationships?
  • How do we resource our students and clients for virtual legal practice?

Lots to chew on and looking forward to hearing more tomorrow!

Is Mandatory P/F An Opportunity to More Accurately Assess Competency to Practice Law and For Bar Admission?

As our knowledge of COVID19 and its impact becomes more extensive each day, each workplace, profession and community is facing some common and some unique questions. Those working on the front lines in hospitals – such as several of  my relatives in NYC and NJ – are experiencing the kind of trauma, shortages, emotional overload and duress that is usually experienced in wartime. It can only be weakly imagined by the rest of us.   For those of us not experiencing  people suffering and dying in front of us on a daily basis, some less horrific choices are before us:  How do we modify “business as usual”?  How do we evolve and adapt with each days new tsunmai of information and data?  How do we support our best selves and our core values in this historically momentous time on our shared planet? 

Before turning to the topic of grading and assessment, I want to pause to give a shout-out to my home institution. Our multi-talented leader Dean Alicia Ouellette has been holding  community town halls every day since Friday March 20th. (BTW Dean Ouellette  just shared on Facebook  that she had been suffering from “presumptive COVID 19” fever and symptoms but thankfully is now symptom free). During our daily town halls, my faculty colleagues and I have expressed our wonder and gratitude for the  character, resilience and grit of our law students who are balancing so much right now, and facing so many financial, tech-related, health and extended family burdens. Our students’ engaged and forgiving response to “tech-curious but not necessarily tech-savvy” teachers and their community-minded empathy for those hardest hit keeps the faculty motivated and inspired.

One of the COVID19 decisions for legal educators involves whether and how we assess and sort — which in reductive  vernacular means “grade and rank.”  Maintaining appropriate expectations, options, rigor and excellence in law teaching  may assume primacy for those  who have been long focused on ensuring that law students receive real value for the time, talent and treasure they expend on law school.   For others focused on fairness in law placement,  transparent employer signals about how they will view Spring 2020 legal education may be most influential.  For those concerned about our profession’s  reputation for lack of wellness and lack of diversity, those concerns are elevated at this moment when those least advantaged are most hard pressed.  For those struggling with equity, there are so many permutations and consequences of COVID19 – whichever choice a school makes – that voting faculty could become as immobilized as Chidi Anagonye on THE GOOD PLACE. (BTW Good idea for escape television for those who love philosophy or Kristen Bell).

On the other hand, might this be a moment to look for the opportunities for reform and improvement that only come when the status quo is disturbed and rocked to its foundations as is happening now.  Here is what I am thinking:

Might Mandatory P/F force educators and employers to admit that traditional law school grading and ranking is a misleading and reductive proxy for measuring potential success as a lawyer?

Could it force employers to use other ways to learn about the WHOLE STUDENT with all her strengths, gaps, and individual aptitudes including the situation she faced during law school?

Might it accelerate a move to a more qualitative than quantitative assessment of each law student? Or, at least might it prioritize learning which enables a school to assemble a portfolio of student recommendations ( demonstration of knowledge, skills, aptitudes, and professionalism)?

Foundational resources include of course Educating Lawyers, Best Practices in Legal Education, and Building on Best Practices: Transforming Legal Education in a Changing World, which also provide helpful wisdom points. In addition, looking back through the dozen or so years of this blog’s existence, there are lessons from which we can pull core knowledge and core values to assist in our continued educational deliberations at this turbulent time. 

CORE KNOWLEDGE AND REFLECTIONS

Valuing Legal Education over Sorting – For example, focus on the difference between assessment and grading.  Educating Tomorrow’s Lawyers conferences have brought employers, law schools, and legal education stakeholders together to tackle the disconnect between our current sorting systems (primarily used to help elite employers looking for a simple and reductive initial screening system) and the needs of society and most employers for competent new attorneys and the needs of students and the profession for fairness.

Focus instead on formative and evaluative assessment of law students and graduates

Focus on growth mindset, on reflection and learning from mistakes or experience

Recognize the limits and problems with GPA’s or LSAT scores to create a more competent profession with more able and diverse learners.

Acknowledge that the media and the academy is still stuck in a mindset that focuses on sorting methods rather than on better preparation and assessment of law students to serve clients and society.

Class rank does not predict who will become a competent, healthy and ethical lawyer

Effective Education includes

CORE LEARNING VALUES

Growth Mindset 

Inclusion and Diversity

Student-centered Learning  and the Introduction to the original Best Practices – “One of our basic tenets is that law schools should become more student-centered”

Wellness  

Collaboration and Innovation

Integrity 

Character 

Justice

Situational Excellence

There is a common theme here: P/F with alternative assessment information and measures should be seen not as temporary emergency expedients to “sort and rank”, but rather as long overdue components of a better educational program and more nuanced assessment paradigm.

I would love to hear your thoughts in the comments below.  I wish all our readers and citizens of our little blue planet moments of peace, love, safety, and compassion. May someone be kind to you today and let’s pay it forward.

 

 

 

The role of law school internships and supervisors

Today’s ABA Journal contains an op ed by a law student complaining that “law school  biases”  infringe on his right to free speech. Part of his critique involved a change in clinical policies after he wore a #BuildTheWall T-shirt to his internship.

“It had been expressed that we could wear T-shirts, and that has been the norm for my one year at this internship. I took extra precaution by bringing a light jacket to cover it up if a client came to meet with me unannounced.”

Others are better prepared than I to debate the issue generally of whether his claims demonstrate bias in higher education or bias on the part of the student. Others can ponder whether as educators, we are more apt to be triggered by exclusive versus inclusive messages since we value designing welcoming learning environments  and growth mindset .  However, I am not interested in this school’s particular behaviour or this student’s startling apparent nonchalance about how his clothing affected his colleagues, peers and the workplace.  Rather, I am more interested in developing a better understanding of the difference between an academic discussion about self-expression, and the responsibilities and possible repression of some self-expression that most lawyers and law students undergo when donning their professional role as legal interns do.

In my 30 years in clinical education, I have witnessed multiple instances of clinical faculty navigating the tricky balance in communicating professional norms, protecting clients and academic programs, and  respecting a student’s rights. Here are just a few issues we have addressed:

helping students without wealth obtain professional clothing

multicultural insensitivity to clients by both majority and minority students

student difficulty interacting with racist, homophobic and/or sexist, clients, judges, witnesses or opposing attorneys

Unlaundered clothes, smelly students

tight clothes (in men and women)

Clacking heels, scuffed shoes, or wearing clogs all day, every day, one’s whole life

Hair over eyes

dirty fingernails

evolving norms around piercing, black women’s hair, women wearing pants, more casual clothing, hair with color not found in nature

evolving norms around cell phones in local courts, e-mail

learning to use an ancient device called a telephone, to actually initiate a call or listen to voicemail

navigating support for transgender students in unwelcoming situations

drooping pants, belly showing, off the shoulder outfits, cleavage

loud talking, gum chewing,

informality in general which can appear as rudeness to supervisors

“distracting” jewelry

women students raising their voices in a question at the end of a sentence

…and I am sure you teachers can add many more. Feel free.

As a law professor steeped in clinical legal pedagogy and theory, I start the conversation with a few  questions:

  • what is the student’s “educational goal” for her academic/professional journey or experience
  • what is the student’s “lawyer goal” in the context of this internship, case or professional experience
  • what are the client’s/workplace’s needs and goals
  • what are the needs and goals of the community that supports you having this experience — the support staff, the court officers, your sister and fellow students, the local legal community (in this area I first must acknowledge my priorities and how current student behavior may close off opportunities for future students)

Then I discuss with the student how the student’s desired self-expression fits within those questions and priorities, and the possible disconnect from her goals and the programs.

This is my approach.  What do you do?

 

 

The Kids Are Alright

Regardless of your position on gun regulation, the work of the students of Marjory Stoneman Douglas High School in Parkland, the latest victims of yet another act of senseless gun violence, has to be inspiring, if not a little humbling.  They are putting adults to shame, literally and figuratively.  Their eloquence, passion, and even their social media smarts, are creating a moment of reckoning in this country.  The so-called “adults in the room” cannot hold a candle to these students’ capacity to mobilize, empathize, reach across difference, and move a nation to action.

Many seem surprised by this. As an educator who teaches many millennial law students, I am not.  I see my students accomplish amazing things, and am constantly inspired by their intelligence, willingness to roll up their sleeves, and go to work.  Moreover, as a former law student myself (although, admittedly, nearly three decades ago), I saw students work together in the face of resistance, and the stories I have read about the work of the Parkland students and the thousands more who have taken up this fight resonate and are reminiscent of work that has occurred and will continue to occur, carried out by eager and passionate students who won’t take no for an answer and continue to “Call BS” when necessary.

What we are seeing in action is perhaps the greatest student project ever undertaken.  From the outside looking in, it looks like the students are working collaboratively and sharing the spotlight among themselves and with others outside their immediate circle.  They appear incredibly supportive of one another, are pressing ahead in support of a cause larger than themselves though grounded in their personal experiences of tragedy, and are reaching out to others to build bridges across geographies and communities. They are accomplishing slow and steady wins that help to build momentum, sustain their energy, and create confidence to take on the next challenge. In short, they are doing all of the things that a group needs to do in order to produce meaningful change.

In academia, many fear the group project.  But it is how the world functions, and how humans have been operating for millennia.  In fact, our capacity for cooperation is probably what makes us human.

Such group activity can also can have its downsides, and not just in terms of the free rider who benefits from the work of others.  Rather groups can take on a life of their own, and distorted and harmful collective understandings can emerge as a result.  In the wake of the collective tragedies of Nazism and Stalinism, “groupthink” became a source of serious academic study. But on the brink of World War II, Hungarian sociologist Karl Mannheim wrote about how industrialization and urbanization was impacting our collective capacity for this sort of groupthink as follows: “life among the masses of a large town tends to make people much more subject to suggestion, uncontrolled outbursts of impulses and psychic regressions than those who are organically integrated and held firm in the smaller type of groups.  Thus industrialized mass society tends to produce the most self-contradictory behavior not only in society but also in the personal life of the individual.”

The students of Parkland and the many others who are emerging into the broader spotlight are organizing themselves at the local level, school-by-school and community-by-community, and helping the rest of us see the disastrous and ruinous groupthink that has captured the collective imagination around gun control.  And they are doing it in remarkable ways, sustaining their collective energy in the wake of tragedy.

Recent research into how groups can work effectively, carried out by Google in what it called “Project Aristotle,” identified a series of common components in effective groups, including the following:

  • Dependability: getting things done on time and accurately;
  • Structure and Clarity: having clear goals and clear roles;
  • Meaning: the work is personally important to the team members;
  • Impact: team members think their work matters and will bring about change;
  • Psychological Safety: team members feel safe to take risks and be vulnerable in front of others.

From the outside looking in, the Parkland students and the many others who have been working for meaningful responses to gun violence who have gained greater attention because of the Parkland tragedy, appear to meet these criteria for successful groups.  They pulled off hundreds of simultaneous rallies across the country in a matter of weeks.  They could not have done so had they not had some structure and clarity to their work, did not see the importance of their work, and did not derive meaning from it.  And it would appear that they are incredibly supportive of each other, both within their own groups and in relation to each other.  For example, during Saturday’s march in Washington, when a student, Samantha Fuentes, who was wounded in Parkland, was addressing the crowd, she paused a moment, turned away from the lectern, and vomited.  Other students rushed to her side, urged her to keep going.  She emerged from being doubled over to proclaim: “I just threw up on international television and it feels great!”

The students leading this campaign should be an inspiration to everyone who wants to bring about change, and can help us understand how we can do it collectively, because it is in such group efforts that real change is possible. I have written about my own experience as a law student working on a case, brought by a law school clinic, that challenged the U.S. government’s treatment of Haitian refugees in the early 1990s, a case which ultimately went to the Supreme Court.  In ways that echo the work of the Parkland students, but by no measure on the same scale or with the same impact, the team effort there, led by students, invoked many of these themes as well, and can help show how law schools can harness the collective capacities law students have for bringing about change.

In an oft-quoted phrase, Margaret Mead said to “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”  How such groups should actually go about doing that is another question, and the Parkland students and the thousands of others who have been inspired by their work, or who have finally gotten the attention they deserve, may just show us the way.

Why We Do What We Do

This week my former Penn State Law student Courtney Kiehl appeared on HLN sharing her experience as a child sexual abuse survivor. Courtney was sexually abused by her gymnastics coach for years as a young girl. Like many other courageous abuse survivors, Courtney’s resilience galvanized into a career path to law school. Advocating for other victims of sexual and family violence is her sole ambition, and she does it remarkably well for a woman who never wanted to be a lawyer. During college at UCLA, Courtney planned to work in public policy or direct victim services as soon as she graduated. Law school was never in the picture.  She has shared with me numerous times, though, her light-bulb moment while working with abuse victims frustrated with the legal system that often re-traumatizes them.  “I thought, oh, crap,” Courtney says, “I guess I have to go to law school.” And when the Sandusky tragedy unfolded at Penn State in 2011, she knew where she needed to be.

I met Courtney in 2012 as a 1L who explained her story and her career goals. She struck me as a typically green 1L with an atypical tenacity and motivation. She enrolled in my clinic, where she represented domestic violence survivors. The greenness ripened, and the tenacity and motivation fueled her growth into a highly engaged advocate. She became my research assistant, then my post-graduate fellow, then my research team‘s project manager. Courtney blossomed into a confident, capable contributor to our law and policy projects in academia. I urged her to stay on at Penn State, or elsewhere in legal education, or in any academic setting. She reminded me she went to law school to represent survivors. She returned to California when her grad fellowship ended.  I sent her countless job announcements for junior positions with law school clinics and policy shops in California. She reminded me she went to law school to represent survivors. We convinced her to stay on the research project working remotely for a year.  And when that year ended, she reminded us she went to law school to represent survivors.  She sought out, and found, a job with a highly regarded attorney who represents child sex abuse survivors. She lived her truth. She continues to speak out. And she reminds me every day, by living that truth, why we do what we do as legal educators.

What is a “Fact”? A “Story”?

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.

AALS Video Series on Law Teaching

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:

CLINICAL COSTS: SEPARATING FACT FROM OPINION

by Robert Kuehn,  Washington University School of Law

The late Senator Daniel Patrick Moynihan once observed, “Everyone is entitled to his own opinion, but not his own facts.” When it comes to expanding clinical legal education, the knee-jerk opinion is that it is too expensive for legal education to follow the lead of other professional schools and ensure that every student graduates with a clinical experience through a law clinic or externship. Even the richest law schools couldn’t resist playing the cost card to scare the ABA out of requiring additional professional skills training: “Requiring all law schools to provide 15 experiential credit hours to each student will impose large costs on law schools, costs that would have to be passed on to students. . . . Even a law school with significant financial resources could not afford such an undertaking.” 1

Yet, the facts show otherwise — every school, from the well-heeled to the impecunious, can provide a clinical experience to each student without increasing tuition. Indeed, an array of schools already require 15 credits of experiential coursework (simulations, law clinics & externships) and a clinical experience (a law clinic or externship) for all their J.D. students without noticeable impacts on tuition. At the City University of New York, students must take a twelve- to sixteen-credit law clinic or externship prior to graduation, and at only $15,000 in resident tuition ($24,000 non-resident). Students at the University of the District of Columbia similarly must enroll in a seven-credit law clinic in their second year and a second seven-credit clinic in their third year, paying $11,500 in resident tuition ($22,500 non-resident). Starting with the 2013 entering class, Washington and Lee University requires twenty academic credits in simulated or real-practice experiences that include at least one law clinic or externship. The professor overseeing the program explained that a review of the first few years of the new curriculum showed it is “slightly less expensive than our former, traditional third-year curriculum. And . . . than our current first and second years.”2  Most recently, Pepperdine announced that beginning with next year’s class, students must graduate with at least 15 credits of experiential course work, yet the school increased tuition for 2015 by less than its average increase for the prior three years.

These examples are consistent with studies showing that every school can afford to require a clinical experience for every J.D. student. Continue reading

Teaching Tips to Think about Early in the New Semester- 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.

Clinic Supervision during School Break

Here’s some questions I’ve been asking myself about clinical supervision in the course of intense preparations for an upcoming immigration court hearing:

  • What is expected of students during school break? What should be expected of them?
  • When should a student insisting, “I want to do it even though it’s break time” be accepted by a supervisor/faculty member? Be rejected?
  •  If school breaks are important, which is a given, as all US law schools have them, is it a mistake to even PERMIT students to do case work during that time?
  • If students continue their case work during breaks, what might they be forfeiting? What harm might they experience – e.g., income earned during this time in part-time work, family re-connection time…
  • Are any harms offset by the beneficial work in which they’re engaging, the service they’re performing, the learning they’re gaining?
  •  Where does all this leave the clients whose cases need concentrated attention during these breaks? – To the supervisor/faculty member?

Have others out there considered these questions? Come to any conclusions? Want to share them?

 

Unmasking Assumptions about Employment Outcomes and Legal Education

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 PRACTICEProfessor 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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