Study Finds That Law Schools Fail to Prepare Students to Work with Clients and Negotiate

I previously posted an overview of the excellent report by Ohio State Professor Deborah Jones Merritt and Institute for the Advancement of the American Legal System Research Director Logan Cornett, Building a Better Bar: The Twelve Building Blocks of Minimum Competence.  This report is based on insights from 50 focus groups with 201 participants conducted in 2019-2020.  Forty-one focus groups involved new lawyers and nine focus groups involved lawyers who supervised new lawyers.  “New lawyers” were licensed mostly in 2016-2018.

This post provides detailed excerpts (without footnotes) from the report about new graduates’ unmet needs for instruction in interacting effectively with clients, negotiation, and understanding the “big picture” of client matters.

New Lawyers Were “Woefully Unprepared” to Work with Clients

More than half of the new lawyers in the study worked directly with clients.  And they were not ready for this.

“[They] described three clusters of abilities that they needed to work effectively with clients:


            “1. The ability to gain a client’s trust, gather relevant facts, and identify the client’s goals.


            “2. The ability to communicate regularly with clients, convey information and options in terms that a client can understand, and help the client choose a strategy.


            “3. The ability to manage client expectations, break bad news, and cope with difficult clients.  (p. 52)

“Gathering facts from clients was especially challenging for new lawyers.  In law school, one new lawyer explained, “they give you a set of facts” and “those are the only facts that exist in the world.”  In practice, she had to develop the skill of “getting more facts from the client and knowing which facts to ask for,” as well as the ability to “phrase questions to clients in a way that they understand what kind of information you’re trying to get, and they give you the information that’s actually useful to you.”  Supervisors agreed that new attorneys needed to do more “fact digging” with clients, “going back to ask some more questions to get really to the bottom of what’s happening.”

“Deciphering client goals was equally important. “Sometimes,” one supervisor reflected, “we don’t ask the client, ‘Well, what does victory look like?  What’s your goal here?”  Another supervisor agreed that new lawyers don’t pay enough attention to client goals:

“One thing that I noticed that a number of the young lawyers struggle with, which is helping a client get to yes.  Which is not, ‘well the law says this, so no, you can’t do that.’  [Instead, we need new lawyers to say]  ‘The law says this.  So if you want to accomplish your business goal, you will need to do these things.’  . . . Clients are not looking for us to tell them what they cannot do.  They’re looking for us to help them understand how to accomplish their business objectives.

“Several new lawyers elaborated on the same theme.  “I didn’t really understand,” a new in-house lawyer commented, the importance of “trying to understand the goals of what our business clients want to do.  Just because they have a certain idea of how to do it that may not be legal doesn’t mean we can’t find something legal to do, to try to get to the same result.”  Participants in another group nodded in agreement when a lawyer at a mid-sized firm observed: “we have to figure out this meandering way of getting to where they want to go that’s legal, so just asking the right questions so that you know what their actual final goal is” allows you to “get there in a way that actually makes sense.””  (pp. 53-54)

New Lawyers Had Difficulty in Communicating with Clients

After three years of law school, new lawyers had serious problems communicating with their clients.  We teach them to argue.  Listen and communicate effectively with clients, not so much.

“New lawyers in our focus groups described their need to communicate frequently with clients, especially when clients lacked experience with the legal system. “The number one complaint from clients of lawyers,” one declared, “is lack of communication, or poor communication, and not being told what the hell is going on in their case.”  “Especially in the discovery phase,” he continued, clients don’t understand the demands placed on them or the slow progress of the case. Taking time to “touch base” and offer “a lot of handholding” was essential for building client relationships.

“Equally important, new lawyers had to learn effective counseling skills.  Several contrasted their advocacy skills with advising ones.  They “felt very confident” with the former but not the latter.

 . . .

“Other new lawyers described learning how to “coach [clients] through a tough choice,” and helping them assess the costs and benefits of each course of action.  “I do that all the time with my clients,” a new lawyer from a small firm noted, “just like laying out like these are all the possibilities and their likelihood.  Do you really want to do this or do you want to walk away from it and just like call it a day?””  (p. 54)

Lawyers Had Problems Managing Expectations, Breaking Bad News, and Coping with Difficult Clients

In practice, lawyer serve clients who are real people, not the two-dimensional characters who populate law school textbooks.

“Some new lawyers in our focus groups grappled with clients living with mental illnesses, trauma, and other life challenges.  Counseling these clients was difficult, especially when delivering bad news.  “Somebody can know the black-letter law inside and out,” a bankruptcy lawyer observed, “and then their first day on the job they are sitting in front of somebody who is incredibly worried, incredibly anxious.”  There “hasn’t really been any formal training,” he continued, “on what do you do when this person’s on the brink of tears and you have to take him in front of the judge.”

“New lawyers in our groups had to overcome their initial desire to please clients, learning to deliver bad news candidly.  “It was a really hard skill for me to learn,” a new family lawyer admitted, “because I was kind of a pleaser at first. . . . But now I don’t really care if they don’t like what I have to say and advise them. I tell them they didn’t hire me to be a cheerleader.”  Another new lawyer learned to be “straightforward” about problems because his attempts to “tiptoe around” them led to misunderstandings.”  (p. 55)

New Lawyers Need Specific Communication Skills

The study found that “the current licensing scheme overlooks five key facets of [communication] competency.”   New lawyers must be able to:

  • “Communicate concisely;
    •          Communicate in language that clients understand;
    •          Choose communication methods that are effective for each audience and setting;
    •          Attend carefully to communications from others; and
    •          Negotiate effectively.”  (p. 65)

“New lawyers struggled to find the appropriate words for communicating with clients.  Even “practical” law school classes, one observed, “didn’t teach us how to talk to clients, how to get someone who’s charged with some heinous event to trust you well enough to tell you what’s happening.”  A prosecutor confessed: “One skill that actually I didn’t think I would need that I still don’t feel like I really have is talking with victims.  It’s definitely a skill and I’m not great at it.”” (p. 66)

“Effective communication requires reception as well as transmission.  Many focus group members faulted new lawyers for failing to attend carefully to messages sent from others.  They often referred to this problem as a failure to “listen,” but it was clear that the failure could occur either in written or oral communication.”


““Listening is vital,” one supervisor declared:

“”But a lot of new lawyers don’t seem to have that and maybe it’s maturity, but I think it’s something that can be practiced.  You need to listen to what your clients are saying.  You need to listen in our area to what members of the public are saying.  You need to listen to what the other lawyer at the other end of the phone is saying to read between the lines, ‘what does that lawyer really want?’” (p. 68)

New Lawyers Need Skills Negotiating with Counterparts, Clients, and Others

New lawyers are unprepared to negotiate because they are trained almost exclusively to argue.

“Focus group members identified negotiation as a distinctive communication style that was essential for their work.  Negotiation, they noted, is quite different from advocacy.  As new lawyers, they had to learn to “be collaborative,” “give a little to get a lot,” and “work together” with opponents.  The “litigious” argument styles they learned in law school did not work well during negotiations.

“In addition to negotiating with opposing counsel, new lawyers had to negotiate with union agents, pro se opponents, and their own clients.  One new lawyer working in-house even negotiated fee arrangements with outside law firms:

  •          “I do a lot of labor negotiation.  So it’s interesting because sometimes it is another attorney on the other side, but a lot of times it’s a business agent for a union who’s not an attorney.  So I guess approaching that in different ways has been an interesting thing to learn.”
  •          “Sometimes negotiating with your own clients on what we’d be willing to accept on a civil case, they think it’s worth a ton of money and you’re . . . trying to negotiate them to a reasonable place because ultimately going to trial wouldn’t really benefit them.”
  •          “Being in-house counsel, . . . the first negotiation is getting all the executives on board with the same deal.  Getting them all to agree that we should go after this deal on these terms is sometimes a bigger battle than negotiating it with opposing counsel afterwards.”
  •          “I remember one of my first discussions with my boss at the time and asking, he was like, ‘Reach out to outside counsel if you need to, talk about budget and things like that.’ . . . And so, that’s something that I had not done as far as negotiating price and what we can pay.”

“Several new lawyers wished they had taken negotiation classes in law school; a few suggested these classes should be required.  One tax attorney explained that, as someone who planned to do transactional work, he thought negotiation and mediation classes were only for people who planned to “do that for a living.”  Only after beginning his practice did he realize how much time he spent negotiating with clients and colleagues;  then he wished he had been encouraged or required to study negotiation in law school.

Supervisors agreed that “negotiation skills are huge,” and “absolutely important” in law practice.  One supervisor observed, “What I see lacking is the ability to negotiate provisions into a contract. . . .  [New lawyers] know the elements of different types of laws.  It’s just the question of negotiating contracts, or just negotiating in general, that seems to be lacking.  Which is what we spend a lot of time [doing].””  (pp. 69-70)

New Lawyers Need to Understand the “Big Picture” of Client Matters

Law students mostly learn little disconnected pieces of the law but not how to understand the “big picture” of their cases and act accordingly.

“Focus group members urged that lawyers must see the “big picture” in client matters to represent clients competently.  New lawyers, they suggested, often lack that ability.  One supervisor summarized this perspective by observing that new lawyers need “to think more at the forest level and less at the tree level.”  A new lawyer offered a similarly graphic explanation. “It took a few cases, seeing the full life cycle of the case, to really understand strategy,”

“A lack of experience with “forests” or “maps,” according to our focus group members, caused at least two problems.  First, without the ability to see the big picture, new lawyers could not effectively manage projects.  When given responsibility for their own cases, which was common in many organizations, they struggled to manage those cases.  Even when working as part of a larger team, they sometimes missed critical deadlines because they did not understand the full project’s timeline.

. . .

“Failure to understand the big picture caused a second failing among new lawyers: they had difficulty developing strategies to guide client matters.  These new lawyers knew the rules, but they did not know how to combine the rules into a successful strategy.”  (pp. 72-73)

Recommendations for Required Courses in Working with Clients and Negotiation

The report recommends that all law students take three credits to develop working with clients and three credits of negotiation.

Recommendation Six:  Require candidates to successfully complete three academic credits of coursework that develop their ability to interact effectively with clients.  These credits should focus specifically on client interaction and should include opportunities for students to practice that interaction and receive feedback.  Instructors should understand that successful completion of the course signifies that the student possesses the ability to interact effectively with clients as an entry-level lawyer.

Recommendation Seven:  Require candidates to successfully complete three academic credits of coursework that develop their ability to negotiate. These credits should focus specifically on negotiation and should include opportunities for students to practice that interaction and receive feedback.  Instructors should understand that successful completion of the course signifies that the student possesses the ability to negotiate effectively as an entry-level lawyer.”  (p. 98)

This post includes a list of ABA books that address these needs.  Marjorie Corman Aaron’s excellent book, Client Science, provides empirically-based advice for lawyers about counseling clients when giving bad news.  In this piece, I argue that law schools should teach students to think strategically, which is really what it means to think like a lawyer.  And my co-authored book, Litigation Interest and Risk Assessment:  Help Clients Make Good Litigation Decisions, helps lawyers work with clients to get the big picture of their cases, and to develop good litigation, negotiation, and mediation strategies.

Messages for Students

The report finds that pursuing continuous, self-directed learning is an “essential component of minimum competence.”  (pp. 80-82)

In my view, law schools should incorporate this from the outset.  Unfortunately, law schools emphasize external motivation so much that it can overwhelm students’ internal motivation to learn.  The hidden curriculum in legal education teaches that the most important criteria are curved grades, competitions, certificates, law review, clerkships, prestigious jobs, etc. etc.  This not only sends the implicit message to the “bottom” 90% of the class that they aren’t very good, but it also distracts students from taking the initiative to develop skills they will need in practice.

Faculty should counteract the hidden curriculum by repeatedly emphasizing that simply getting a law degree isn’t sufficient to be a competent new lawyer, and that students should continuously assess and address their learning needs, starting in law school.  You might require students to read this post and encourage them to read the full report.

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.

Top 5 Tips for Teaching Law Online

The COVID-19 pandemic has transformed legal education.  As law professors, we find ourselves in a new era of online teaching that is fraught with uncertainties and new challenges.  We face the task of redesigning our courses while continuing to teach effectively and struggle to figure out how to design an online law course that is both effective and engaging.

As a longtime proponent of online educational programs,  I surveyed the legal academic community to identify the five most common “pain points” experienced over the last several months.  The data informed a webinar I conducted last month for the AALS Section on Technology, Law and Legal Education (click here to watch it), which I recently developed into a 3-day Bootcamp on Designing Your Online Law Course.  In this post, I address each pain point in turn, with the aim to provide strategies and highlight some advantages of online education.

Making the Experience Like a Classroom

Colleagues ask how they can replicate the traditional classroom experience.  They want to maintain lively class discussions on Zoom, but find it difficult to engage students and encourage participation.  Many struggle with multitasking between controlling the class narrative, presenting their slides, and monitoring the chat function.  So, the first pain point is how to I replicate the classroom experience using online modalities?

The answer is simple: you can’t.  Online learning is different than traditional classroom teaching.  When teaching online, we need to adopt a new mindset.  In my view, the first step in adopting a new mindset is to appreciate that “teaching” and “learning” are two different verbs performed by two distinct groups of actors.  For years, I assumed that if I taught a topic, my students learned it.  Not, I realize the mistake in that way of thinking and have started to think about teaching and learning from my students’ perspectives.  By unbundling the teaching and learning processes, we can be more deliberate about how students learn best.  I think that is the first step in building an effective online course.

 Engaging Students

Being cognizant of the learning side of the process will also guide us in engaging students.  The second “pain point” articulated has to do with student engagement; “how to I engage my students online?” The solution is to shift to a student-centered design approach.  Student-centered design is a concept I borrowed from user-centered design, a design-thinking approach that has been successfully employed by start-ups and other new ventures.

User-centered design, or design thinking, teaches us to start by gaining a deep understanding and empathizing with our end users—in this case, our students.  What do we know about our students?  We know that they are learning at home; at home they likely face many distractions, have a shorter attention span, and might be dealing with familial obligations.  If we acknowledge these realities as we develop our syllabus and engage in course design, we know that we will want to chunk up the learning into smaller pieces to keep students engaged.

Student-centered design will also guide our course design by getting us to clearly articulate the learning goals for our courses and for each unit (class, week, section).  The guiding questions here are: what do we want our students to know, be able to do, and value when they finish the course/unit?

Next, plan the assignments and readings your students can complete on their own time (cases, statutes, regulations, articles, treatises), as well as the active learning activities (chunked videos, narrated slides, podcasts, exercises, role plays, discussion boards, reflections, breakout rooms, Socratic dialogue, etc).  Lastly, give students formative assessments such as quizzes, and provide ample feedback on discussion boards and written drafts/exercises.  This may entail more planning, grading, and monitoring than in-person classes.

Assessing Learning and Providing Feedback

The third “pain point” centers around gauging student learning.  For that, online education offers a lot of options to gather feedback about and assess student learning.   You can use online tools to assess if students are moving toward the learning goals.  Indeed, online learning makes it easy to insert periodic formative assessments—either graded or ungraded – throughout the course.  In law school we are used to summative assessments.  Summative assessments, while the cornerstone of gauging law school performance, do not give students feedback as they are in the process of learning.  Learning theory tells us that students learn best when they get immediate feedback.  It also keeps them engaged in the learning process.  Moreover, the results will show you how effective your own course is—allowing for better course design, iteration and corrections, as needed.  Formative assessments come in many forms, from multiple choice quizzes to demonstrate basic remembering and understanding, to problems that ask students to apply facts to the law or analyze case holdings.  When inserted into your learning management system, you can also provide an answer key and pre-written explanations, so that the students get feedback close in time to taking the assessment.

Maximizing Your Impact

Another question that I am asked a lot by law professors relates to using our time most efficiently.  Online education certainly requires a more steady upfront investment of time.  I think that to maximize our impact as professors, we should think about how to use space and time differently.  By that I mean, we should consider what aspects of our syllabi need to be done in person, and what parts can be performed by students on their own time or in small groups.  I think that as you start to consider this question and become more comfortable with the affordances made possible through online technologies, you will find that there are lots of asynchronous ways to engage students in learning.  For example, rather than leading an entire several-hour class online, consider asking students to work independently or in small groups on problems or projects and then reconvene and debrief.  On Zoom, you can drop in intermittently into break out rooms to check on student progress.  Rather than devoting the entire class period to lecturing, consider adding active learning exercises such as working through problems, role plays, or simply answering their questions.

Working with Technology

Finally, the pain points of many professors center around using new technologies.  That is totally understandable.  Utilizing current technology can be overwhelming, especially for supporting active learning in a completely synchronous context.  The key is to start slowly by learning a few tools at a time.  Try not to overwhelm yourself or your students with lots of new technologies at once.  Use existing resources from your campus, or collaborate with colleagues to share the burden by sharing resources or using existing resources, such as those found on LegalED, Quimbee, BarBri, and CALI.  As you shift your mindset to online learning, remember that it is okay to make mistakes.  Students appreciate that you are learning as you go—just like them.

I really enjoy teaching online and hope you will, too.  If you are experiencing pain points that I missed here, please share them in the comments below.  As always, I’d love your feedback.

 

Addressing Structural Racism in Law School: CUNY Law Faculty Issues Statement and Demand for Action

At law schools across the country, we are grappling with how to respond to internal and external conversations about the role of the legal profession in addressing structural racism, white supremacy, and racist policing. At CUNY Law School, Black faculty and non-Black faculty of color recently drafted and published a Statement and Demand for Action that was endorsed by the full faculty. The impressive and comprehensive statement outlines action steps, policy demands, and faculty dynamics that must change, addresses CUNY’s problematic relationship with the NYPD, and pushes for specific action to create an anti-racist campus.

As we collectively consider the path forward, what steps in CUNY’s plan resonate? What similar discussions are taking place at other law schools, and what is changing? Let us know in the comments.

 

Full text of the statement appears below this line: 

Statement and Demand for Action to Create an Anti-Racist Campus

By Black Faculty and Faculty of Color at CUNY Law

June 30, 2020

Black Faculty and Faculty of Color of CUNY School of Law issue the following statement, endorsed by the full faculty. We believe unequivocally that Black Lives Matter. We grieve with the families of Ahmaud Aubery, Rayshard Brooks, George Floyd, Tony McDade, Breonna Taylor, and every victim of anti-Black violence. We stand in solidarity with those who are demanding justice for their deaths, and who are fighting to dismantle white supremacy in all its forms, and specifically, systemic anti-Black racism. We join in solidarity with those in New York City and around the country who are challenging not only structural racism and racist policing, but anti-Blackness and racism in all of our institutions. The legal academy, including CUNY School of Law, are not exempt from these legacies of slavery and subjugation.

Statement and Demand for Action to Create an Anti-Racist Campus

As Black and non-Black faculty of color, we support the Movement for Black Lives Policy Platforms and stand in solidarity with the movement to defund and abolish police and redefine public safety and accountability through non-carceral investments in Black communities. Accordingly, we reject reforms that preserve the status quo.  As lawyers and educators, we acknowledge our profession’s history of upholding white supremacy and thwarting these demands. However, we are also uniquely situated to further them. Below are preliminary areas in which the law school must work in furtherance of these goals:

Our role in the legal profession: We heartily embrace the dual mission of our law school — to facilitate access to underrepresented communities historically excluded from the profession by white supremacy, and particularly anti-Blackness, and to act as an entrée into providing legal support to communities fighting against systems entrenched in white supremacy. Our view of social justice calls for a complete reimagining of the state and society. Accordingly, we seek to serve those students who will genuinely and fearlessly pursue transformative racial and economic justice.

We uplift and honor the legacy of W. Haywood Burns, the first Black law school dean in New York State, who was also the second dean of CUNY School of Law and tirelessly fought for Black liberation in and outside of the walls of CUNY Law. We are cognizant that among the central tools of oppression under white supremacy is the law, particularly as meted out by police, military and prosecutors of all stripes — be they police who criminalize or cage, police who alienize or deport, or purportedly protective agencies who demonize or separate families.

As Black and non-Black faculty of color, we are committed to dismantling these tools of oppression through a pedagogical approach that deploys critical and radical analyses to challenge our students and by offering a robust and humble praxis in service of movements that seek transformative and restorative justice.  We further reiterate the importance of affirming CUNY Law’s dual mission, from admission to graduation and beyond, through a commitment of  institutional self-reflection that is unflinching, inclusive, and continual.

Curriculum: Black students routinely call on the CUNY Law faculty to recognize and confront the negative impact that the traditional legal curriculum has had on Black students. We call on faculty to acknowledge the concerns of students of color and incorporate the feedback into their teaching.

To work towards becoming an anti-racist campus, we demand that, starting in Fall 2020, faculty mobilize pre-existing resources like the Race, Privilege, and Diversity and Professional Development committees toward educating ourselves across the administration and faculty — including adjuncts, visitors, tenure-track, and tenured faculty — on anti-Blackness, racial capitalism, state overreach into communities of color and abolition movements, particularly by engaging with work authored by Black people, incorporating critical frameworks like critical race feminism and queer theory, disability justice, abolition, and decoloniality, among others, throughout every course, and centering intersectional Black perspectives in the classroom.

To achieve these goals, we demand that CUNY Law provide the material resources so that all faculty may take the time necessary to engage in this learning and unlearning. To ensure accountability and transparency, we demand that these committees and others apprise the full faculty in writing each semester on their progress and any challenges encountered in this process.

Non-Curricular Policy Points

  • The various departments that constitute the law school make powerful choices that should be calibrated to center and uplift anti-racist objectives. We demand increased outreach to Black and non-Black students of color in admissions by the career planning office and heightened engagement with Black and non-Black alumni of color. Understanding that internships and initial jobs are key to a student’s ability to practice law over the long-term and practice in the frontlines of social justice movements, we also demand that the career planning office provide increased support to Black and non-Black students of color, particularly first-generation higher education students, whose resumes and cover letters can and should reflect the valuable perspectives and skills that each of our students has to offer the legal profession. We call on the relevant committees to report back on these developments to the full faculty in Fall 2020.
  • For too long we have participated in maintaining barriers to the legal profession even as we seek to break those down. Accordingly, we demand that, starting Fall 2020, the minimum LSAT requirement for all scholarships, including the Graduate Fellowship, be abolished and that the law school keep records of and make public the distribution of scholarship and summer fellowship funds by race. Similarly, we demand that admissions data collection be expanded beyond the required ABA categories to include more detailed, granular, and less reductive categories to better account for the multiple and diverse identities our students bring to the school. We call on the Admissions committee to report back on these developments to the full faculty on a bi-semesterly basis.
  • CUNY Law offers the services of a Nurse Practitioner and Mental Health Counselor on the premises, but otherwise, students are not offered health insurance and are instead invited to enroll in Medicaid programs during open enrollment each period. The limited resources made available are not sufficient for CUNY’s student body. Particularly given the dynamics described above, we call on the law school to consider allocation of funds to mental health services and other medical insurance.
  • Some of our academic standing policies — such as the threshold for academic probation — have a disparate impact on Black and non-Black students of color. We demand that those policies be immediately reconsidered and amended. We call on the Academic Standing committee to report back to the full faculty on these developments on a bi-semesterly basis.
  • We reiterate the importance of the role of Black and non-Black faculty of color on the faculty appointments committee. We call on the Committee on Committees to report back to the full faculty on developments to this end in Fall 2020.
  • Like many law schools, CUNY Law relies on faculty with non-secure positions for critical teaching positions. Our adjunct, visitor, instructor, and other non-tenure track faculty contribute immensely to our institution yet lack job security, opportunities for training and development, and other benefits that permanent faculty enjoy. We demand meaningful job security for our colleagues in these positions, especially Black and non-Black faculty of color. We call on all relevant committees to report back to the full faculty on progress to this end in Fall 2020.

Faculty Dynamics

  • Invisible institutional service and labor of Black and non-Black faculty of color: In 2019, 88% of lawyers were white and in 2018, 8 out of 10 law professors were white. CUNY School of Law boasts a more racially diverse faculty. We especially acknowledge the school’s laudable efforts to bring ten faculty of color, including 4 black faculty, onto the tenure track in the past 3 years alone. Nonetheless, we must do more to dismantle anti-Blackness in our governance. Black and non-Black faculty and staff of color, both at CUNY Law and throughout the U.S., routinely perform unrecognized labor beyond their job descriptions and in the service of their institutions, to confront anti-Blackness and other forms of racism. A wealth of research shows these contributions both sustain diversity and inclusion efforts in the academy and create additional demands that detract from the time required for fulfilling traditional expectations of all faculty.

Faculty of color devote significant time to mentoring and supporting Black and non-Black students of color, ensuring that our institution can retain the most marginalized students after they matriculate.  We advocate explicitly and in more personalized ways for Black and non-Black students of color, who suffer regular indignities, while we also abide microaggressions from colleagues, the profession, and indignities from broader society ourselves. We disproportionately bear the burden of ensuring equitable distribution of labor among faculty and scholarship and fellowship awards among students.

We highlight the lack of recognition (both in salary/pay and formal acknowledgement through evaluation, tenure, and promotion standards) of the amount of invisible institutional service and labor that Black and non-Black faculty and staff of color contribute to the law school.  We demand that similar to our institution’s commitment to recognizing advocacy work product as scholarship, CUNY Law change provisions in promotion, hiring, assignment to and distribution of labor on committees, and tenure policies to honestly and explicitly reflect the now hidden workload of Black and non-Black faculty and staff of color.  For example, we need more conscientious reappointment and annual review reporting policies and re-conceptualized categories of “teaching, scholarship, and service” across the faculty.  We call on all relevant committees to report back to the full faculty on progress to these ends in Fall 2020.

  • Recognition of privilege and power: We note the complex conditions inherent in participating in governance discussions. We demand that faculty be mindful of their privilege and hierarchies of power and reflect on the ways in which they participate in committees, faculty meetings, and other spaces — stepping back where appropriate.

Policing: Generations of faculty, students, and staff of color have repeatedly expressed concerns about the relationship between CUNY Law’s public safety and the New York City Police Department (NYPD). We demand that any memoranda of understanding governing the role or presence of CUNY Public Safety, of the NYPD, or of any other law enforcement agency on the CUNY School of Law campus be shared immediately with the full faculty, staff, and student body of the law school. In keeping with the demands and concerns of generations of students, faculty, and staff, we’re calling on CUNY Law School to discontinue any formal or informal relationship with NYPD and reimagine campus security by supporting the safety and well-being of the people on campus through divestment from punitive policing systems and investment in alternatives, including de-escalation, conflict resolution, and transformative and restorative justice training for all faculty, staff, and designated student representatives. The Public Safety committee was explicitly tasked with addressing these issues in the Fall of 2019. We call on that committee to report back to the full Faculty by October 2020 on progress to these ends.

Finally, we stand by Brooklyn College’s Black Faculty and Staff (BFS), Faculty of Color (FOC) Group, Latino Faculty and Staff (LFSO), and other caucus groups in the CUNY system, and we adopt our Brooklyn colleagues’ statement, slightly adapted to the law school’s context, as follows: This moment in our country is the culmination of systemic denial of dignity that typifies antiblackness. As lawyers fighting for racial and economic justice, we know that structural inequality cannot be addressed through empty statements of standing in solidarity and promoting “diversity.”

We advocate a transformational solidarity with an ethos of social justice that is action- oriented. Transformational solidarity means that the systemic racism, surveillance, and austerity that have become a normal feature of society is aggressively challenged on campus. Transformative solidarity understands that struggles against domination are shared and that anti-Blackness and austerity work in tandem and must be fought hand-in-hand. This is a fight that involves Albany and state politics but it begins with us on campus. We demand a shift in the current institutional logic of the administration that urges faculty and staff to do more for our students with less. By embracing this moment of profound possibility in response to this crisis, we hope to imagine and create a life-affirming campus we do not have, but require.

  • Chris Adams
  • Beena Ahmad
  • Naz Ahmad
  • Saba N. Ahmed
  • Bahar Ansari
  • Nermeen Arastu
  • Ann Cammett
  • Eduardo R.C. Capulong
  • Janet Calvo
  • Asima Chaudhary
  • Natalie M. Chin
  • Frank Deale
  • Farah Diaz-Tello
  • Pamela Edwards
  • Golnaz Fakhimi
  • Raquel Gabriel
  • Mary Godfrey-Rickards
  • Natalie Gomez-Velez
  • Victor Goode
  • Fareed Hayat
  • Julia Hernandez
  • Carmen Huertas-Noble
  • Chaumtoli Huq
  • Tarek Z. Ismail
  • Ramzi Kassem
  • Donna Lee
  • Degna Levister
  • Julie Lim
  • Gregory Louis
  • Lynn Lu
  • Shirley Lung
  • Princess Masilungan
  • Michelle Pinzon
  • Missy Risser-Lovings
  • Jeena Shah
  • Charisa Kiyô Smith
  • Nicole Smith
  • Yasmin Sokkar Harker
  • Cynthia Soohoo
  • Rafael Varela
  • Shomari Ward

 

We call on all of our faculty colleagues to endorse this statement, mindful that such an endorsement carries with it the responsibility of ensuring the statement’s implementation.

 

Endorsed by:

  • Mary Lu Bilek
  • Beryl Blaustone
  • Rebecca Bratspies
  • Sue Bryant
  • Janet Calvo
  • Nina Chernoff
  • Douglas Cox
  • Lisa Davis
  • Ryan Dooley
  • Dave Fields
  • Laura Gentile
  • Julie Goldscheid
  • Florence Kerner
  • JM Kirby
  • Jeffrey L. Kirchmeier
  • Sarah Lamdan
  • Stephen Loffredo
  • Matthew Main
  • Camille Massey
  • Andrea McArdale
  • Haley Meade
  • Laura Mott
  • David Nadvorney
  • Jason Parkin
  • Talia Peleg
  • Allie Robbins
  • Ruthann Robson
  • Joe Rosenberg
  • Merrick T. Rossein
  • Jonathan Saxon
  • Franklin Siegel
  • Richard Storrow
  • Erin Tomlinson
  • Sarah Valentine
  • Kara Wallis
  • Alan White
  • John Whitlow
  • Sofia Yakren
  • Deborah Zalesne
  • Steven Zeidman
  • Jean Zorn

MOVING FORWARD: DAY TWO OF DREXEL (and some favorite poetic quotes)

Congratulations are in order to Drexel University Thomas R. Kline School of Law, to Dean Dan Filler and to all who planned and presented at the virtual conference.  LEANING INTO UNCERTAINTY: ENSURING QUALITY LEGAL EDUCATION DURING CORONAVIRUS.  Previously,  I wrote a few thoughts about Day One of the conference.  In this post, I will focus on Day Two. But first, good news for those of you who were unable to join virtually: Drexel’s Associate Dean for Faculty Development and Research, Alex C. Geisinger, plans to create a digest of the ideas and questions raised and discussed at the conference. As law schools face the evolving uncertainty presented by both the virus and the conflicting responses of our state and federal leaders, they will benefit from the kind of collaborative efforts and stimulating exchange of ideas that the Drexel conference organizers skillfully facilitated.  As I work with my law school colleagues to plan an exciting and enriching Fall 2020 Semester, I am using the wisdom gained from the conference. A few maxims from yesterday’s gathering stayed with me:
  • Acknowledge and name your biggest WORRY.
  • In crisis, there is OPPORTUNITY.
  • There is always ANOTHER crisis, we just don’t know what it will be.
I was reminded by the wise words of William Butler Yeats

Things fall apart; the centre cannot hold  

Below I share five conference discussions which interested me. 1.  Relationships Still Matter and Matter Even More We know from LSSSE that for health and wellness and law students “Relationships Matter.”  How do we prioritize and facilitate those in a virtual or partly virtual world?
  • Phone call contact with each incoming 1L to find out worries, concerns, and hopes and model that relationships with individuals at the school matter.
  • Throughout semester, should teachers, staff, and administrators be polling the mood of the day or the week?
  • Set up a more systematic “social work case management system” to keep tabs on individual student, staff, and faculty wellness.
  • Provide in a simple format directly to each student in a personal phone call, meeting, or interaction a single document which outlines who the actual person and contact is when in trouble – academically, financially, emotionally, physically.  Maybe start this process over the summer using all employees  throughout the law school?  (CALI worked on a lesson that each school can use to modify the system or contact flow Lesson is at https://www.cali.org/lesson/18103)
  • Prioritize peer-to-peer opportunities for mentoring, collaboration, and synergy.
2.    Create Distinct “Places” for Students To Be
  • Virtual Libraries
  • Virtual Study Spaces
  • Virtual Social Spaces
  • Dedicated physical place for experiential learners to access supplies – not necessarily in clinic office space.
Makes me think of having students feel they have in the words of poet Mary Oliver’s a “place in the family of things”
Whoever you are, no matter how lonely, the world offers itself to your imagination, calls to you like the wild geese, harsh and exciting— over and over announcing your place in the family of things.
3. Anticipate Enforcing Safety and Health Regulations During A Polarized Presidential Election Season
  • Messaging and Communication of Community Rules
  • Incorporate into Student and Personnel Regulations
  • Harder to Anticipate What Will Happen in a Public School Setting
4.  What changes are Temporary? What Will Continue after the Pandemic? Although forced to engage in Remote Emergency Teaching, Professors became facile with useful pedagogical online tools and will incorporate them into their general toolbox.
  • Investment already made in technology will accelerate usage.
  • This was all going to happen anyway as part of Law School 2.0?
  • Increasing options for law students? For institutions growing online programming?
  • Will law schools and universities be more open to allowing staff to work remotely?
  • Will we better appreciate, celebrate, and prioritize the importance of presence and in-person relationship in Higher Ed Learning?
5. With the impact of COVID-19 elevating the issues of access disparity and the diverse needs of our students, how can law schools minimize the threat to learning continuity and academic success?
  • Continue to modify assessment and grading practices?
  • Financial Insecurity?
    • Loss of Employment
    • Food Insecurity  – Virtual Food Pantry
    • Rent and Housing
    • Alums offered physical space (offices) for students without good space to study and take exams.
  • Supporting caregivers and others with outside responsibilities.
  • Evolving accommodations for students with disabilities and immune-suppressed students as we change the manner and methods of teaching.
The above five are a poor summary of the many ideas and queries raised at the conference and thus I look forward to the report back. As we arrive at the end of May 2020, take courage and know we are all in this TOGETHER!
One isn’t necessarily born with courage, but one is born with potential. Without courage, we cannot practice any other virtue with consistency. We can’t be kind, true, merciful, generous, or honest.  Maya Angelou

“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.

 

 

 

World Mental Health Day and Multicultural Awareness

October 10th is World Mental Health Day, instituted by the WHO to raise “awareness of mental health issues around the world” and mobilize “efforts in support of mental health.”  Many members of our profession, are challenged by depression, anxiety and other mental health disorders.  In 2016, the ABA created the National Task Force on Lawyer Well-Being partly in response to the increased ubiquity and pressure of the digital age.

The ubiquity of email, text and other technological advances, all of which make the advent of the fax machine feel downright quaint, have only exacerbated our legal responsibilities. The pressure is constant. And in the midst of taking care of everyone else, we all too frequently ignore our own stressors and health in the process.  Over time, the subtle adverse effects go unnoticed and mask the existing crisis …..

The Task Force was conceptualized and initiated by the ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Professional Responsibility Lawyers (APRL). In August 2017, the Task Force released The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (Wellness Study).  Many state bar associations – such as New York’s – highlighted the need for lawyer health. 

Law students, too, are subject to similar ubiquitous demands of the digital age while competing, learning, interning, seeking permanent employment, representing clients under supervision, and, for many, accruing debt. My law school, like many others, takes seriously the need to educate and support law students’ well-being and has been fortunate to receive funding from a loyal alum and board member for a Wellness Initiative. This week our Dean of Students and her office have planned a series of educational and supportive events.

Mental Health Week

Another project run by students partnered with alums helps with the economic stress of having to purchase professional clothing and suits. And our Center for Excellence in Law teaching sites provide links to self-help apps for students .

This focus on well being is not simply an administrative task. It is incumbent upon law teachers to discuss these subjects in doctrinal classes, seminars and experiential learning courses while mainstreaming ethics, professional identity and multicultural awareness into the curriculum.  Wellness intersects with several of my law school’s learning outcomes  for JD students. In particular, wellness and mindfulness are important tools in mitigating implicit bias and facilitating students ability to

Demonstrate an awareness and understanding of the knowledge, skills, and values necessary to be competent and effective lawyers in a multicultural world. (Albany Law JD Learning Outcome #6)

I experimented with linking the two in class this week. I started the class by reminding students that it was Mental Health Awareness week and the reading a poem by Mary Oliver to get them to slow down.  We also meditated for about 1 minute and 30 seconds by placing a raisin on our tongue and using that time to “Uni-task” by just focusing on the  smell, taste, feel and effects of saliva on the raisin.

We discussed vicarious trauma, implicit bias and how it affects Science.  For homework students had taken implicit association tests,   acquired some new cultural knowledge, read about transgender killings and viewed Hidden Injustice: Bias on the Bench.”  We then discussed how Implicit Bias might work against victims/survivors of domestic violence or privilege abusers which led into discussions of voir dire and Batson.  Students expressed surprise that judges cared about Implicit Bias and that NYS now requires a 1 credit CLE in Diversity and Inclusion. 

We ended class with discussing how to mitigate our own implicit biases.  This is where well-being and mindfulness come in:

  1. Reflection is a tool for mitigating bias. Emphasizing the importance of reflection as a life-long lawyer habit is something we teachers can embrace. Thus mindfulness is not only an important part of well-being, it is a tool to become a more competent lawyer.
  2. When we are tired and exhausted, we are more apt to rely on unconscious patterns, which swings the door wide open to implicit bias reactions and away from thoughtful and considered responses.

The students appeared to understand the connection and to acknowledge its potential. In the final moments of class, I led the students in a LION yoga pose. This was a real treat for me.  As the days get shorter and mid-semester stress hits, there is nothing better than seeing law students laugh at themselves (and me) as they loosen up their tight facial and jaw muscles.

How are you honoring Mental Health Awareness Week at your school or organization?  Do you see the link between mitigating bias and wellness/mindfulness?

After All These Years: Another Bar Exam Over, Another Entering Class, but Still a Disconnect between the Licensing Exam and What We Need Lawyers to Be and Do

I was never a Journey fan but I truly am astonished that after all these years of preparing lawyers for practice, and after two years of an unprecedented undermining of  the rule of law in our nation, law schools still live with a disconnect between the profession’s  licensing exam and what business, government and society needs lawyers to be and do, which includes protecting  the rule of law. 

The National Law Journal recently discussed two new major studies which will analyze whether the current exam is the best measure of new lawyer competence.  The National Conference of Bar Examiners (NCBE) is in the midst of a three year study  to “ensure that the bar examination continues to test the knowledge, skills, and abilities required for competent entry-level legal practice in the 21st century.”  (Hmm, continues? that’s a bit biased) and has already held 30 listening sessions.  

The second study, “Building a Better Bar: Capturing Minimum Competence” is an initiative of  the Institute for the Advancement of the American Legal System in partnership with Ohio State Law Professor Deborah Merritt, and aspires to develop a “fair, evidence-based definition of minimum competence” to improve the current licensing process.  Funded by Access-Lex, the researchers:

will be holding 60 focus groups in 12 locations around the country. While these focus group participants will primarily be new lawyers, we will also hold a number of specialized groups with supervisors. Additional specialized groups will include only women and only people of color, as well as groups in rural areas; traditional job analyses can mask the views of these lawyers, yet their perspectives are essential to create a more fully representative view of minimum competence and how to test for it effectively. Through these focus groups, we will be able to capture key information from a diversity of perspectives and provide concrete data on the definition of minimum competence that the profession can use to improve the bar exam and how lawyers are licensed.

 

Readers may remember that IAALS has provided helpful research in the past through its Foundations for Practice  research, which identified the  competencies over 24,000 legal employers value in new hires (most of which go untested by the current licensing process) as well as the evaluation of the graduates of the Daniel Websters Honors alternative to the bar exam in “Ahead of the Curve:  turning Law Students into Lawyers

I suppose I should be delighted that more studies are being launched. They are addressing the exact issues so many of us have raised for decades. However, my reaction is uncharacteristically pessimistic.  (Readers here who have tolerated my enthusiastic use of exclamation points and emphasis will agree it is uncharacteristic).  Perhaps it is the August humidity. Perhaps, it is the sorrow surrounding our nation after a week of grief from senseless gun violence But more likely, it is the fact that I am feeling frustrated that we have already studied this to death! For example, working with state bar associations The Foundations for Practice Project already studied new lawyer competencies with 24,000 lawyers from all 50 states participating and found

… the foundations that entry-level lawyers need to launch successful careers in the legal profession.

In a first-of-its-kind survey, we asked, “What makes a new lawyer successful?” More than 24,000 lawyers from all 50 states answered.

What we learned is that new lawyers need more than IQ and EQ to be successful. They also need CQ: Character Quotient. In fact, 76% of characteristics (thinks like integrity, work ethic, common sense, and resilience) were identified by a majority of respondents as necessary right out of law school.

Beyond character, new lawyers are successful when they come to the job with a broad blend of legal skills, professional competencies, and characteristics that comprise what we call the “whole lawyer.”

So why is the NCBE, who clearly has a stake in the outcome, refusing to respond to the outcome of that 3 year old study but instead promising only to do its own study. JEESH! We tweak here and there, we add more pro bono or experiential requirements, but no one truly influential will admit that our insistence on anchoring the gateway to the profession to a timed, written exam instead of clinical excellence is the problem.

Starting as early as 2008, this blog has discussed the problems with the bar exam and its role as an unhelpful, anxiety producing, discriminatory, skewed, and unnecessarily speeded, gate-keeping device.  For a sporadic history of posts between then and now, in fairly chronological order, click on the links below.

Did You Know That “Bar Courses” Don’t Matter? 

New Article: No Excuses Left for Failing to Reform Legal Education

Working with State Bar Associations on Best Practices

Bar Passage and Best Practices for Legal Education

One BAR to rule them all?

The Daniel Webster Scholar Honors Program

NYSBA Task Force on the Future of the Legal Profession Report

New Requirements for Bar Exam Stress Clinical Education

Existential Crisis and Bar Exams: what is really cruelest?

The Bar Exam Inhibits Curricular Reform

NEW YORK STATE BAR ASSOCIATION VIGOROUSLY OPPOSES PROPOSAL TO BRING UBE TO NY THIS JULY

Preparing Students for the Multistate Bar Exam

Musings on the Bar Exam and Legal Education’s Attitude toward it

Bar Exam Musings, Part II: Skillfully Changing the Bar Exam Narrative

Experts in the Legal Field Question the Bar Exam…

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

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

Examining the Bar

Keeping an experiential identity in bar passage reform

Whither Clinical Courses and Bar Passage – by Prof. Robert Kuehn

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

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

Studying Better Ways to Test Bar Applicants for Minimum Competence: Another Reason to Care about the California Bar Exam (Besides the Cut Score Debate)

Scholarship on Bar Exam Alternatives Needed

ABA Commission on Future of the Profession & ABA Vote on Bar Passage Proposal

Drafting Exams With Test-Taking Speed in MindConcrete Suggestions for Bar Exam Reform

We have to talk about the bar exam

What can Law Schools Learn about Bar Passage from Medical Schools’ Approach to Studying Students Who Struggle with Licensing Exams?

More Resources Re Teaching, Learning, and Bar Passage

A Fresh Look at the Uniform Bar Examination

Letters raise concerns about changes to the bar pass accreditation standard

Time to Remedy the Ills Afflicting ABA Council’s Standard 316 Proposal

Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?

Shifting the Focus of Legal Education Back to Just That: Education

How Practice Tests Reduce Anxiety in Bar Preparation and the Exam

Quite a listing, huh? I suspect that the IAALS and Merritt project will provide us with extraordinarily helpful insights into measuring minimum competence. But political clout is also needed. Will this BLOG simply be adding more posts for years to come on the unfairness and inappropriateness of a slightly modified, unnecessarily stressful, timed, bar exam — a continued hazing tradition?  I hope the NCBE and other institutional influencers proves me wrong.

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?

 

 

Examples of How Law Schools are Addressing Law Student Well-Being

In a recent post, we summarized the National Task Force on Lawyer Well-Being’s recommendations for law schools. This post follows up to provide examples of what law schools are doing on the subject of student wellness. These efforts are intended to educate students and create good habits that they will take with them into practice.

Gather Well-Being Resources on a Webpage. Gathering a list of programs and resources in one place makes it easy for students to know the opportunities that are available and highlights the school’s commitment to student well-being. William & Mary Law School does a nice job of cataloging their wellness opportunities on this page, which links to another page listing “Wellness Wednesday Events.”

Curriculum. Law schools are increasingly creating classes on wellness-related topics. This blog recently discussed The University of Tennessee College of Law’s class Thriving as a Lawyer (A Scientific Approach).  Many schools have developed courses on the subject of mindfulness. For example, University of Miami School of Law offers a number of classes in its Mindfulness in Law Program, Northwestern Law’s mindfulness offerings include Mindfulness-Based Resilient Lawyering, while UC Davis School of Law offers Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact.  The University of San Francisco School of Law and South Texas College of Law Houston both offer courses in Contemplative Lawyering.

Extra-Curricular. Extra-curricular activities can address multiple aspects of student wellness, from creating a sense of community to addressing physical health. Yoga classes (such as the weekly classes offered at Marquette University Law School) and running clubs (like those at Lewis & Clark Law School and UCLA Law) are popular at law schools. Book clubs (like the one at the Michigan Law which is promoted as a fiction escape from law books) and potluck dinner gatherings (offered for students at Tennessee Law) provide opportunities for students to connect, socialize, and recharge.

Counseling. Many law schools are connected to universities with counseling and related services available to all students; it can be incredibly helpful to make law students aware of those university resources by creating a list on a law school webpage (like the one created by the University of Missouri School of Law).  Some law schools, like American University Washington College of Law, and William & Mary Law School  have counseling and “wellness coaching” services in the law school building to make it easier for students to access.

Creating a Space that Encourages Student Health and Wellness. A number of law schools have given thought to student health and well-being as they have designed or re-designed their space. While not every school can afford a gym, many have made space for standing desks in the library, ping pong tables, and exercise bikes.

Well-Being Committees and Student Organizations.  A number of schools have created well-being committees or student organizations, often at the urging of students. For example, the Washburn Association for Law Student Health states its purpose is to “actively promote the education and awareness regarding health and wellness of the law student body, mentally and physically, while creating a community for students interested in promoting health and wellness in their own lives and in the lives of their peers.”

These examples only scratch the surface of all the things law schools are doing on the topic of well-being. If your law school is doing something that other schools may want to consider, please add it in the comments.

 

Thriving as a Lawyer

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

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

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

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

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

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

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

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

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

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

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

 

Bylaws and business meetings: a 1L experiential module

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The first year of law school rightfully has been criticized for overly prioritizing the litigation model and for making it the central focus of our teaching. This emphasis lulls students into believing that the judicial audience is the primary consumer of legal communications. To counteract that skewing, those of us teaching in the 1L curriculum are often exhorted to find ways to discuss transactional forms of legal writing. But, contract-drafting is not easily built into a curriculum already bursting at the seams with the must-have’s that we cram into the lower-credited experiential classes of the 1L year.

Enter the idea of dedicating part of two or three classes to small-organization bylaws and business meetings. The bylaws of a small organization are constitutional, so this type of teaching module fits in nicely with what they are learning in other introductory courses. And while some students may know a little bit about bylaws and business meetings from previous experiences in college, religious groups, or other volunteer activities, most students probably won’t have a great deal of knowledge. Learning about these ideas will appeal to them because of the immediate applicability to the very student-run organizations in which, as rising 2Ls, they are poised to assume leadership positions.

I begin by asking those students with a little bit of knowledge to help me outline, on the board, the setup and order of a business meeting. Typically, at least one or two students in a group of 20 will be able to walk others through it with a little bit of prompting. We talk about why a roll call must happen right after the call to order and opening ceremonies. Ask your own students how many of them know something about quorum—you may be startled to learn how few students do. Teaching them what quorum is and how it relates to business-agenda items engages the students and almost immediately makes them realize just how practical this module is.

Discussions about business meetings naturally leads to a conversation about the rudiments of Robert’s Rules of Order and how voting happens on an agenda item.[1] I have sometimes run a class or two in a business-meeting format, inviting students to make formal motions about some of the softer deadlines in the course. As part of that, students must calculate quorum to hold class at all. I always ask them the lowest number of votes it would take to carry a vote, assuming we had exactly quorum present. Students are awoken to the fact that in a class of 20 students, 6 students might be able to bind the other 14. (That is: quorum for a group of 20 students is 11. And if only 11 are present, a simple majority to carry a vote is 6). “It’s important to show up and have your vote counted,” I have remarked. The message isn’t lost on them.

Students also have the opportunity to step into role for actual representation work. A few years ago, knowing this module, our Women’s Law Caucus president approached me and asked if the 1Ls in my class might provide some advice about issues her executive board had identified in their bylaws. Naturally, I immediately agreed. To prepare students for their client, they first looked at a larger set of bylaws I had worked on for a local high school boosters organization. I changed a few items to take the bylaws out of compliance with the New Jersey statutes governing non-profit organizations (a relatively easy statutory scheme). Fifteen questions later, they knew enough to issue-spot in the much simpler student-organization bylaws. Then, in small groups, they looked at the Women’s Law Caucus bylaws and a week later offered their recommendations to the officers. Who adopted almost all of the advice.

This was such a feel-good moment for all involved that I have made it an annual module. Depending on the year, I have had students conclude with a client letter written by the small groups together, or I have simplified it even further and simply had the 1L students meet with the organization’s officer in class to offer their verbal recommendations (I act as scribe for the  officer in those circumstances). Each year I walk away impressed with the speed of absorption my 1L students have for this material. They take the representation seriously, and I think that they also enjoy it. I am likewise impressed with the 2L and 3L student’ willingness to serve as the client for my 1Ls even though it will net them extra work down the road as they work through the bylaws-amending process. I think they also feel that they learn valuable lessons by being the client. Having just completed this year’s project, I already have received a request from an organization’s new president to have my next year’s 1L students put her organization’s bylaws under their microscope.

This assignment is win-win for all involved. It is low-stakes for the 1L students, but it engages them in professional identity development, statutory analysis, problem-solving, and client-counseling skills. The module provides a pragmatic experience—who among us hasn’t been part of a business meeting or bylaws consultation?—and it offers a different perspective on legal practice. To put it simply: it’s relatively easy, it’s fun, and it’s real-world. I highly recommend it to others.

[1]The essentials of Robert’s Rules can be found online although the 11thedition is still a to-purchase item.

Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?

Thank you so much to Best Practices for Legal Education for inviting me to blog again and to Elizabeth Murad for her remarkable work in keeping contributors in touch and on track.  So much is written about the very real decline in bar passage that it is easy for schools with high pass rates–or at least high in relation to other schools in their state– to ignore the need to change what goes on in the classroom and dismiss the excellent work being done in effective law teaching as a problem for “lesser schools” in “lower tiers.”

We know, as legal educators , members of the bar and even members of the public, that bar passage rates have been falling.  And we also know that many, if not most, law schools are admitting students today with LSAT scores lower than those that they  admitted ten years ago. So it’s easy to see a correlation between lower scores and falling rates.  After all, the bar exam is a test much like the LSAT–why wouldn’t there be a relationship?   But even if students are failing the bar exam for the same reasons they are getting low LSAT Scores,  we still have the opportunity to intervene in ways that we know raise pass rates.  This blog contains so many resources for those who want to teach more effectively.   Why wouldn’t we want this for all our students?

Everyone at a school with a “bar passage problem” is well aware that we cannot continue to do the same things we always have when they are no longer working the way they used to.  But we hear this less at schools satisfied with their bar passage  Perhaps the students who are failing are really canaries in the coal mine and a warning to all of legal education that all of today’s law students find it more difficult translating their legal education into the very peculiar format required for bar passage-regardless of LSAT score? Everyone who has ever studied for the bar exam remembers it as a grueling, unpleasant, and highly intensive process–but until very recently that process started after graduation and barring personal disaster almost always resulted in passage.  Even when it didn’t, the consequences of were lower.  Today, students safely employed in September find themselves fired if October brings news of failure.  We need to consider bar passage as an issue both for students who fail and for those who pass–after all, both groups spend the same three years in law school.

Anecdotal evidence (which we could easily substitute for actual data by doing some surveys) suggests that bar passage anxiety spreads well beyond those students most at risk.  All students know that the stakes are high and many believe that their chances of passing are lower than students in the past.  Does that affect their choices while in law school?  Could they be doing more to prepare for their future careers if we could provide them more effective instruction?

Medical students and educators are expressing the same kinds of concerns about their curriculum being shaped by a test as we should be about ours.   We can’t easily change the bar exam–but we can adopt more direct methods of instruction that support not just bar passage but create time for the more complex and less exam focused thinking that we want to be going on in class.

I hope over the week to share resources that would encourage everyone to consider how studying for a very old fashioned test is negatively shaping the education of all of today’s law students. (and because it always warrants reposting-here is a recently revised article by, Louis Schulze of what they have done at FIU to apply the “science of learning” across the curriculum in support of higher bar passage.

 

We have to talk about the bar exam

Thank you very much to the team at Best Practices for Legal Education for inviting me to blog this week.  My particular thanks to Elizabeth Murad for administering the blog, Professor Mary Lynch, Kate Stoneman Chair in Law and Democracy & Director, Center for Excellence in Law and President & Dean Alicia Ouellette of Albany Law School for hosting this blog.  It is an honor to join such a distinguished group of scholars and teachers.

We knew it was going to be a bad bar year when on Sept 14, 2018 the NCBE announced that “the national average MBE Score for July 2018” had decreased “about 2.2. points from the July 2018 average.”  And, indeed, as states have announced the pass rates based on their own individual formula of MBE plus essays plus the MPT (multistate performance test) plus their own individualized questions, the results were bad.  A lot of our students failed the bar exam.  Pass rates were down in New York, in California, Georgia, Florida, in Texas, and lots of other places.  Yet at the same time, individual schools saw significant success in raising pass rates in the face of grim news all around them.  All of this makes for glib headlines and much handwringing, but in the context of a blog post on “Best Practices for Legal Education” it is more helpful to take a step back and assess the tools we, as legal educators, have available to us in addressing bar passage in our individual schools.  I do so from my Ph.D. studies in higher education as well as from my experience as a dean, associate dean, law professor, and medical school professor.

One of my main themes this week will be to argue for individualized problem solving.  If anyone comes to you with a product to solve all your bar passage problems, I hope after this week you will be able to ask some questions about the data on which they base their claims.    Because a productive discussion of bar exam passage really rests on two questions—1. Why aren’t the students at your law school passing the bar exam at the rate they “should” and 2. What should you do about it?

I am going to use this week to share with you some of the resources available to law schools, to individual faculty members, and even to law students who want to increase their chances of passing the bar the first time.  Along the way, I hope to address some of the unhelpful myths that have arisen and to endorse a very old idea borrowed from the then revolutionary 1960s era child rearing techniques of Dr. Benjamin Spock: These are your students—and you know more than you think do.  Trust your judgement.  Ask questions.  That doesn’t mean that you can do everything yourself—it’s fine to consult with experts, but in the end addressing bar exam passage issues is a school wide effort and everyone has relevant information to add and a valuable role to play.

To get started, it’s helpful to have an overview of the players.  As a matter of foundational Constitutional Law, each state retains the power to license and regulate professionals.  (more detail here).   As a result, every state and territory has its own process for setting criteria for bar passage.   Almost every state contracts with the National Conference of Bar Examiners which develops the annual exam, grades it, and spends a lot of time explaining itself.  If you have any interest in this topic, a free subscription to The Bar Examiner will quickly bring you up to speed.

Tomorrow–how a test from the 1950’s trips up today’s digital natives (or “Do we need a Tardis to match law school curriculum to the bar exam?”)

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