Improv for First-Year Law Students?

Just over a year ago, in search of a mid-life growth opportunity, I began taking improv (i.e., improvisational performance) classes at a small theater in Pittsburgh. For decades, I had been a fan of improv as a comedy form but did not have the confidence to think that I could step on a stage and do it myself. Then I happened upon Alan Alda’s book, If I Understood You, Would I Have This Look on my Face? Post his acting career, Alda has become a communications consultant of sorts, working primarily with scientists to help them explain complex ideas in ways that a lay audience can understand. One of the central messages of the book is that improv training and exercises can help professionals of all types relate to others more empathetically and communicate with others more confidently and clearly. Alda references studies showing the benefits of improv training and describes his own experiences running improv exercises for groups of engineers and other scientists.

After reading Alda’s book, I realized that my job as a law professor is to communicate complex ideas to a lay audience too. So, I decided that I could benefit from improv classes—and have some fun at the same time.

My improv experiences over the past year, including joining a team and performing numerous short sets before a live audience, have convinced me that, in short, legal education needs improv. More specifically, to improve the learning environment throughout law school, entering first-year law students need improv! (I could write a separate post on the salutary effects that improv training has had on my teaching, but I will focus for now on how exposure to improv could benefit law students.)

There are CLE courses on improv offered for practicing lawyers (for example, in California and Florida), and there is a blog on improvisational skills for lawyers. But how about improv for law students? Based on a cursory online search, it appears that a handful of law schools offer or have offered improv courses or workshops, including Drexel and Indiana University McKinney. How much improv work has been done with 1Ls, if any, is unclear.

The benefits of improv for law students seem most apparent in the context of skills or experiential courses involving oral communication. Indeed, I have begun using some limited improv exercises during oral argument lessons in my 1L legal writing course. No doubt faculty members at various law schools—Northwestern, for example—have used improv exercises in other skills courses. Thinking more broadly though, and extrapolating from studies discussed in Alda’s book, I believe that offering improv workshops to law students early in their law school careers could very well improve in-class performance and learning throughout law school.

Improv revolves heavily around a group or team dynamic. Someone on the team must initiate a scene by stepping out on stage and doing something, or saying something, or both. One or more of her teammates then must step out in support, accepting the reality established by whatever the first person did and adding to it to help build the scene. That is the essence of “yes, and,” the fundamental premise of improv. The priority in every scene is to make one’s scene mates look good and to never hang them out to dry.

A quick example: An improv teammate and I walk onto the stage. She purposefully walks to a corner of the stage where there is a chair, sits down, puts her head in her hands, sighs deeply, and then begins to sob. Since I have walked onto the stage too, I am the team member in this scene who must accept her established reality: she is distraught about something, and we are in a location where she has taken a seat. However, I must also add to that reality. There are myriad ways in which I could do so. I could, for example, walk over, put my hand on her shoulder, and attempt to comfort her by saying, “It’s alright, honey, I never really liked our BMW anyway, and the side of the house that you hit—we really don’t use it much anymore now that the kids are gone.” She in turn accepts the reality that I have created, and on it goes from there, each of us supporting the other as the scene develops.

I see multiple potential benefits for law students (and, in turn, their professors) that could come from some basic improv training with exercises, offered perhaps within an orientation program before classes begin. For starters, law students, like lawyers, need to work collaboratively and need to relate to each other in a civil and empathetic manner. Improv’s emphasis on teamwork can help in that regard, enhancing students’ abilities to work productively and constructively with classmates in group exercises and projects.

Then there is the classroom learning environment and the sometimes strained or unproductive exchanges that take place between professors and students. Consider the ways in which exposing students to improv could mitigate the impediments to learning existing in the following classroom scenarios, each of which should be familiar to most law professors:

  • Professor poses a question or discussion topic to the class and waits for a volunteer to raise a hand and respond. Nobody does. Or, in a similar scenario, professor calls on a specific student, and the student asks to pass (even though the student might very well have done the reading).
  • Professor poses a question to a specific student, and the student asks for the question to be repeated, or answers in a manner that is not directly responsive to the question.
  • Professor poses a question to a specific student, and the student couches his or her answer in the form of a question, not a statement, suggesting uncertainty and lack of confidence. (For example, in my Legislation & Regulation course, I might ask regarding a case, “Which of the three opinions—majority, concurrence, or dissent—seems to approach the statutory interpretation question most like a textualist would?” The student somewhat meekly responds, “Is it the dissent?”)
  • Professor poses a question that is not explicitly addressed in the reading for that class but rather concerns a hypothetical scenario or a thematic issue in the course that is implicated by the reading. In response, the student struggles to answer or fully engage with the question because, as some students are wont to say, “it wasn’t in the reading.”

These are usually not scenarios where the student is incapable of responding insightfully; rather, the student is just not confident enough to respond or too nervous to respond. Students who have done improv exercises involving initiating scenes and supporting teammates in scenes would naturally be less averse to speaking up in class and doing so in the form of confident and clear statements. They would also naturally be less averse to joining in a discussion after a classmate speaks up (akin to supporting one’s teammate). And they would naturally be more inclined to listen actively and carefully to the professor’s questions and their classmate’s statements. All of which is to say that each of the above scenarios might play out differently—with some robust student participation leading to more productive and constructive discussion. The final scenario in many ways gets to the heart of what improv is all about: going with the flow and accepting whatever comes your way. With exposure to improv, students would perchance be less phased by the question that, while technically not encompassed by the day’s reading, is still well within the scope of the course and their abilities.

In classroom discussion, students whose answers are “wrong” or whose contributions to discussion are somewhat off target tend to view the episode as an embarrassment and a reason not to ever answer a question in class again. I would expect that, with exposure to improv, students would be at least somewhat more inclined to view the episode as a learning experience, which is indeed how it should be viewed.

Posted on the wall of the green room at the theater where I take improv classes is a sign that reads “You Are Enough.” For any law student, improv can impart the message that, even though there will be struggles and mistakes along the way, you are indeed enough. I continue to get nervous before my improv team’s shows, and on more than a few occasions, I have said or done things on the improv stage that fell flat, did not effectively advance the scene, or otherwise just did not feel right. Yes, I get frustrated. But I keep confidently walking in front of the audience because that is how I will continue to learn and grow. So it should be for law students in the classroom, and ultimately in the practice of law, and in life.

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.

A Pedagogical Twist for the 1L Appellate Brief and Oral Argument

For those who teach legal writing to first-year law students, it is the season for appellate oral argument. Yes, the long-standing tradition of requiring first-year students to complete an appellate oral argument in the legal writing course continues today at the large majority of American law schools–at just under 75% of them, according to recent data. At those schools, the oral argument, which is commonly the capstone exercise near the end of the spring semester, has become something of a rite of passage for the students.

In a 2011 article, Legal Research and Writing as Proxy, I argued that assigning an appellate brief and appellate oral argument in the 1L legal writing course remains a pedagogically sound practice, even though a large majority of practicing attorneys will never engage in appellate practice, let alone complete an appellate oral argument. I still retain that view but won’t rehash my arguments here. Rather, I will focus on a pedagogical opportunity afforded by the brief/oral argument sequence of assignments that I discovered more recently.

In the last few iterations of my legal writing course, the appellate brief and oral argument assignments have proven an excellent vehicle for a bit of a pedagogical twist: A few weeks before the brief is due, not after, I teach lessons on oral argument and require the students to complete a practice oral argument round in front of my 2L teaching assistants. (The formal rounds of oral argument in front of a trio of local attorneys still occur after the briefs are submitted.) For many years, I kept brief writing and oral argument entirely separate—only after the briefs were completed and submitted would I shift the students’ attention to oral argument. (After all, that mimics the realities of the “real world“ of appellate practice.) But as a pedagogical matter, just like writing the brief helps in preparing an oral argument, working on an oral argument–and thereby having to talk out and defend one’s positions–can help in preparing a brief.

A few weeks before the brief is due, most students will have a scattered and underdeveloped array of arguments. Completing a practice oral argument can help them–or, in the case of those students who are spinning their wheels, force them–to organize and further develop those arguments for the purposes of the brief. In pursuit of this goal, I ask my TAs to give extensive feedback to both students after each practice round. Moreover, I require every student to attend two additional practice rounds as observers. At each round, the student representing Petitioner, the student representing Respondent, and the students attending as observers also begin to appreciate the formalities and peculiarities of oral argument, thus helping them to prepare for the formal rounds that will occur after submission of their briefs.

This semester, shortly after the practice rounds (just over a week before the briefs were due), my students graciously agreed to provide me some feedback on the experience. One of my students volunteered to solicit comments from all of her classmates, anonymize those comments and her own, and then send them to me. Twelve out of fourteen students in my small section gave a positive review. I include two of the more thoughtful evaluations here:

  1. I found doing the practice oral arguments before my brief was fully written to be helpful. Arguing my side in the courtroom and fielding questions from the TAs helped me more precisely narrow the theme of my arguments and determine how I wanted to frame my position in the brief itself. After receiving pushback from the TAs on certain points, I was able to refine my responses to common criticisms that would come from the other side. Additionally, I now feel more comfortable going into the “official” oral arguments having completed a practice round. However, I would have liked to participate in another mandatory practice round with the TAs after my brief is written; the substance of my oral argument has substantially changed since my first practice round.
  2. Practice oral arguments were a large motivator to get my arguments organized. I found it really helpful to speak out loud about the arguments. Doing so really helped me understand what my points were and whether or not they held up against scrutiny. Speaking about the arguments also helped me understand how they related to each other. The TA’s did a good job of making us feel comfortable throughout the process. I think overall the exercise is going to be beneficial as long as the practice round is kept informal. We were all stressed about how to perform the oral arguments, so maybe there could be a concession in the formality/process of the oral argument that could make us more comfortable.

Good food for thought, as I continue the tradition of appellate oral argument again next spring.

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

It’s not unusual for a provost or a colleague or a relative at Thanksgiving to ask a legal academic why law students have so much trouble passing the bar exam when the pass rates for medical students are usually in the high 90th percent.  The short answer to that question is that the two processes are completely different—and there’s no obvious trick, technique, or intervention that could convert our bar passage rates into their licensure passage rates.   For one thing, it’s the wrong question.  “Passing” the medical licensing exams is certainly important, but unlike the “all or nothing” process of passing the bar exam, the score achieved on Step 1 affects medical students’ entire career path.  But there is a lot to learn about the methods that medical schools use in studying the very few students who have trouble as well as how they evaluate the effect of changes to their curriculums on scores on the licensing exams.

Quick recap on professional licensing—future doctors take a series of three exams over the first six years of their undergraduate medical education and the start of their residency.  (more links in a post I wrote earlier this year here).  The exams are almost entirely national although the actual process of being licensed is conducted on a state by state basis.   Law students take a licensing exam in the state where they intend to practice upon graduation.  For purposes of this post, the closest analogy to the bar exam is the more academic Step One students take during their second year of medical school.  Like  our NCBE, the National Board of Medical Examiners which produces United States Medical Licensing Examination works with medical licensing boards and depends on their confidence.  It issues annual reports.

The focus of this post is on the methods that medical schools use to study the small number of their students who do have trouble passing the licensing the exams as well as the factors that can affect the scores students achieve.  I’ve tried to focus on articles outside of paywalls, and would certainly encourage you to conduct your own searches in the various data bases to which you have access.  There are several journals devoted directly to studying medical education—although these articles can pop up anywhere.

Medical educators use a wide range of research techniques to learn more about students who struggle with licensure exams.  Like us, medical schools would prefer students pass the first time and many articles like this one look for characteristics who fail the first time but eventually pass.  Others look for characteristics of students at risk for failure here and here  or even  what students think of the exam.    Another area for inquiry involves the role stress plays in the score students achieve.   In partnership with social scientists at our schools or in our communities, we too could be conducting studies to help us learn more about students who face difficulty passing the bar exam.  These studies can be part of graduate student work or may even be funded by groups like Access which is making money available to study bar passage.

 

The actual reason the medical school pass rates are so high, though, may not be all that helpful.

It’s not just because they are able to limit admission to students who have already demonstrated an ability to score very highly on the MCAT.  A test that is much more similar to step 1 than the bar exam is to the LSAT.  Indeed, medical schools have direct input in both the MCAT and the Licensing Exams—so when one changes, the other can too. And it’s not clear that anything in the curriculum makes a difference at all—the industry offering study aids and licensure prep courses dwarfs the bar prep and study aid market to a point where students often start studying for the licensing exams before the first day of medical school.

But if it is the curriculum, it’s important to remember the vast difference in time scale between medical and legal education.  We have students for three years post B.A. Medical schools in the U.S. plan their curriculum based on  8 plus years of increasingly specialized medical education.  They are therefore comfortable holding off on the direct teaching of practice skills for the first two years while they are aligning their curriculum with the content of the Step 1 exam.

Even Step 1, though, is far more focused on practice than on knowledge accumulation or deliberately confusing question formulations that characterize the bar exam. Step 2,  the second round of licensing exams prior to graduation medical school,  go past paper and pencil in that they actually test students’ ability to conduct exams and exercise medical judgement.  Another reason for the high pass rate is that most medical schools have stopped developing their own tests and instead use assessment instruments (shelf exams) provided by the same company that produces the exam.   Sure, there is grumbling and criticism about content & timing of the licensing exams, but medical schools work hard to make sure that their curriculums are aligned with the content of the exams.  Finally, medical education is extremely self-reflecting–they are constantly aware of the risks that come from confusing correlation and causation.  How do you know that a change in one part of the curriculum is the cause of a change in test scores?  You run Pearson correlations followed by stepwise linear regressions.  Seeing is not believing when comes to identifying factors that affect performance on licensure exams.   Look here, here, here, and here for studies evaluating curriculum changes.  They take nothing for granted—does attendance make a difference, does flipping classrooms really work? Does reducing the number of hours spend in the anatomy lab reduce USMLE scores?

Another standard practice in medical schools is curriculum mapping— an essential first step for any school that wants to understand what they are teaching—let alone make changes.   Like all maps, curriculum maps are DESCRIPTIVE, not PROSCRIPTIVE.  Here is   Harvard’s curriculum map, but you can find examples on the home page of just about every U.S. Medical School.This is a an article walking through how to map a curriculum.

So what’s helpful to us isn’t so much what medical schools are doing, but how they are evaluating themselves. 

In recap, neither I nor anyone else who has ever practiced law thinks it would be a good idea to emulate medical schools by fully aligning our curriculum with the bar exam so as to turn the three years of law school into one extended bar prep course.  Among other reasons, the material tested on the bar is quite static and doesn’t reflect the realities of today’s law practice.   It also wouldn’t make much sense for schools whose students take the bar exam in many different jurisdictions.   Also, the bar exam is just not equivalent to the three rounds of USMLE exams in actually testing both the knowledge and application of knowledge needed to be a successful lawyer.  If it was, we wouldn’t hear so many complaints about how students who have passed bar are never-the-less not “practice ready.”

Tomorrow—where can we get the help we need to find out this information, and who is going to pay for it?  Spoiler--Access Lex has a program.

New Research on Law-Student Resiliency

Student resiliency and well-being are on-going concerns to the legal education community. Counselling, academic support, and activities like yoga have been introduced in law schools to address these concerns. Although these strategies are undoubtedly beneficial, a recent research paper suggests that legal educators may have an additional, all-encompassing solution under their noses – the cultural mindset we create in our classrooms.

In the paper The Jury Is In: Law Schools Foster Students’ Fixed Mindsets, Susan Shapcott, Sarah Davis, and Lane Hanson suggest that the law school experience promotes fixed mindsets in law students. Many educators are familiar with Carol Dweck’s work and the concept of mindsets; when students perceive intelligence as an innate trait that one either has or doesn’t have, this is a referred to as a fixed mindset. At the other end of the spectrum, perceiving intelligence as something that develops with effort, strategy and time is referred to as a growth mindset.

The authors reported that third year law students’ mindsets were significantly more fixed than first year students’ mindsets. How does this relate to resiliency and well-being? Quite simply, mindsets are predictive of students’ goals and resiliency to challenges (an inherent part of law school). As students’ mindsets become more fixed, they are more likely to adopt goals intended to demonstrate how smart they are. Consequently, they are less likely to ask for help when they most need it, they will perceive professors’ feedback as judgement, and they may interpret mistakes as evidence that they just don’t have what it takes to succeed. Not only are these behaviors motivationally problematic, they are problematic for mental well-being.

Across a range of fields, growth mindsets are associated with adaptive learning strategies and mentally healthy behaviors that promote well-being and resiliency. So arguably, this is the culture that we should be focused on developing in law schools. However, as Shapcott, et al., report, the opposite may be happening. The longer students are exposed to law-school culture, the more fixed their mindsets become. Therefore, it is time to recognize that there is something adrift in our culture. Furthermore, we cannot simply focus on students’ mindsets without reflecting on the role we as educators play in influencing them.

Students’ well-being won’t change much until law schools work to change the culture from within. Law school classrooms that help students develop growth, not fixed mindsets will do more for students’ resiliency and long-term growth. This starts with faculty members reframing how intelligence and lawyering skills are described (they are learned skills, not innate gifts). When faculty share their own vulnerabilities and struggles to grasp concepts, they create a classroom culture where students are less afraid to ask for help. And when professors give accurate feedback intended to teach students how and what is required for them to improve, rather than simply judging their intelligence, they will help create a growth-mindset culture that reduces students’ stress and increases their strategies for manage their learning experience.

Legislation & Regulation and the Bar Exam

Most readers of this blog will be familiar with the performance test (PT), a portion of the bar exam in 42 states and D.C. (Forty states use the Multistate Performance Test (MPT); examiners in Pennsylvania and California write and administer their own PT.) For states using the Uniform Bar Exam (UBE), the MPT counts for 20 percent of the overall exam score.

I wrote about the performance test previously here. I extolled its virtue as the only part of the exam that exclusively tests lawyering skills, requiring zero memorization of legal rules; and I bemoaned its status as the ugly step-child of the bar exam that gets next to no attention in conversations about exam reform.

Over time, bar examiners have concluded that certain substantive subjects have grown or lessened in importance to law practice such that they have added subjects to the MBE (e.g., Federal Civil Procedure) or dropped subjects from essays (e.g., Secured Transactions, in some jurisdictions). Why not the same with skills on the PT? Is it not fair to say, for example, that a greater percentage of beginning lawyers today work in fields dominated by regulations than did in 1993 when the MPT was born? Yet the vast majority of PTs to this day test the ability to reason from cases, not from statutes or regulations without the aid of cases.

The anti-regulation bent of the current administration notwithstanding, we live in a heavily regulatory state. Lawyers in numerous specialty areas, including health care law and environmental law; lawyers working for government agencies; or lawyers serving as in-house compliance officers—among the most important skill sets for all of them are reading, interpreting and applying statutes and regulations. (Compliance, by the way, has been a growing field, and positions in compliance are J.D. preferred jobs increasingly being filled by newly licensed lawyers.) Many law schools have responded to this reality by adding a 1L course on legislation and regulation to provide law students the needed foundation for practicing law in our heavily regulatory state. (A running list, accessible from here, indicates that about 30 law schools are offering a course of this nature in the first year.)

In reviewing summaries of the last 28 MPT items (covering the last 14 exams back to February 2010), I found only one among the 28 that provided only statutes and regulations and no cases as part of its law library. Typically, PTs presenting issues of statutory application have both statutes and cases in the library, and the cases provide the statutory interpretation needed to answer the issue posed. That’s still common law reasoning—a very important skill, to be sure, but not very helpful for a lawyer when the only applicable law is a statute or a regulation.

All of the above helps to explain how pleasantly surprised I was to see a purely statutory issue on the February 2017 performance test on the Pennsylvania Bar Exam. The assigned task was to write a memorandum analyzing and supporting the client’s position on three legal issues raised by opposing counsel in a motor vehicle accident. One of the issues was whether a driver had violated the state’s law banning texting while driving. The text of the law appeared in the materials, and applicants had to dissect its language and apply it to the facts—all without the aid of cases in the materials, each of which was relevant only to other issues. This is basic stuff, but exactly the kind of basic stuff that beginning lawyers must be able to do well.

What is a “Fact”? A “Story”?

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

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

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

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

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

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

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

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

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