Best Practices for Legal Education

Geoffrey Hazard, chief architect of the Model Rules of Professional Responsibility, cautioned that the Model Rules should be understood as “a code of legal standards, not ethics.” Geoffrey C. Hazard, Jr., Rule of Ethics: The Drafting Task, 36 The Record 71 (1981).  The Preamble to the Model Rules also makes clear that the Rules do not provide everything a lawyer needs to resolve ethical dilemmas.  The lawyer must also rely on not only “personal conscience” but also “sensitive professional and moral judgment.”  Indeed, the Preamble acknowledges that all difficult ethical decisions arise from a conflict between the lawyers duties to the client, to the legal system, and to “the lawyer’s own interest in remaining an upright person.”  Anyone who thinks that the Model Rules by themselves should serve as a lawyer’s sole guidance for making ethical decisions is, therefore, mistaken.  The Model Rules set a minimum threshold for conduct that will avoid discipline.  For the many areas left to the lawyer’s discretion, the Rules give little direction.

               The two influential 2007 publications—Best Practices for Legal Education and the Carnegie Report’s report–noted that focusing exclusively on the Model Rules misleads law students.  The Carnegie Report put it this way:    “When legal ethics courses focus exclusively on teaching students what a lawyer can and cannot get away with, they can inadvertently convey a sense that knowing this is all there is to ethics.”   Both Carnegie and Best Practices challenged law schools to help students cultivate a professional identity—an internal sense of values and principles they will integrate into their professional life.    Doesn’t that sound like the “personal conscience”   to which the Model Rules’ Preamble refers?  

               If we accept the recommendations of the 2007 reports and want to help students cultivate an ethical code and to develop a method for resolving ethical dilemmas, the challenge to legal educators is in finding teaching methods that do so.  I coauthored an article—http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414015—that explored teaching practices for developing both professional identity and ethical decision-making.   Many of the proposed methods come from my and my coauthor’s classroom experience.  The article also offers approaches used by other legal educators and even by teachers in other disciplines (e.g. medicine).    To date the most effective method I have found is the series of reflection papers described at pages 398-406 of the above article.   The approach involves a series of assignments in my Civil Pretrial Practice and Procedure course.  The course materials provide “gray area” situations in which a particular course of action gives an advantage to the client, at the expense of undermining the legal system or compromising the lawyer’s integrity.   The course syllabus requires students to prepare reflection papers in which they: (1) describe the conflicting interests and values; (2) discuss all Model Rules at issue, as well as at least one other pertinent source addressing the ethical issue; (3) talk to a mentor, identify the mentor, and recount the  conversation with the  mentor about the issue;  (4) in light of steps 1 through 3, describe who will be affected by the different potential courses of action and how the person or entity will be affected; and (5) form an opinion as to the issue in light of all of the considerations.   

               Why bother with all of this effort, some ask, if evaluating the client’s interests, curbed only by the Model Rules, allows for quicker decisions?   The full answer to that question is for another blog post.  For now, consider this: growing evidence shows that lawyers who make these decisions without reflection become increasingly disillusioned over time.   Those who wrestle with ethical decisions are more likely to respect themselves and be respected by their peers.  Is personal integrity worth the struggle?  I leave that question for the students.   But I’m satisfied that we are developing teaching methods that will give students a framework for the process.   Although they will need to practice making these decisions to develop the judgment we admire in the best lawyers, the presence of a framework will advance their maturation as ethical lawyers.

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This post alerts readers to a proposed change in the bar pass accreditation standard and questions that change raises.  It also asks whether the proposed accreditation standard change opens the door to a bigger discussion about the need for a licensing exam that better reflects the competencies needed to practice law.

Proposed Change

A proposed change to ABA Standard 316, the bar accreditation pass rate standard, is out for notice and comment. The proposed change simplifies the standard to a single criteria: “At least 75% of a school’s students who sit for a bar exam must pass an exam within two years of graduation.”

The proposed standard eliminates the current provision that accounts for the significant variations in states’ overall bar pass rates. Currently, schools are in compliance with Standard 316 if “in three of the last five years, a school’s first time bar passage rate is no more than 15 points below the average first-time bar passage rates for graduates of ABA approved law schools taking the bar exam in those same jurisdictions.”

Questions The Proposed Change Raises

A recent Society of American Law Teachers comment letter provides an in-depth exploration of numerous unanswered questions the proposed accreditation standard change raises.  Those questions include:  1. its impact on schools in states with historically low bar pass rates; 2. its impact on schools in states which recently have adopted the UBE that are in the process of adjusting their curriculum to conform to the UBE; and 3. its potential impact on access to legal education if the proposed change causes schools to rely even more heavily on LSAT scores in their admissions process. These questions suggest a need for more information before adopting this proposed Standard.

Others who want to comment on the proposed change have until July 29 to do so.

Proposed Standard Prompts Questions About the Exam

Schools clearly have an obligation to ensure their students are able to obtain a law license and accreditation standards must ensure schools meet that obligation.  That said, this proposed standard change should open the door to discussions about the bar exam itself.

Why do we have an exam that requires memorization of thousands of legal rules, many of which may be inapplicable in an examinee’s own jurisdiction?  Does an examinee’s ability to read, issue spot, analyze and answer two hundred multiple choice questions in 360 minutes [allowing less than two minutes per question] really demonstrate that person’s minimum competence to practice law?    Is an exam that tests a wide range of doctrinal areas but only a few lawyering skills, and that tests lawyering skills in ways largely unrelated to law practice, the best way to  protect the public from incompetent lawyers?

As the SALT comment notes, many states “have attempted to address the disconnect between the bar exam and law practice with alternative licensing requirements designed to ensure newly licensed lawyers possess a broader range of competencies than those tested by bar exams.”   To better protect the public from incompetent newly licensed lawyers, some states have added pro bono work or experiential learning and practice requirements. These additional requirements may help remedy bar exam inadequacies but they also  create additional hurdles for future lawyers, present regulatory and administrative challenges for state licensing agencies, and create a wide range of issues for schools with a national student body.

At the same time there is a push for national uniformity in law licensing via the Uniform Bar Exam [UBE],  we see an array of state licensing requirements.   If we had a bar exam that actually measured minimum competence to practice law, would states need to develop individualized supplementary licensing mechanisms?

A Time For Change?

The NCBE has engaged in a concerted campaign to push states to adopt the UBE.  What would happen if the tables turned and states pressured the NCBE to develop a test that better measured competence to practice law? What would happen if some entrepreneur developed a superior law licensing exam and threatened the NCBE’s virtual monopoly over the law licensing process? Would we then have a test that more accurately reflected and assessed the skills lawyers need?

If there is a demand, a product appears. That certainly is what we saw in the rapid changes to legal education models brought on by public demand.

As colleagues and I wrote about in a recent article, many legal educators and scholars have developed a range of assessments that measure a much wider range of lawyering skills than is currently tested on bar exams.  Why isn’t the NCBE working with those people to develop a better bar exam?

While legal educators adapt what and how we teach to help prepare students for the existing bar exam, we also should be questioning the validity of that exam.  Discussions about the proposed amendments to Standard 316 provide an opportunity to push for much needed changes to the bar exam.

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The world of legal practice is changing.   We regularly hear about new technologies that have the potential to remake long-term approaches to practicing law.  From data analytics to self-help materials, lawyering and access to information about the law is undergoing tremendous change.

The AALS Clinical Section’s Technology Committee is gathering signatures to petition the AALS to create a new Section that would address these issues.  The new section would bring together academics and staff from throughout the academy who share a common interest in the advancing scholarship and teaching about role that technology is playing and will continue to play in legal education and the practice of law. We believe that it is important that members of the legal academy become familiar with and take a lead in driving the changes being made and affordances provided by technological innovations in the delivery of legal services.  We envision that our members will teach in diverse subject areas, and will include academics (doctrinal, clinical, legal writing), librarians, and administrators, among others.  

Technology and the practice of law:  The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems.  It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community.  The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering.  The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.

Technology and legal education: Many schools are currently in the process of strategic planning and thinking about the future of legal education, including developing learning outcomes and assessment methods, considering educational technology options, and considering the sequence and structure of the entire curriculum.  This Section will consider the role that educational technologies may play in the future of legal education.  The Section will (1) lead a conversation about whether educational technologies that have been developed and used successfully in legal education may be able to scale to other law school classes; (2) introduce law professors to new educational technologies being developed for use in other areas of education so as to inspire this group of educational leaders to be at the forefront of change as it relates to technology and the legal academy, and (3) introduce law professors to pedagogies used to expose students to emerging technologies that are being used in the practice of law.

We are seeking signatures of those in the academy who support the creation of this new section. If you are interested in joining the section as a founding member, please add your name to the list, available here. (AALS requires that we obtain at least 50 signatures from full time faculty members and/or professional staff from at least 25 different schools).

Valena Beety (West Virginia)

Warren Binford (Willamette)

Michael Bloom (Michigan)

Larry Bridgesmith (Vanderbilt)

Alyson Carrel (Northwestern)

Jenny Brooke Condon (Seton Hall)

Ron Lazednik (Fordham)

John O. McGinnis (Northwestern)

Michele Pistone (Villanova) Chair

Jeff Ward (Duke)

Leah Wortham (Catholic)

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So, robot-lawyers now work in law firms?  What’s next robot-judges?

Thanks to my colleague Professor Christine Sgarlata Chung for forwarding me this Fortune article.

Global law firm Baker & Hostetler, one of the nation’s largest, recently announced that it has hired a robot lawyer created by ROSS Intelligence, Futurism reports. Ross will be employed in the law firm’s bankruptcy practice which currently employs close to 50 lawyers.

And according to ROSS’s producers, more law firms are signing up.   Fortune has a running poll on whether automation means a decline in jobs with 64% saying yes as of a few moments ago when I voted. The article notes,

Some argue that this isn’t an issue because job availability has historically increased as technology advances, but artificial intelligence is a fairly new territory that many worry can put an end to that trend.

As described in the brief article, the robot’s capabilities don’t sound much more impressive than the latest update of Westlaw or LEXIS-NEXIS in answering legal research questions. However, it must be more impressive if law firms are going to pay for the robot, right?   And although my question about robot-judges was facetious, perhaps that day is not far off?

I would love to know what our readers think.

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From our colleague Margaret Barry, “Please join us next month for a thoughtful discussion about how to identify and effectively assess experiential learning outcomes within your courses and across the curriculum!”

To see the planned schedule for the conference, click here.

To see a list of the confirmed conference presenters, click here.

For information about hotels, click here.

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By now, most law professors know the phrase “experiential learning.” But the responses to integrating experiential learning in a given course still run the gamut. In this post, I want to share with you a few examples of how you can invite experiential learning partners into the classroom to both help the professor create an engaging experience and simultaneously expand the impact of experiential learning beyond that professor’s course.

One method is to invite upper-level students to participate in the simulation. This can be either via students the professor knows (a research assistant, someone the professor coached for moot court or trial team, etc.) or it could be a partnership with a full upper-level class. For example, the professor doing a simulated mediation exercise in a 1L course could invite students from an upper-level Mediation course to offer feedback. Or invite members of the moot court team to serve as judges in a simulated appellate oral argument in Torts or Legal Research and Writing.

Potential partners are not limited to upper-level students—some professors use multiple sections of the same course. Professor Jones might have her Civil Procedure students collectively draft and serve a discovery request (or a motion, or a complaint, etc.) on Professor Anderson’s Civil Procedure course, which could then collectively craft a response. Students in separate Contracts courses could do the same thing with drafts of a contract. The idea is easily adaptable to a variety of course topics beyond the 1L year.

Some professors take it a step further and draw alumni or community volunteers into the classroom to serve as potential jurors in a voir dire that Criminal Law students select from, or partner with local drama schools to recruit fictional plaintiffs for simulated attorney-client meetings. If the mock trial or other event is detailed and engaging enough, you could even invite local K-12 students to come observe the simulated proceeding as a safe introduction to the justice system (and a nice way to offer something to the community at minimal cost to the school).

Experiential learning has value to students and professors, as many now have shown, but through these and other methods, it also has value to other individuals that partner with the performance. So try it out if you haven’t already! Your students will thank you.

You can read more about ways to add experiential learning to your course in this list of ideas and resources: goo.gl/59KlUP

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As a second-year law student, I am always asking individuals “What attributes do you think make a new associate successful?”  Many of the individuals I have asked answered with “Well it depends…” and listed generic things, such as hard work, responsibility, and motivation. I appreciated the answers, which provide some insight, but I would have loved more in-depth (specific?) advice.  Within the next year, I will be applying for, and hopefully obtaining, a job and would love to know what employers and co-workers think are the attributes of their best new employees.  Recently, some esteemed members of the legal educational community launched a study about the best law mentors and supervisors in the country.  If you would like more information on this study, please go to, http://www.bestlawmentors.com.  Now, these same legal professionals are taking a look at the best new lawyers.  The individuals who are conducting this study reached out to the Best Practices community, to enlist our assistance in finding the best new lawyers. The individuals conducting the study are specifically looking for new lawyers who have been in practice seven years or less.  The goal is to find the most successful new lawyers in the country, study those new lawyers in depth, understand why they are so effective, and, in so doing, synthesize and state a set of behaviors, attitudes, and habits of mind for the benefit and inspiration of new lawyers. To nominate someone for the study, please go to, http://newlawyers.weebly.com/nominate-a-lawyer.html.  The results from this study will be published in a book and if you would like to visit that this site, please go to, http://newlawyers.weebly.com/.

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How can a law school teach students to work in teams?  To work collaboratively?  To nurture their creativity and give them a chance to work on a cause larger than themselves?  In a recent  forthcoming article in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba.   In the piece, I explore these questions and more.

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For the past 8 years or so, I have taught Family Law to second- and third-year law students in a lecture course.  For several years, I taught the course both Fall and Spring semesters while operating my clinic simultaneously. Next year, thanks to a brilliant colleague who also teaches Family Law, and my new role directing our externship program, I will not teach the Family Law lecture course.  Uncertain about when I will return to this course, I’ve experienced quite a bit of nostalgia as I prepare for each class period. Fueled by that nostalgia is a desire to engage my students as effectively as possible.

Years ago as a new  law professor, I preferred the Socratic method even in this upper level course, partly because it provided me with information about student engagement. I still use it to an extent, but this semester I have used some creative methods alongside it that have been transformational in my classroom.

QUICK WRITES: giving students a writing prompt during class, and then a few minutes of silence to reflect on that prompt in writing, is a technique I have come to love as a teacher.  This semester I assigned one during Day One of class, using a quote from the introduction of an old casebook I used years ago as the prompt.  The quote summed up the theme of my course, but I didn’t tell them that before assigning the quick write.  Quick writes help students focus on the material and synthesize it without getting caught up in their own insecurity about responding to their professor.  There is no time for that as I only give them around 5 minutes to write.  Furthermore, the written submissions being visible only to me provides a layer of security that speaking in class does not.  I have used quick writes a handful of other times this semester, and the process of giving direct written feedback on them to each student keeps me fresh as a teacher and helps me tweak my upcoming material in a targeted manner.  –N.B. this is burdensome in a large course unless you have a teaching or research assistant to help you read and respond to the quick writes.

PROBLEMS:  Twice this semester I have spent extensive time during class working a problem with the students that illustrates the material in the casebook. One problem was in their assigned reading, and we worked it in class together.  The other time I used this method, I broke them into groups and asked them to develop potential solutions, based on the legal  authority we had already studied, and to report back in writing. Each group member had to report on a separate aspect of the problem.

OTHER GROUP WORK: Building on a prompt in my casebook’s teaching manual, I recently stopped in the middle of class and divided them into two small groups, each of which was assigned one of the remaining cases we had yet to discuss during class. These were cases in the reading they had been assigned for that day.  I gave them prompts on PowerPoint slide regarding the fairness issues, the court’s analysis, and the justifications for the decision compared to the court’s alternative resolution not chosen.  They  met in groups for 10 minutes and then reported back to the entire class orally.

Engaging my students with these methods has drawn out even the most reserved student just a little bit. It has also given me the opportunity to engage deeply with each student privately through written exchanges on substantive and reflective issues. That private, written feedback enables me to guide their expectations about writing for my exam as well.  Finally, these creative teaching methods enrich and embolden our classroom environment. Students ask more daring questions and frame their responses to doctrinal questions with more sophistication than I have seen in prior classes.  If I have to take a break from teaching something I love so much, this is a way to enter that break with a sense that I have cultivated some innovative learning about the law.

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At many schools,  faculty members currently are applying for summer research grants.  This blog posts suggests that in addition to research grants, schools consider summer teaching innovation grants. Just like good scholarship, developing experiential learning courses or course components takes time.

Summer Teaching Innovation Grants – An Experiment that Worked

At Georgia State, like at many schools, our dean has encouraged us to integrate experiential learning throughout the curriculum.  And, he has put his money where his mouth is.

Faculty can compete for  summer teaching innovation grants which are funded at the same level as research grants. Both junior and senior faculty members have taken advantage of the summer grant  opportunities to either revamp existing courses or create new ones.

What A Grant Can Produce

Video Evidence

This  video illustrates some of the courses developed through the innovation grants.

We use  the video as  an admissions tool and at alumni functions to  highlight the law school’s innovative and experiential teaching across the curriculum.

Some Examples

In the video, you will hear about numerous courses that integrate experiential learning.  Many of those courses were developed as a result of summer teaching grants. For example:

Professor Corneill Stephens, after twenty years of teaching first year contracts, radically revamped the second semester of his course.  That semester now devotes substantial time to “hands on” contract drafting and interpretation.

Professor Erin Fuse Brown, who has only been teaching a few years, developed a capstone simulation health care transactions course, taught with practicing attorney adjuncts.

Professor Jessie Gabel Cino,  shortly after she was granted tenure, created a bankruptcy assistance program course in which students work with practicing attorneys to handle simple bankruptcies.

These courses, described in more detail in the video, are just a few examples of courses that came into being as a result of a summer teaching innovation grant.

Grant Criteria

The grant award process is competitive and judged by the following criteria:

1. The project must result in the creation of a new class or redesign of an existing one that will integrate skills/professional values/experiential components not traditionally taught in conventional courses.

2. The project proposal must include a statement of learning objectives and outcomes for the course.

3. The project must include a plan for assessment of learning outcomes, including both formative as well as summative assessment methods, as appropriate.

4. The project must be capable of being completed over the summer in which the grant is received and implemented preferably in the ensuing academic year.

5. The project proposal describes a plan for making the new or redesigned course sustainable (capable of being taught on a recurring basis.

Creating a Culture of Teaching Innovation and Excellence

All grant recipients must present to the faculty in the semester following their grant-based course.  This presentation allows other faculty to learn about new courses or changes to existing courses and prompts thinking about one’s own course.

The video describes courses that came into being due to summer teaching innovation grants, and includes some course innovations that resulted simply from a culture which demonstrably values teaching innovation through concrete actions such as summer grants, weekly informal coffees to talk about teaching, and emphasis on teaching in our annual reports.

It’s not too late to for your dean to offer summer  grants as a way to further develop institutional support for teaching innovations.  If these are not already in place at your school, perhaps you can encourage your dean to consider this option.

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Here’s a link to eleven videos produced at the 2015 AALS Clinical Conference. Each one addresses pedagogical issues that law professors are currently grappling with, including assessment, infusing experiential education into doctrinal courses, encouraging learning through reflection, and teaching technology.

The AALS supported this project, as did the Planning Committee for 2015 AALS Conference on Clinical Legal Education. Take a look!

https://www.youtube.com/channel/UC9Butr8LBC8yMXawcq8jjnw/playlists

Individual videos are available here:

Jeff Baker (Pepperdine University School of Law) Trust and High Expectations Improve Learning Outcomes

Esther Barron and Steve Reed (Northwestern University School of Law)Bringing Experiential Learning into the Traditional Classroom

Paul Bergman (UCLA Law), “Reel” Teaching – Teaching With Film Clips

Warren Binford (Willamette University College of Law) Designing Your Curriculum to Maximize Student Learning

Eduardo Capulong (University of Montana School of Law) Working With Actual Clients In The First Year

Alyson Carrel (Northwestern University School of Law) Disrupt the Norm: Technology for Today’s Classroom

Wallace Mlyniec (Georgetown University Law Center) 40 Years of Assessing Assessment

Michele Pistone (Villanova University Widger School of Law) Improving Learning Through Formative Assessment

Joy Radice (University of Tennessee College of Law) Thinking and Acting Like Lawyers: Reflection-in-Action in the Law School

Alex Scherr (University of Georgia School of Law) Integrating Reflection Into The Curriculum

Leah Wortham (The Catholic University of America) Equipping Law Students to Thrive in a Changing Legal Services Market

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Why are some students able to handle setbacks and struggles in law school, particularly first year, while others seem almost paralyzed and stuck in a pattern of underperformance? The answer likely stems from their resilience—that is, the ability to “bounce back”. Resiliency is a set of skills that allow people to not just get through hard times, but to thrive and learn from them.

The pressures on new law students to do well are numerous, and in a tough job market, can seem tremendous. Whether it is a need to know they really “belong” in law school, to perform to personal or family expectations, or overriding concerns about the ability to get a job and repay students loans, the stresses are abundant. When students receive a grade lower than expected, as many do for possibly the first time, they can become mired in self-doubt, which can lead to a cycle of underperformance.

It is clear to those of us who teach these students that the worry and doubt get in the way of performance. Science is now showing us exactly how, and making the argument that resilience or “grit” is as necessary to law school success as a high LSAT score. Thanks to modern imaging, scientists now know how our brains perform during times of stress. Watching blood flows, scientists can see how different people react to stress. And while most of us might think of stress as major catastrophes—fires, floods, and the like, our bodies react to smaller stresses like traffic, disagreeable bosses, or difficult exams, in much the same way. Even feelings like rejection or loneliness stoke this stress response in the brain. The neural pathways which are stimulated by all these stressors, big or small, become stronger and stronger the more stressed we are. Soon, this stressful mode of thinking and operating can become our norm. The good news is that science shows the brain can be trained in a way that does not use the stress neural pathways, and in time this can become the new way to handle stress.

The secret lies in the connection between the frontal cortex—the brain’s manager, and the amygdala- the brain’s emotional center. A stronger connection means the frontal cortex is better able to control the amygdala and tell it to calm down. How to build that connection? Here are some simple tips:

1. Face the things you fear, don’t run from them. This relaxes the fear circuit.
2. Develop a strong network of social support. One study revealed that when people were exposed to a stressor in a lab, heart rate and blood pressure did not rise as much if they were with a friend or loved one, as opposed to receiving that news alone.
3. Work the body’s muscles through exercise. This also builds resiliency in the brain because exercise spurs development of new neural pathways, which can replace those depleted by stress.
4. Be mindful. A 2010 Harvard study showed people spend 47% of their day thinking about things other than what they are actually doing. There are myriad materials and apps available online-from simple breathing exercises to guided meditations.
5. Reach for support when needed and share your true feelings.
6. Don’t beat yourself up or dwell on the past. Pushing out the negative thoughts with positive ones can lead to dramatic reductions in stress and increases in resiliency.

Students who can tamp down their stress responses will be more able to focus and perform as they hoped when joining law school.

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