Best Practices for Legal Education

Law students are taught the importance and desirability of pro bono work, and rightfully so. Pro bono service has obvious benefits to our students, to young lawyers, and to society. In 2012, New York emphasized its commitment to pro bono by becoming the first state to require pro bono service for bar admission. In law school, while discussing the value of pro bono service, we can also provide our students with tools to evaluate all the pro bono requests they may receive once they enter legal practice.

While in law school, students are bombarded with opportunities to volunteer – sometimes for credit, sometimes for bar admission requirements, and sometimes simply for the pleasure of helping others. After graduation and admission to the bar, new lawyers are similarly bombarded with opportunities to take on free legal work and perform pro bono services. State and local bar associations and local not-for-profits, as well as individual clients, are frequently searching for free lawyers. How do experienced lawyers evaluate these opportunities? And what can we teach students in order to help them evaluate the risks and benefits of pro bono opportunities once they are admitted to the bar?

Experienced lawyers know what questions to ask. They know how to assess the risk, the time commitment, and the potential benefit to clients of the pro bono work. Students need to learn how to assess pro bono opportunities. A search of available resources for students to assist them in independently scrutinizing pro bono opportunities yielded little pertinent information. Many schools have online information about the individual school’s available programs. As described below, some schools address post-graduate pro bono for those students seeking jobs in biglaw.

Yale Law School has information on “Critically Evaluating Pro Bono Policies” https://law.yale.edu/student-life/career-development/students/career-guides-advice/critically-evaluating-pro-bono-policies for law students interested in summering at big law firms. The information provided is useful to the small number of law students nationwide who end up in large firms with significant pro bono programs with dedicated directors of pro bono. The questions posed (like “has the firm received accolades for its pro bono work?”) don’t often apply to students and new lawyers working in firms with fewer than ten attorneys. Harvard likewise provides a guide in “An Introduction to Pro Bono in the Law Firm Setting” https://hls.harvard.edu/content/uploads/2008/07/guide-pro-bono.pdf that addresses opportunities in large law firms. These large firms have likely vetted their pro bono partners, assessed the merits of the work, and selected not-for profits or clients with whom to work. Students selecting a firm based on their commitment to pro bono ought to be congratulated, but still represent a select few of the annual law school graduates. According to NALP’s job statistics, http://www.nalp.org/uploads/SelectedFindingsClassof2017.pdf, 28.1% of entry level law firm jobs were in biglaw for the class of 2017, while over 35% were at firms with fewer than 10 attorney.

The available resources focus on the 28% of students entering firms who enter biglaw. While the pro bono evaluation resources are dedicated to those accepting the 28% of jobs in biglaw, what about everyone else? We can step in and fill the void by teaching our students how to evaluate the pro bono opportunities and programs.

We teach legal ethics. We teach professionalism. We teach legal writing. In each of these classes, we can and should do more to teach students to think critically when evaluating pro bono clients, pro bono matters, and not-for-profit legal service providers. Young attorneys and soon-to-be law graduates planning on working in private practice should at least be taught the questions to ask, to use the answers to evaluate the risks associated with the opportunities, and, in fact, to try to pair with local legal service providers or courts to benefit from some of the protection provided by an umbrella organization. Even then, however, new attorneys should evaluate the support provided by the legal services provider. Some legal service providers simply complete intakes and assign pro bono cases to volunteer attorneys. The attorneys then represent the clients with varying amounts of support from the legal service providers.

To that end, here is a non-exhaustive list of questions students and recent graduates can be taught to ask in order to evaluate the risks and benefits of certain pro bono opportunities:

• How many appearances does this type of matter usually require?
• Does the legal services provider have meeting space for meeting with the client?
• Under whose malpractice insurance does this matter fall?
• Is the program of the type (“sponsored by a nonprofit organization or court”) such that the relaxed conflict of interest rules of 6.5 apply?
• If there are costs incurred (filing, copying) who bears them?
• What kind of continued support does the legal services provider offer? Is there continued oversight by a staff attorney of the legal services provider?
• Who is ultimately responsible for the case – the volunteer attorney or the legal services provider?
• What if the volunteer needs to step down and cease working on a client, case, or matter? Will the legal services provider step in? Are there procedures in place? Do the provider’s policies add additional burdens to those already in place in the state’s procedural rules for withdrawal? If the attorney can no longer ethically represent the client, will the legal services provider step in?
• Even if the attorney is responsible for the matter, if it veers into areas wherein the attorney has less experience, is there someone at the legal services provider who can help?

The above questions are largely geared to pro bono matters managed and assigned by not-for-profit legal services providers, but can be tailored for other situations. While there are no right answers to the questions, the specific answers in any situation will assist recent law graduates in assessing volunteer opportunities and determining which ones suit their current needs and abilities. Failure to ask these questions, and our failure to teach our students to ask them, can lead new volunteer attorneys into unintended costly, long, and time-consuming relationships with pro bono clients and service providers. Instead of sending our students blindly out into the world of pro bono, we can help them develop an appropriately clear-eyed devotion to it.

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This Thursday, the Republican controlled Senate Judiciary Committee will hold its 5^th day of hearings on the controversial Judge Brett M. Kavanaugh’s nomination to be an Associate Justice of the Supreme Court of the United States the Supreme Court. The controversy surrounding his nomination and his treatment of women when in high school and college should be front and center on Thursday starting at 10 am (ET) (depending on the latest revelation?).

Young activists’ and law students’ interest in, or fear of discussing, this subject is palpable across campuses as evidenced by the Believe Survivors walkout. (Another is scheduled for this coming Thursday.) Yale law school professors cancelled or were forced to cancel classes last Monday because of activist student voices, to the dismay of other students.

Given that a “survey conducted by OVW and the Bureau of Justice Statistics found that an average of one in four undergraduate females experience sexual assault by the time they finish college,” it is likely that there is at least one, if not more, survivors in every class we teach. Therefore, how should we as legal educators respond, in and out of the classroom, to the challenging climate which we and our students now face?

Here are some preliminary thoughts and I hope our readers add more:

1. Educate each other and our students about how to have this discussion without playing into gender myths and sexual assault implicit biases (See my discussion of five simple rules )
2. Discuss misplaced and misunderstood concepts of presumption of innocence and due process.(Capital Pressroom radio interview with Professor Christine Sgarlata Chung and myself)
3. Discuss what the burden of persuasion and the burden of proof means and why the national conversation is playing havoc with these concepts.
4. Assign material on Anita Hill.
5. Skip taking attendance Thursday.
6. Stream the hearing into your class. (https://www.judiciary.senate.gov/hearings ) After anonymous input from all students, I am streaming the hearing starting at 10 — albeit this is a no-brainer for my Domestic Violence seminar since the scheduled topic is sexual assault!
7. Wear a button, a T shirt, have something on your person or PPT screen that shows you know that there are likely survivors in your classroom and that you support them – whether or not you support Dr. Ford or Judge Kavanaugh.
8. Discuss Vicarious Trauma of Lawyers who work with Sexual Assault/Intimate Partner Violence Survivors and the need for self-care.
9. Visit this site and share it with your students to encourage all to “Start By Believing”
10. Have at your fingertips counselling and other resources particular to your school for those experiencing PTSD.

What are your thoughts?

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Litigation offers many potential benefits.  It can help people solve difficult problems, make relationships and institutions function properly, and promote justice.  It enables people to enlist legitimate, independent government officials to resolve disputes when the parties can’t resolve disputes themselves.  Indeed, litigation provides mechanisms for structuring dispute resolution processes that enable most parties to ultimately settle disputes themselves, without court adjudication.  Individuals and organizations rely on the rule of law so that they can enjoy their legal rights, protected from fraud and other illegal behavior.  Litigation is essential to enforce the rule of law, deterring potential lawbreakers who would behave with impunity if they had no fear that they would pay a price for acting illegally.  It also provides some remedies for litigants who have been harmed and contributes to the development of legal doctrine.

While parties may receive significant benefits from litigation, they generally also incur substantial costs in the process.  This post describes some of these costs and suggests that faculty incorporate these factors in their simulations and Stone Soup assignments in clinical, externship, interviewing, counseling, negotiation, and mediation courses.  It includes questions that lawyers and mediators should ask their clients in real cases – and that students should practice in simulations.

Professionals’ Problems in Complying with Duties to Help Clients Make Well-Informed Decisions

Lawyers and mediators are required to help clients develop realistic understandings of their cases in litigation.  Rule 1.4(b) of the Model Rules of Professional Conduct states: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  Rule 1.0(e) defines “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Helping parties make informed choices is an important element of self-determination under the Model Standards of Conduct for Mediators.

This is way more easily said than done, however.  Everyone is subject to numerous cognitive biases, and litigants and lawyers are especially prone to some biases that impair their decision-making.  The dynamics of lawyer-client relationships aggravate decision-making problems, often leading lawyers to confuse clients rather than communicate clearly.

Litigation is inherently uncertain and it’s hard to accurately predict court outcomes or the tangible costs of litigation, i.e., legal fees and expenses.  While most lawyers and litigants probably don’t use formal decision analysis techniques, they understand the general logic.  They recognize that there is a range of plausible court outcomes and that some options are more probable than others, leading to some estimated result or range of results.  They also know that clients will incur the tangible costs, which generally can be quantified though not predicted with certainty.

There are numerous knotty problems that make it especially hard to assess intangible litigation costs, as described below.  Based on extensive research by Michaela Keet and Heather Heavin, I have been collaborating with them to write a guide book for lawyers and mediators to help clients assess their interests affected by litigation, including both tangible and intangible costs.  It will be published by the ABA Section of Dispute Resolution and is tentatively titled, “How to Help Clients Make Smart Litigation Decisions:  Carefully Assessing Clients’ Interests and Risks.”

Carefully Assessing Material Risks of Intangible Costs of Litigation

Sometimes, litigants’ intangible costs are much more important to them than the tangible costs.  Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the various intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions.

Individual litigants suffer “litigation stress” to varying degrees.  Litigation can interfere with their normal mental, emotional, and physical lives.  Participation in litigation can produce flashbacks, nightmares, and physical symptoms.  Some parties obsess about their cases, causing difficulty with social situations and in going to work or school.  Litigation stress can degrade people’s cognitive functioning, depleting mental resources, stimulating fight-or-flight reactions, and increasing the risk of cognitive biases.  Litigation can disrupt diagnosis and treatment of parties who have been physically or mentally injured.  The legal process also can strain parties’ relationships, causing their support systems to “burn out.”  Litigation often requires parties to repeatedly provide detailed accounts of traumatic events to strangers.  This can keep them focused on the past, reaffirming dysfunction while undermining attempts to move forward.  Litigation stress can interfere with parties’ abilities to litigate effectively, impairing their memory, for example.  If parties have to make too many decisions in a short period, they are at risk of suffering “decision fatigue.”

Litigation stress also can damage lawyer-client relationships.  Clients’ dependency and vulnerability can increase their sensitivity to perceived slights such as their lawyers’ apparent or real disinterest in communicating with clients, and possibly declining confidence in getting a successful outcome.  While these problems can occur in virtually any case, they may be particularly serious in some cases, such as when the parties have mental health issues, suffer from chronic pain, and are involved in cases involving sexual harassment or sexual assault, divorce, or medical malpractice claims.

Organizational litigants also incur substantial intangible costs by participating in litigation.  It can harm internal dynamics within organizations, impose opportunity costs, and damage their reputations.  When organizations are parties in litigation, their board members, executives, managers, and other employees may fear that their future with the organization is in jeopardy.  Employees may worry that they may not be able to continue to work in the organization or get a good job with other employers.

Litigation can change the social atmosphere within organizations, eroding morale and destabilizing their culture in multiple ways.  For example, it can affect employee absenteeism, physical health, productivity, and decision-making.  Different employees and units in the organization may have conflicting perspectives and interests in the handling of the litigation, which can cause internal discord.  In reaction to intense pressure of a lawsuit, decision-makers can experience high levels of uncertainty, emotion, and pressure, causing them to misperceive crises and make decisions that are not in the organizations’ best interests.  Litigation can divert energy away from organizational goals and can impede innovation.  It can quickly damage companies’ brands and reputations, reducing their value.  Organizations may need to develop expensive and time-consuming strategies to rehabilitate their reputations and address other intangible damage.

In short, being a litigant can ruin your whole day.  Or year.  Or several years.  Indeed, harmful effects of litigation can persist long after it ends.

Lawyers can reduce clients’ intangible costs of litigation by monitoring clients for litigation stress and decision fatigue, promoting good communication and decision-making, discussing alternative processes for dispute resolution, and engaging other professionals as appropriate.  This is particularly helpful early in a case, but also can be helpful later in a case.

Applications in Legal Education

Given lawyers’ and mediators’ duties to help clients make informed decisions, it is quite appropriate for faculty to include this as part of their instruction.  In simulations of lawyer-client interviews and mediations, students typically are instructed to ask reality-testing questions.  Often, these questions involve second-guessing the likely results at trial – aka analyzing parties’ BATNAs (best alternatives to a negotiated agreement).  Sometimes, this may include discussion of possible legal expenses and perhaps some general discussion of intangible costs of litigation.  Often, however, consideration of intangible costs is given short shrift or completely ignored.

For several reasons, students would especially benefit by examining clients’ material risks of intangible costs in depth.  These costs can be extremely important to clients, who typically don’t have the knowledge and experience to anticipate them very well.  As repeat players, lawyer-advocates and mediators should be in position to help clients carefully assess them.  While this is true in theory, Michaela and Heather’s research suggests that many lawyers are reluctant to have these careful conversations with clients.  So it is appropriate to prepare law students to do this when they are in practice.

In some ways, these issues lend themselves better to simulations than questions about likely court results or legal expenses.  Typically, students in simulations don’t have enough information about the law or the facts to do a very good job of analyzing these factors.  In simulations, students are in a much better position to discuss clients’ interests and intangible costs.  If desired, faculty using tried-and-true simulations can add some brief material in clients’ instructions to elaborate these issues.

Faculty could encourage or assign students to explore some of the questions in the following section, adapting them as appropriate to the facts in the case.  These questions assume that the lawyers or mediators have already elicited critical facts about the case from the clients.  The questions do not address potential outcomes at trial or tangible costs, which also should be discussed with clients at some point.

The questions are particularly appropriate early in litigation or even before suit has been filed.  Some of the questions may be appropriate later in litigation and may be appropriate for mediators.

As Donna Shestowsky’s research suggests, lawyers generally should ask clients’ about their interests and concerns before giving their assessments because clients are especially influenced by their lawyers’ advice.

In general, it’s helpful to start with open-ended questions and ask follow-up questions as appropriate.  These questions should not be intended to put pressure on parties to lower expectations, which lawyers and mediators sometimes do.  The extent of any pressure typically is a function of the intent, context, tone, and sequence of the questions.  Ideally, professionals should ask these questions in a spirit of genuine curiosity and mutual education with their clients.

In simulations in negotiation and mediation courses, it is very helpful to require lawyer-student pairs to simulate an initial interview before the simulations of the negotiation or mediation process.  Many colleagues do this in multi-stage simulations.  I used to have students do simulations covering six stages, which I think were very valuable pedagogically.  Many colleagues aren’t ready to go that far but do include an initial lawyer-client interview stage.

Below are separate sets of questions for individual and organizational clients.  Some of the questions oriented to individuals may be appropriate for organizational clients.

Stone Soup assignments in which students interview lawyers or mediators might encourage or require students to ask about the subjects’ experiences or perspectives about some of the following issues.

Model Questions to Assess Individuals’ Interests and Material Risks of Intangible Litigation Costs

• Have you been involved in a lawsuit before?
• Do you know about lawsuits that friends or relatives have been involved in?
• What are your most important goals in this case?
• Most people have some fears or concerns about litigation, even people who have been through many lawsuits. What are some of your fears or concerns?
• How much do you think about this case? Does it distract you from your work or family life?
• How do you expect the litigation process to work in your case?
• How long do you expect this case will take before it is over?
• Of course, it would be great if the case could be resolved tomorrow. Obviously, it will take longer than that.  Do you have any particular concerns about the length of time that this will take?
• If this case goes on for, say, a year, do you think it would affect the way that people think about you?
• If this case goes on for, say, a year, do you think it would affect your relationships with people you care about?
• If this case goes on for, say, a year, would that prevent you from doing anything important to you?
• Litigation can be stressful at times. How do you generally respond when you are in stressful situations?
• It will be important for me to know if you are having a hard time. What is the best way for you to let me know this?
• Some people find it helpful to see a counselor to help them deal with stress. Do you see a counselor now?  Do you think it might be helpful to see a counselor to help deal with the stresses of this case?
• In the litigation process, each side is entitled to get information from the other side through a process called “discovery.” So they might ask you to provide copies of documents, answer written questions, or participate in a deposition.  In a deposition, the other lawyer asks you questions and a court reporter makes a record of exactly what you said.  I would be there to answer any questions you might have and to object to any questions that are inappropriate.  But you would have to answer the questions yourself.  How do you think you would feel during a deposition in this case?  Is there any information that you would not want to provide to the other side?
• There are several different ways that this case could be resolved. Of course, one possibility is that it would go to trial and a judge or jury would make a decision.  Although you see this a lot on tv, only a small proportion of cases actually go to trial.  Most cases are resolved through negotiation between lawyers in consultation with their clients.  Some parties use mediation, which is like negotiation except that there is a neutral mediator who helps both sides try to reach agreement.  The mediator doesn’t have the power to make a decision, so if the parties don’t agree, they would use another process to resolve the case.  Some parties use arbitration, which is like a court trial except the arbitrator is a private professional and the process is conducted privately.  The arbitrator’s decision is binding like a court’s decision.

This is a very brief description of some of the major ways to resolve lawsuits.  Do you have any questions about how they work?  Which of these processes sound like they might be the best for you?  Why?  Which of these processes would you want to avoid?  Why?

• As we discussed, litigation can take a long time and be stressful. That’s one reason why people often settle their cases instead of going to trial.  To avoid the delay and stress of trial, plaintiffs often settle for less than they think they would get at trial and defendants often pay more.  I want to understand what’s important to you in this case and how much it’s worth to you.

For example, if we could settle this case in three months instead of a year, how much would that be worth to you?  In other words, if you would [get / pay] $X in a year, how much would you be willing to [accept / pay] to resolve this in three months?

• Even in the best cases, there always is some risk in going to trial. How important is it to you to avoid that risk?  [For plaintiffs:]  In other words, if you think you might get $X if you win at trial but might also get nothing, how much would you accept to avoid the risk of losing?  [For defendants:]  In other words, if you think that you might not have to pay anything if you win at trial but might have to pay $X if you lose, how much would you pay to avoid the risk of losing?
• Some people really want to go to trial to present their case publicly and have the court make a decision, which they expect would be in their favor. Other people want to avoid the publicity of a trial and the risk of losing.  How would you feel about going to trial?
• If you don’t go to trial, do you think that you would regret it?

Model Questions to Assess Companies’ Interests and Material Risks of Intangible Litigation Costs

The following questions are designed for businesses and can be adapted for other types of organizations.

• In proceeding in litigation in this case, how much time and energy will be required of directors, executives, and other employees?
• How might this case affect your company’s ability to focus on your goals and opportunities?
• How might this case affect plans for future growth and innovation?
• Litigation is stressful and can interfere with good decision-making about how to handle the litigation. Sometimes people are overly optimistic and sometimes litigation leads to groupthink or internal conflict.  What, if any, problems like these would you anticipate?
• How might this case affect your employees’ morale and identification with the company?
• How do think that your company would be portrayed in the mainstream business and news media coverage of this case? How might your company be portrayed in social media?
• How might this case affect your company’s brand – how the public perceives your company and your products and services?
• How might this case affect your company’s reputation and relationship with stakeholders such as customers, suppliers, contractors, or lenders?
• Might there be reputational benefits to litigation in this case?
• What resources would be required to counteract any of the problems you just identified?
• In assessing the costs and benefits of this case to your company, what dollar amounts would you estimate as the cost of any problems you identified?
• [For plaintiffs:] How much would it be worth to your company to avoid the problems you just identified?  In other words, if you might get $X from the litigation, how much would you accept to avoid these problems?
• [For defendants:] In addition to payments for any liability in this case, how much more would it be worth to pay to avoid the problems you just identified?

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Many of us have spent decades critiquing the bar exam, and particularly the MBE’s multiple choice question content and format. In How to Build a Better Bar Exam, a short essay written with Professors Carol Chomsky and Eileen Kaufman, we discuss two law licensing exams that provide concrete examples of how to address some of those critiques.

Abstract

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By Sara Berman and Andrea[Andi] Curcio

Today’s students are more diverse, raised on the Internet and social media, used to skimming rather than reading closely, communicate via texts, tweets and gifs, and often learn from youtube videos. Many students grew up with helicopter parents who continue to make decisions for and intervene on behalf of their adult children. So, how do we reach these students and help them become professional, responsible, ethical, good lawyers?

Below, we provide three teaching tips for the new academic year. These are not global solutions. Instead, they are simple, easily implementable suggestions that may help address certain aspects of the significant, complex, and nuanced challenges the academy faces in effectively educating today’s students.

I. Belonging/community creates success

Claude Steele and Josh Aronson educated us about stereotype threat and its negative affects on student performance. As one group of researchers notes, “one consequence of negative stereotypes is to cause people to wonder if they will be fully included and valued in an academic environment.”

The literature suggests that feeling one does not belong triggers a series of stress reactions that may affect motivation and academic success, as well as physical health and psychological well being.

While schools need to develop structures that create a sense of community and belonging for all students, faculty can take some simple steps to create a sense of belonging in our classrooms. As researchers note, one of the first steps is to correctly pronounce all students’ names.

The Importance of Learning to Pronounce Names

Correctly pronouncing a person’s name indicates a respect for that person and provides a clear signal that the person “belongs” in your classroom. Consistently mispronouncing names sends the opposite message.

Some faculty members may avoid calling on students with names they find difficult to pronounce because they don’t want to embarrass themselves or the student. While students may fear being called on, they also expect it. Not calling on students sends a message that those students do not belong in your classroom or in law school.

Finally, students get to know one another when they hear each other called on by name. When you correctly pronounce a student’s name, his or her colleagues will do the same. This facilitates out-of-class socialization, including forming study groups.

Tip: Pass out index cards and ask each student to phonetically spell his or her name.

On the first day of class, distribute index cards and ask each student to phonetically spell his or her name. Use the cards to practice pronouncing students’ names in your office, and use them when calling on students until you feel comfortable pronouncing their names. Invite students to let you know if you mispronounce their names and make notes on the card to help you get it right next time.

Making an effort to correctly pronounce all students’ names sends a message to your students that you care about them, that you are willing to learn that which is initially unfamiliar to you, and that all students in your class belong there.

II. Empower students to find their own answers

Many students have grown up with “helicopter parents” – parents described by one set of researchers as being “high on warmth/support, high on control, and low on granting autonomy”. As Professor Palmer notes, this type of parenting potentially produces law students with limited critical thinking and problem solving skills. It also means that some students enter law school, expecting the same level of assistance from faculty as they got from their parents.

Many of today’s students need training on how to become expert, self-regulated learners who engage in independent problem solving. Numerous articles, including those by Professor Palmer and Professor Ritter suggest ways to help law students develop into professionals able to think critically and engage in independent problem solving. Again, here we focus on just one easily implementable tip.

Tip: When a student asks or emails you a question, try not to be a “helicopter professor.”

Respond Promptly but Not Immediately

Instead of immediately answering, take a few hours to see if the student resolves the question on his or her own. (How many times have you received a second email from a student two minutes after a first saying that the student found the answer so “never mind.”)

Encourage The Student To Find The Answer

If a student does not resolve the issue initially on his or her own, engage the student in the process of finding the answer him or herself. You might use a technique similar to the Socractic method we use to help students discover and understand doctrinal complexities, asking the student to consider where he or she might find the answer.

Manage expectations by letting the class know that, as part of a deliberate plan to help them develop into problem solving lawyers, you will not directly answer questions that you have already provided answers to in class resources. (E.g. you will not tell them something that is in the syllabus.) Also let them know that they learn best if they figure out the answer to complex questions on their own and that you will help them by asking questions that challenge them to do that.

Recognize that Students May Need Guidance

When questions require searching beyond sources you have already provided (the syllabus and assigned texts and postings), recognize that students may not have a clue how to go about what seems like common sense research to us. Thus, consider recommending a specific treatise or encouraging the student to consult the research librarians. Then, invite the student to check back after their search if they still have questions or need further clarity.

Don’t Give In To Temptation

It may be hard to resist answering a question – especially when that answer is at our fingertips. It is almost always quicker to answer the question than work with the student as he or she tries to find the answer. Also, some faculty want to avoid seeming “mean”. Whatever the reason, try to avoid the temptation to automatically answer student questions. In the long run, answering questions rather than empowering students to find their own answers hurts more than it helps.

III. Push students to develop a command of legal terminology

Immersion in the language of law school has always been confusing, even for top students 40 years ago. Scott Turow, writing in his 1977 novel, One L, about his first year at Harvard law school describes learning what he calls “Legal” as “a second language.” Turow notes, “Legal bore some relation to English,” but it twists and turns in ways that make it resemble a “very peculiar” “dialect,” one in which even familiar words may have different meanings.

Today’s students are likely to find terminology even more challenging than students in prior generations as many modern students enter law school without a strong civics foundations. As Professor Flanagan notes, “College graduates are unprepared to master “thinking like a lawyer” because they lack the fundamental thinking, reading, and writing skills that form the foundation for learning in law school.” Though dictionaries are with them at all times (on omnipresent phones), they seem

to consult them less frequently than those of us who lugged around hardback copies of Black’s Law Dictionary.

Tip: Require students to create and record short [1 to 2 minute] videos in which they explain and contextualize important legal terms in plain English

Using Familiar Tools to Connect Fluency in Legal Terminology to Law Practice

Students all have cellphones and most record videos of themselves and their friends. This exercise uses those tools to help students create fluency and deeper understanding of legal terminology.

This active learning, plain English translation exercise will help the terminology stick because it requires first understanding the terms and then being able to explain them in context. It also contributes to professional identity and community building as students see and hear themselves, and each other, using words in an actual (simulated) lawyering context.

Encourage students to be creative, working alone or in pairs, and write and act out a “mini script” that simulates a conversation explaining and using the term in context with a lay person they might encounter in practice such as a potential future client, an IT person at their future law firm, a witness, juror, or non lawyer expert. Creating “real life” scenarios helps students understand that this exercise is not “busy work” but instead is a building block in learning critical lawyering skills.

For those students who need additional reasons to master “legalese” generally as well as the specific terminology associated with your course, remind them that mastery not only empowers them to get more out of, and connect on a deeper level with, their studies, it also will likely help them get a better grade on your final and help prepare them to pass the bar exam.

Use the Videos as A Class Learning Experience

You may require everyone to turn in one video, or decide to give extra or participation credit for completing a set of 5-10 such videos. The videos can help both the students making them and their colleagues.

Alert students to the fact that you will post their videos on a private YouTube channel, or on TWEN, BlackBoard or whatever online system you use for other class materials. Your IT person can easily show you how to do this.

While you could provide feedback on each video, or a sample of videos, another option is to post the videos to a class video library with a discussion board. This shows students their work is being seen. It also allows them to constructively comment on each other’s videos, and it creates an “online class dictionary.”

You may want to ask students’ permission to use their videos in future classes so that you can show the best clips to future students. (Most will readily agree and will probably take the exercise even more seriously knowing you plan to use them in the future, and they will likely appreciate that you are taking their work seriously too.)

IV. Share Your Own Tips

Each of the tips discussed above are relatively easy to implement and have a potential high payoff in student engagement and learning, community building, and the creation of professional identity. We know you have other tips and hope you will share those with all of us.

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I have written a lot about teaching millennials in my scholarship and prior posts. Now I’m realizing it is time to start thinking about the next generation that will hit law school: Generation Z (“Gen Z”). Gen Z was born between 1998 and 2016, so its oldest members are close to 21 years old right now. So, they will be in law school soon.

What can we expect from them? Gen Z has only known a world of terrorism, recession, racial unrest, corporate scandals, under-employment and uncertainty. They’ve also only known a world of portable devices, multi-tasking, social media, and complex social issues. Similar to millennials, technology has shaped their daily lives and their world view. They do not know of a time before the internet, they like to stream content, often in small bits, like through YouTube, and consume most technology on their phones and computers. While some of us, for example, may seek “how to” information in a brochure or pamphlet, or even an online manual, Gen Z will often look for this same kind of information on YouTube. They like to learn by seeing, not just reading or listening. Gen Z uses social media differently than millennials, as they are more aware of the public nature of their posts. Gen Z also embraces diversity. This may be because they are the most racially diverse generation in America. Members of Gen Z are also more likely to say they have friends of a different sexual orientation. Although they are too young to be thinking of marriage themselves, their preference for inclusion means they strongly support marriage equality.  They enjoy group work and collaboration, so long as they see the greater goal to be achieved by the work.

What does all this mean for teaching?  The experience of learning is important to a Gen Z student. They do not want to sit through a long lecture, when they can watch  the same content through multiple engaging podcasts, or videos. So, for educators, the question is, how can we engage this learner without compromising the educational process?

• Allow technology use to take advantage of their drive for self-learning. Instead of taking devices away in the classroom, incorporate them into activities that promote and teach searching for and recognizing credible information.
• Build a connection with students beyond the walls of the classroom. A Gen Z learner is constantly connected to their social network. Consider using social apps for questions. For some learners, this may be the most comfortable way for them to ask questions.
• Lastly, try breaking content down into sizeable bites. Capture their attention with visuals. Gen Z prefers microlearning, though you’ll need to remind them of the bigger context. Keeping it simple, but sparking their curiosity can hook them into paying attention.

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The new academic year will begin soon (yikes!) and you may be finishing your syllabi for the fall semester.

If you want to help your students get a better understanding of the real world of practice in a wide range of courses, you can include a Stone Soup Project assignment in your courses by having students conduct interviews and/or observe court proceedings.

In some courses, you might assign students to interview lawyers or professionals that lawyers often work with.  In many courses, you might assign students to interview friends or relatives to get clients’ perspectives, which is too often missing in legal education.  Stone Soup has been used successfully in clinical and externship courses as students conduct focused interviews of supervisors or clients.

Last year, the project has engaged about 1000 students in 40 classes covering 12 subjects, taught by 32 faculty from 25 schools in 3 countries.  This is an understatement because some colleagues have essentially used Stone Soup assignments for years, well before the Stone Soup Project started, and they aren’t included in these figures.  Although faculty used Stone Soup mostly in traditional ADR courses, they also used it in other courses including in access to justice, evidence, externship, and trusts and estates courses.

This post provides links to resources that make it easy for you to use a Stone Soup assignment.

This post describes how faculty could use Stone Soup assignments in 1L courses and includes model assignments tailored to contracts, property, torts, civil procedure, and criminal law courses.  In contracts, property, and torts classes, students may be able to interview friends or relatives about their experiences.  In civ pro, students (perhaps in groups) can interview lawyers about strategy in handling pleading, discovery, motions, or other civ pro issues.  In criminal law, students can observe court proceedings in criminal law matters.  This post suggests that faculty require students to do interviews in these courses (or court observations in criminal law courses) but not require students to write papers or be graded on these assignments.  It explains why – perhaps counterintuitively – students could get a lot of benefit from doing these assignments very early in a course, before they learn the legal rules.

This post suggests ideas for faculty to use Stone Soup assignments in 2L and 3L courses, with specific suggestions for administrative law, bankruptcy, business organizations, commercial transactions, consumer protection, employment discrimination, evidence, family law, insurance, interviewing and counseling, labor law, landlord-tenant law, pretrial litigation, professional responsibility, real estate, tax, and trusts and estates courses.  You could use Stone Soup in other upper level courses as well.  As with 1L courses, you may want students to conduct interviews or observations early in the course and without requiring students to write papers.

This post collects faculty assessments of their Stone Soup experiences, including the assignments that faculty used and discussion of what worked well and what they might do differently in the future.

Here’s a table identifying characteristics of Stone Soup courses and providing links to faculty assessments of the courses.  For each course, the table shows the class size; whether the assignment was required, an option, or extra credit;  paper length (if any); due date; percentage of the grade allocated to the assignment (if any); and whether the assignment was discussed in class.

This post provides specific suggestions based on faculty assessments.  Here’s some key advice based on faculty’s experiences.

This post provides a complete set of documents to help you plan a Stone Soup assignment.  It includes: (1) guidance in developing these assignments, (2) a general model for an interview assignment, (3) guidance for students in conducting and summarizing interviews, (4) a model invitation for an interview, (5) a summary of professional ethics rules about confidentiality (indicating that professionals can discuss case information if they don’t include information that could reasonably identify the parties), (6) model paper format, (7) two sample grading rubrics, and (8) a consent form for students who want to share their papers publicly.

This post includes exemplary papers from negotiation (5), trusts and estates (3), and evidence (3) courses.  These papers can give you ideas about what you might want students to do in papers for your courses and you could suggest that students might use certain papers as models for the kind of analysis you want them to do.

If you would like to use a Stone Soup assignment in one or more of your courses next year,  please email me to let me know which course(s) and semester(s) so that we can include you in an updated roster of Stone Soup faculty.

If you have any questions or would like to discuss how you might use Stone Soup in your courses, feel free to email me.

I hope you enjoy the rest of the summer.

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This past June, I had the pleasure of participating in the Integrating Positive Psychology into Legal Education conference at Suffolk Law School, organized by Professor Lisle Baker.[1] Each of the twenty or so participants in the conference were tasked with preparing a two-page “Advisory” as well as a nine-minute presentation, designed to improve student well-being.  I chose to write and present on Overcoming Procrastination.

In her terrific MOOC, Learning How to Learn,[2] and companion book, A Mind for Numbers,[3] Barbara Oakley shares a powerful technique for overcoming procrastination: the Pomodoro Technique, invented by Francesco Cirillo in the 1980s.[4]  Cirillo used a kitchen timer, shaped like a tomato, thus its name.  The technique is simple:

• If you find yourself avoiding work you should be doing, commit to spending 25 minutes working as intensely as possible on that assignment or project.
• Use a kitchen timer or app on your phone to time yourself.
• Before you begin the work, however, think of some reward (Ice cream? Web surfing? A walk in the park?) you will give yourself when the 25 minutes are up.
• And even if at the end of the 25 minutes you want to keep going—stop and give yourself that reward!

Oakley explains that when human beings are faced with assignments, projects, tasks that they aren’t intrinsically motivated to complete (like your students’ Contracts reading, or your tenure article, perhaps?), the pain center in our brain lights up.[5]  So we put off the task because few of us enjoy pain.  Instead, we look to do something that gives us pleasure.  Once we actually sit down and focus on the dreaded task, however, the pain often disappears.  As one expert has noted, “The dread of doing a task uses up more time and energy than doing the task itself.”[6]

And even if the task remains unpleasant, almost any of us can suffer for twenty-five minutes.  And then there’s the dish of ice cream, a walk in the park, or ten to fifteen minutes of guilt-free web-surfing!  Just anticipating that reward helps ease our suffering.

Furthermore, brief study sessions followed by a break improve our students’ learning and fix what they are focused on into their long-term memory, as it allows time for whatever they are studying to “sink in,” so that when they return to task, refreshed, they find they understand the material better than when they left it. That’s because breaks from task allow our brains to process what we are learning, or work on solving a complex problem, while we are focused on something else.[7]

Oakley, who readily admits to being a first-class procrastinator, says that science doesn’t yet know exactly why 25-minute increments work so well, but it is widely found that they do. But she offers certain caveats, useful to those of us among us who procrastinate, as well as our students.  First, sometimes it may make more sense to use somewhat longer periods of time, depending on the task.  Oakley also admits that if she finds herself in a state of flow[8] she may keep going, deferring her reward.[9]  She posits that it takes about 20 minutes for the anticipatory pain to dissipate, so by the time you are in the last five minutes, you may well find yourself in that rewarding flow state.[10]

Oakley emphasizes that one needs to stay focused on the time, not on the task.  By doing so, one can proceed more deliberately, and thus produce better results.[11]

The Pomodoro technique is widely used, with variations in its application.  In an excellent seven-minute video, Thomas Frank offers good, practical suggestions, such as keeping a list of whatever distractions come into our mind while we are in our Pomodoro session.  This moves the distractions from our mind to paper, thus facilitating our return to task.[12]

In a very entertaining 14-minute TED talk, blogger Tim Urban, a self-proclaimed master procrastinator, argues that leaving things to the last minute generally isn’t a problem for him when he has a deadline, but it definitely is when there is none.  Thus, it can be a major problem in achieving one’s long-term or life goals.  Nor does Urban suggest that he does his best work when he leaves it to the last minute, which he demonstrates with great humor.  If you decide to try the Pomodoro technique yourself, I recommend checking out Urban’s talk as your reward after working your intensive 25 minutes![13]

[1] R. Lisle Baker, Suffolk Law School in Boston, https://www.suffolk.edu/law/faculty/Lisle_Baker.php.

[2] Barbara Oakley, Learning how to Learn, https://www.coursera.org/learn/learning-how-to-learn/lecture/Dci3o/a-procrastination-preview.

[3] Barbara Oakley, A Mind For Numbers (2014).  This book is useful for anyone interested in how the brain learns, retains, and retrieves information, whether you ever have the need to solve a complicated math problem.  It was one of two books on the science of learning our then new Dean, Harry Ballan, gifted to members of the faculty in December 2016; the other was Peter C. Brown, Make it Stick (2014).

[4] Francesco Cirillo, The Pomodoro Technique, Work Smarter, not Harder https://francescocirillo.com/pages/pomodoro-technique.

[5] Not a literal pain center, but we feel discomfort, and our primitive brain (our amygdala) seeks to avoid that discomfort.

[6] Oakley, supra note 3, at 85 (quoting Rita Emmett).

[7] To understand how and why that happens, and for many other excellent tips on improving learning, I heartily recommend Professor Oakley’s free Coursera MOOC and/or book.  See Oakley, Learning how to Learn, supra note 2; Oakley, A Mind for Numbers, supra note 3.  See also Pam Armstrong’s May 15, 2018 blog post on this site, Mixing It Up: Interweaving Lecture/Lesson and Retrieval Practice for Better Test Results.

[8] Barbara Oakley, Brain Training to Beat Procrastination with the World’s Easiest Learning Technique, The Big Think, https://www.youtube.com/watch?v=dTQDaUQ9MAU (3 ½ minutes).

[9] Researchers at MIT have determined that studying in blocks of one hour—50 minutes of study with a ten-minute break is optimal for effective focus and learning.  Effective Breaks, Study Tips, http://uaap.mit.edu/tutoring-support/study-tips/tooling-and-studying/tooling-and-studying-effective-breaks.

[10] Oakley, supra note 8.

[11] Here there might be some disagreement between Oakley and the technique’s founder, Francesco Cirillo.  Cirillo does focus on the end product, and his steps include calculating how many Pomodoros one will need to accomplish a task, presumably by a set deadline.  See Cirillo, supra note 4.

[12] Frank notes that procrastination operates differently for different people.  For him, it’s only a problem getting started.  The Pomodoro technique helps him get over that hump.  Thomas Frank, How to Stop Procrastinating: The Pomodoro Technique, https://www.youtube.com/watch?v=H0k0TQfZGSc.

[13] Tim Urban, Inside the Mind of a Master Procrastinator, https://www.youtube.com/watch?v=arj7oStGLkU.

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Small group work in large lecture courses can be very powerful. In my Professional Responsibility course this past semester, I had 74 students and many hailed from other countries. I wanted to get them talking to each other about the material, not just passively listening to me. Small group work so integral to law school clinical teaching that we rarely pause to break it down. But the use of small groups in traditional law school courses has been growing–see, e.g., this Harvard Law School blog describing the work of a fellow Penn State prof; and this piece on small group work in Professional Responsibility courses from Albany Law’s Center for Excellence in Teaching. In my Professional Responsibility course last semester, I started with two small exercises:

Problem-Based Group Exercise: Early in the term, I broke the 74 students into 10 random groups by doing an old-fashioned “count-off” around the room. Each group received a hard copy of a PowerPoint slide projected in the classroom, containing 2 multiple choice questions from my previous exams. Both questions were directly related to the material I had covered in the first half of class that day. I sent the groups to the 4 corners of our large room, and nearby empty classrooms and hallways, for 15 minutes of discussing the questions. Upon their return, I reviewed the questions and did straw polls for the correct answer(s). I explained the correct answers, and a lively dialogue ensued about why those were the “best” or “least bad” choices, which led into a test-taking discussion. What did I learn? Budget more time for the test-taking discussion, and reserve quiet space for each group in advance. Still, the student response was very positive overall.

Legal System/Self-Regulation Discussion: Near the end of the semester, I broke the students into 6 larger groups alphabetically by last name. I gave them hard copies of question prompts about ethical dilemmas and social justice posed by the day’s assigned reading. The prompt instructed them to prepare to report back to the entire class, in any way they chose. I gave them 20 minutes to discuss, and we took another 40 minutes for the report-back. Redundancy was a slight problem, but the variations in styles of reporting back were impressive. What did I learn? Giving two or three different prompts among the groups could reduce redundancy; and assigning the project in advance would give them time to produce more polished report-backs and enable absent students to participate.

The benefits of small group work in a law school classroom go beyond the obvious “active learning is more effective than passive learning.” Connecting with other humans to solve a problem affecting the larger group is a microcosm of the practice of law. Are you using small group work in your large courses? Do you assign point values to the group work? How far in advance do you announce it? Does it work better in first-year courses or upper-level courses for you? Drop me a comment about how you are finding strength in small numbers!

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Written by Albany Law School Professor of Law Melissa Breger 

My colleagues Professors Gina Calabrese and Theresa Hughes and I wrote a law review article almost 15 years ago that still holds true today. The South Carolina Law Review 2004 article was entitled Teaching Professionalism in Context:  Insights from Students, Clients, Adversaries and Judges.

In the article’s introduction, we acknowledge, “professionalism holds various meanings and the contextual nature of professionalism requires a definitional reshaping as circumstances and players change.”  In writing the piece, we note that one of our goals is ascertaining a myriad of ways to teach law students about the concept of professionalism.  At the time, we were all three clinical law professors drawing from our years of teaching in a clinical setting, as well as our earlier years of law practice in New York City.

As one of many examples, we assert that in the same way patients respond to a physician’s bedside manner, lawyers and law students should work on what we termed their “bench-side” manner.  We drew our inspiration from a 1997 study published in the Journal of the American Medical Association (JAMA) and written by Dr. Wendy Levinson et al. – which studied scores of doctors and their patients and tracked which doctors had never been sued for malpractice.  In addressing Levinson et al.’s work, we noted:  

“Physicians who had never been subject to malpractice litigation were found to have engaged in significantly longer visits with their patients. Patients and families medical treatment resulted in a negative outcome were more likely to sue their doctor if they felt the physician was not caring and compassionate. Although the purpose of this study was primarily to guide malpractice risk prevention, it also serves as a tool for educating the physician by providing an apparatus for producing greater patient satisfaction. The Levinson Study identified the specific and teachable communication behaviors associated with fewer malpractice claims, including facilitating comments, using emotional tone, interest in patient opinions, and utilizing humor, warmth, and friendliness. The physician’s bedside manner is analogous to what we label the lawyer’s benchside manner.”

While we caution against borrowing the medical analogy wholesale, we note that there are certainly parallels that could provide useful in a legal education setting.  Law students should be regularly assessing communication skills and client expectations when representing clients, particularly those clients who are in crisis.  

As we approach that time in the summer, when we start to think about fall and teaching aspiring lawyers for a new semester, we should keep in mind the thought that lawyering reaches beyond just knowing the law.

You can read the article here 

Breger, Melissa L. and Calabrese, Gina M. and Hughes, Theresa A., Teaching Professionalism in Context: Insights from Students, Clients, Adversaries and Judges. South Carolina Law Review, Vol. 55, pp. 303-347, January 2004. Available at SSRN: https://ssrn.com/abstract=566061

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