Best Practices for Legal Education

The faculty at the University of Massachusetts School of Law – Dartmouth started reviewing the Stuckey (and others) Best Practices for Legal Education a couple of years ago, but have become a bit more serious about it in recent months.  Last fall, Mary Lynch and Carrie Kaas presented and lead a short workshop at the School, not just introducing the principles of Best Practices (and the Carnegie Report), but encouraging us to continue our discussions after they left with a view to instilling Best Practices principles into our particular curriculum.  We obediently divided ourselves into sub-groups based on the areas of the curriculum in which we wanted to focus — the First Year, the Upper Level, or the Curriculum as a whole.  The group I chose met only once, and I think was similar to the others, given the distraction of the transformation of Southern New England into the new UMass Law School. An added distraction developed when we all realized that the curriculum with which we had been working was going to have to be revised to reflect our more public-spirited mission, among other factors.  So in the Spring we agreed that, when we next met about Best Practices, we would focus on the last chapter of the book, the one that offers a Model Curriculum.  Finally, we recently attempted this revitalization, and had a free-flowing conversation; the full-time faculty was joined by several other professors from among the legal skills, bar preparation, and academic success departments.

A suggestion made during the conversation seemed to resonate with several participants:  we should develop a list of skill-sets we think all law students should have gained by the time they complete law school.  In order to follow-up on that, since then, a small group (unfortunately, and a possible issue for a future blog posts, the group was exceedingly small and was not representative of the meeting’s participant-groups) of volunteers has met, enjoyed a likely brainstorming session, and developed a tentative list of the skill-sets. 

Where are we now?  We’ve distributed this list to the entire faculty, have asked for input — additions, deletions, etc. — and have invited them all to our meeting this month, during which we hope to match courses with the skill-sets we’ve come up with.

Stay tuned for reports on our progress, and on discussions of participation, buy-in, buy-out, and other controversial items.  Please email me at ischarf@umassd.edu if you’d like a copy of the product once it’s finalized.

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By: Paula Schaefer, Associate Professor, University of Tennessee College of Law

As I planned to teach pre-trial litigation for the first time in 2009, I wanted my case to include electronic-discovery (e-discovery). My research quickly revealed that the pre-packaged pre-trial litigation cases involved car accidents and simple contract disputes. No ESI (electronically stored information) was included, so it would be impossible to conduct e-discovery in these cases. Undeterred, I mused that I could make my own course materials from the contents of my overflowing email inbox.

From that idea, I developed a plan for a two-semester simulation. I offered a group of law students course credit (as an independent study) to email one another, following a loose script, to create a business dispute among their assigned characters. Their dispute would become the lawsuit in my pre-trial litigation class the following semester. In that course, the independent study students would play the clients and the witnesses, and the pre-trial litigation students would be their lawyers. 

The result was not just ESI, but also a realistic case that benefited both groups of students. The article about my experience is tentatively titled Legal Dispute Simulation Meets Pre-Trial Litigation Simulation: An Integrated Approach to Teaching E-Discovery Doctrine, Practice Skills, and Professionalism, available at http://ssrn.com/abstract=1676976.

Wait? You’re Giving Law Students Credit for Writing Email?

This is often the first question about the simulation. To receive course credit (one hour total credit for two semesters of work), students do much more than write email. They develop knowledge and skills they will use as lawyers. In the fall semester they negotiate agreements, draft contracts, and communicate (extensively) in writing in email, blogs, and more. In the spring semester, they participate in litigation as clients and witnesses where they have the opportunity to observe various lawyering styles and gain empathy for the clients and witnesses they will encounter in practice. Further, they learn something about the substantive law of the underlying dispute and gain knowledge about e-discovery.  

Doctrine, Skills, and Professionalism in Context

As they might in a doctrinal course (like civil procedure) addressing e-discovery, my pre-trial litigation students read and discuss e-discovery authorities on preservation, cooperation in e-discovery planning, document review and production, and discovery disputes. By adding the simulation to the mix, the pre-trial litigation students are given the opportunity to develop skills in all of these areas of e-discovery practice. In the course of a semester, they advise their clients on preservation issues, plan for e-discovery with their opponents in a 26(f) conference, and use technology to review thousands of electronic documents. They go on to produce responsive documents in an electronic format and prepare privilege logs. And when the production is complete, they negotiate with their opponents to work out lingering discovery disputes.  

At each step of the litigation, they encounter various professionalism challenges. With parties to the litigation walking the halls of the law school, they gain an understanding of their professional conduct obligation to not talk to a represented party. When they experience the temptation to withhold bad documents from their opponents, we discuss the consequences of such misconduct. They face and address the challenge of cooperation (with opposing counsel) that is so essential to e-discovery practice. It is one thing to talk about these issues, but it is another to experience them in the context of a realistic case.  

Can this Work Outside of E-Discovery?

Though I developed my simulation with e-discovery in mind, it could work in many doctrinal and skills classes. The simulation creates a complex business dispute with numerous claims, making it the perfect go-to example in a business torts class. The evidentiary issues generated could be the subject of an evidence class. The simulation characters could also make an appearance in skills classes like negotiation, contract drafting, trial practice, and transactional lawyering (like the University of Tennessee’s capstone Representing Enterprises). I have plans to invite another professor’s mediation students to my pre-trial litigation class next semester to see if they can mediate a resolution to the case prior to trial.  

My loose script for simulation characters (a link is provided in my article on SSRN) could be used by law students anywhere to create a new legal dispute. Or a professor could easily create a new script involving issues he or she is interested in exploring in a doctrinal or skills class. From my experience, I believe such simulations are worth the effort. These simulations can transform an ordinary class into something more realistic. And with that realism comes an opportunity for law students to make the transition to lawyers.

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“We are all programmed to think in story structure. So it makes sense that many great professors infuse their teaching with stories and that we emphasize story structure for centering the representation on the client’s needs and goals. That’s the theory behind the Applied Legal Storytelling conferences. The third conference will take place this summer, July 8-10 at Sturm College of Law, University of Denver. The conference is sponsored by CLEA and the Legal Writing Institute (LWI). The Call for Proposals can be found on the LWI website, www.lwionline.org.  The website also includes a bibliography from the first two conferences. The deadline to submit a proposal is December 7, 2010. “

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By: Jason Huber, Assistant Professor of Law Charlotte School of Law jhuber@charlottelaw.edu

We are all familiar with how practical and pedagogical issues limit the ability of law schools to provide students with traditional clinical opportunities.  In order to expand experiential offerings to students outside of the clinic setting, Charlotte School of Law utilizes capstone classes.   While capstone classes come in variety of forms, we use a course model which blends doctrinal study with practical application.  Recently, our students achieved substantial milestones through one of CSL’s capstone offerings.

In the fall of 2009, I was charged with developing a civil rights clinic.  Working with Professor Adcock, CSL’s Director of Experiential Learning, we saw an opportunity to kill two experiential learning birds with one stone.  Rather than a faculty member designing and implementing a clinic program, we created a Civil Rights Capstone course where students were responsible for researching and developing the civil rights clinic themselves.  The class required students to assume a mock attorney-client relationship with CSL.  They were assigned the task of assisting CSL in creating a civil rights clinic which would provide both a rigorous educational experience and much needed service to the community.  Throughout the class, the students studied the history of the clinical legal education movement, substantive civil rights law, the availability (or lack thereof) of potential remedies, different pedagogical clinical theories and also surveyed many clinicians concerning the nuts and bolts of their programs. 

While doing so, the students discovered a significant hindrance to their client’s goal–the United States District Court for Western District of North Carolina did not have a student practice rule.  After researching various state and federal student practice rules, the students drafted and submitted a proposed rule to the district court.  Chief Judge Robert Conrad and the Board of Judges for the Western District directed Magistrate Judge David Cayer and the Clerk of Court Frank Johns to work with us on creating a rule.  Based on the student drafted rule, after some discussion and editing, the Western District adopted its first ever student practice rule on June 24, 2010. 

We have already seen the fruits of our labor.  On July 1, 2010, CSL student Candace Davis became the Western District’s first certified student practitioner where, under the supervision of Claire Rauscher, Executive Director of the Federal Defenders of Western North Carolina, she represented clients in multiple arraignments, bond and probable cause hearings.

In addition to their successful rule making, the capstone students’ end of the semester presentation to the CSL administration concerning their clinic proposal was very well received and served as the blueprint for our existing Civil Rights Clinic. John Arco, Kevin Beck, Tanea Hines, Jeffrey Ellingsworth, Kevin Vidunas, Hector Henry and Brian Chapman were the students responsible for these successes.

While capstone classes are no substitute for actual clinical offerings, they can provide students with “real world” learning opportunities that build substantive knowledge and problem-solving skills while serving others.   As such, the capstone experience is an important arrow in our experiential learning quiver.

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Even as something like 200 clinical educators were preparing to descend on New York last weekend to engage in an exchange and discussion of scholarship (at New York Law School for the 25^th Anniversary of the Clinical Theory Workshop and at NYU for the third Clinical Law Review Workshop), an article in the South Carolina Law Review raising some questions about (among other things) the value of legal scholarship was making the rounds on listservs and blogs. This confluence of events leads me to want to reflect on AntiDisEstablishmentScholarshipism.

I can’t fully explain to you what AntiDisEstablishmentScholarshipism means, but I will try to deconstruct  it for you here, with minimal footnotes. Let’s start simply with one of its roots, AntiScholarship. I get this.  I think I am a good person to talk about AntiScholarshipism because I was once a true believer and because I still very much appreciate why not everyone wants to spend time writing and reading law review articles. I take pride in the fact that my first publication in a law review was a short story, unadorned by footnotes.  And as I confessed for the first time in New York this past weekend, my first “substantial” article was written on a dare to myself to produce something with 400 footnotes.  Not surprisingly, I suppose, I was taken half-seriously.

But the fact is, I did move over to AntiDisScholarshipism a long time ago.  What I mean by this is that I came to understand the University model of teaching and to value research and writing.  I came to see value in writing to communicate what we know, what we are learning to know.  I believe that thinking theory, thinking abstractly, can make us better teachers, better lawyers, even better people.   I believe this work hones our skills, improves our brains, and maybe staves off Alzheimer’s.  Maybe more importantly, as Claudia Angelos reminded a roomful of clinical folks at lunch a few days ago, we can all point to publications that have affected us and given us something – that have transformed our teaching, helped us understand the systems we operate in, named our struggles, articulated the reasons for what we intuitively believe. So I don’t dis scholarship so much anymore, which I think makes me an AntiDisScholarshipist.

Still, I remain skeptical about the scholarship enterprise as a whole.  We all know the reasons why.  The tenure system, rooted in publications for student-edited journals, contributes to the reproduction of hierarchy (fn: Duncan Kennedy) that many of us generally abhor. Law review articles too often are conversations with ourselves, exclusionary, formulaic and ungrounded in reality (fn Richard Delgado & Jean Stefancic, others).  Therefore, I could easily revert to my AntiScholarshipism past, if I weren’t hell-bent on problem solving; the problem is, I want to grab the benefits I see in Scholarshipism, without falling prey to its practices of inequality and irrelevance. And so I seek a way to claim scholarship by redefining it.

Here’s where I begin: About 20 years ago, The Carnegie Foundation for the Advancement of Teaching published a report: Scholarship Reconsidered: Priorities of the Professoriate by Ernest L. Boyer. (fn needed).  Boyer proposed a broader definition for scholarship than was traditionally assigned to the term in the university system, and laid out a four-dimensional paradigm that includes the following types of scholarship:

1. Discovery (the norm for legal scholarship);
2. Integration  (often cross-disciplinary; contextualizes specialized knowledge; by illuminating connections, creates an extension of practice);
3. Application (a theory/practice bridge; translational, as between professional community and the academy; demonstrates consequences in realistic, practical terms); and
4. Teaching (focus on creation of new knowledge in the presence of learners).

At about the same time, then-Harvard president Derek Bok published an appraisal of the academy, Universities and the Future of America (another fn needed). Both works received a lot of attention in higher education circles. Subsequently, with the support of Carnegie Foundation president (and pedagogy expert) Lee Shulman, a second report was written and published by the Carnegie Foundation.  The second publication, Scholarship Assessed, was developed from a survey of journal editors, scholarly press publishers and funding agencies. The authors came to the conclusion that scholarship across all disciplines seeks conformance with six basic standards: clear goals; adequate preparation; appropriate methods; significant results; effective communication; and reflective critique. Scholarship Reconsidered basically began with the premise that academic scholarship demands excellence in the disciplined and reflective discovery, transmission, and application of knowledge.  Scholarship Assessed provided the scaffolding for evaluating scholarship, regardless of its type.

Clinical scholars are more likely to engage in Types 2, 3 and 4 of the scholarship paradigm set out by Boyer. Among the signature characteristics of clinical scholarship I see are:

• Broadened context, including a focus on trial (as opposed to appellate) courts, the law office, client lives, and community settings;
• Incorporation of interdisciplinary work, applicable to law practice, including, for example, linguistics, anthropology, psychology, and critical theory;
• Dialogic dynamics, or what Clark Cunningham describes as “the subject matter of our scholarship talk[ing] back to us.”  (fn to Clark). Clark’s point, as I understand it, is that as clinical scholars write and reflect on clients, students, courts, systems, and lawyers, they are simultaneously engaged in the practice of law.  This creates a unique structure for both giving voice and learning in action.

I am well aware of the political realities that make it difficult for clinicians to get tenure or even keep their jobs without bowing to the pressures of scholarship as usual; and I admire the pragmatists who, preferring to review student briefs or perfect policy arguments for a legislative agenda, nevertheless buckle down and get those 400-footnoted, doctrinal pieces out on Express-O.  But if we are talking Best Practices here (and we are), I wonder if we might start articulating our own standards of excellence. What would they look like? I can imagine a world in which scholarship is valued because it, say, does no harm; is of use to practitioners; challenges assumptions; broadens horizons (by virtue of being descriptive); transcends the lawyer/client dichotomy; or is simply beautiful. In a world like that, I just might be persuaded to subscribe to a belief in Establishment scholarship, and become an official AntiDisEstablishmentScholarshipist.

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It is well-documented that many students suffer psychological injury caused by some traditional practices of legal educators in the United States. When I was working on the Best Practices book, I learned that Gerry Hess and others believed that the heavy workload on students was one of the stress factors that contributed to harm. This struck a chord with me, because I temporarily lost my ability to read during the second semester of law school due to eye stress. In my second year, I actually had one professor who typically assigned 50 pages of casebook material per class hour. I hated his course because of that.
Until I recognized that excessive reading assignments might be harming my students, I assigned up to 30 pages of reading per class hour. After considering the negative impacts of too much reading, I changed my policy and assigned no more than 20 pages of reading per class hour and sometimes much less than that. Accomplishing this goal forced me to make some painful decisions about what to leave out, but I did it.
The result? My students appreciated what I did, and they were better prepared for class. I do not think the quality of our class discussions diminished at all, which surprised me.

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Have you noticed an improvement in student evaluations of your teaching after implementing recommendations from the Best Practices book? I did.
I generally received high marks from students, but they became even higher once I began embracing more principles of best practices. I think what helped more than anything was that I began to truly embrace the concept of student-centered teaching. For example, I began making time to learn things about my students’ lives outside of the law building. This had two impacts. First, students viewed me as being more concerned about them as people, not just as students. Second, I became more tolerant of some student behaviors, including the student who sometimes fell asleep during my 9 AM Monday class. I knew she was a divorced mother of a high school student who was working her way through law school as a nurse. She worked the Sunday night shift. When she fell asleep, the other students and I let her rest.

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In May, I participated in the Bricks, Bytes and Continuous Renovation conference in Philadelphia, where law school classroom design was discussed (as well as law school building design in general).  The article below, which originally appeared in the Chronicle of Higher Education, raises some interesting thoughts along those lines.  I doubt there are many law school deans ready to embrace the idea proposed in the article.  But as law schools build for the future (literally as well as figuratively) we need to give more thought to the spatial implications of implementing best teaching practices.  I imagine (hope?) most schools do seek the input of clinicians when planning a new facility.  But what about spaces other than the clinic itself?  Are schools locking themselves into less-than-optimal classroom designs, by just trying to build a spiffier, better-lit version of the traditional classroom?  Or are law schools thinking seriously about the kinds of teaching and other spaces needed in the 21^st century?  To give one example – a common objection to doing break-out groups is that they can’t work in large classes.  And the traditional large, tiered classroom is perceived to be a further impediment.  Those of us who have tried it know that neither the number of students nor the size or layout off the classroom prevents the use of this technique.  But wouldn’t it be even better if best practices were taken into account during the design process for any new or renovated law school building?  Another example would be whether/how law schools are designing spaces to encourage collaboration.  I’m sure other professors know of many other examples; those teachers need to be heard when new or renovated law school space is being designed. 

Wall-E: Reconfigurable Walls at Stanford d.school Make Each Class the Perfect Size
BY Linda Tischler
Wed Apr 28, 2010

Chronicle of Higher Education

Can classroom design influence the quality of learning? Anybody who’s sat in the back row of a big lecture hall with empty seats up front can tell you it’s a perfect setup for disengagement–or for updating your Facebook page.

It’s a problem central to space design at the new Stanford d.school building, and one that planners solved with a massively reconfigurable wall system that lets instructors create the perfectly sized space for each class.

The school’s second floor is, essentially, one large room, framed by a truss system that lets planners design a series of sliders, attached with a gizmo they call a “taco” to a beam-mounted C-channel. That allows teams to create instant studios, of the exact dimensions appropriate to the day’s activities. Need a cozy nook? Done! A wide-open expanse of space? Not a problem.

Additional support is provided by spring-loaded posts, which let classes put wall studs wherever they want.

“The system allows a modal shift between intimate and open,” says Scott Witthoff, co-director with Scott Doorley of the school’s Environments Collaborative, which designed the arrangement along with Dave Shipmen of Steelcase.

Check out the taco itself: it’s subtly branded with an abstracted “d” cutout as an extra, usable hole. That’s also part of the d.school ethos, to expose how things are put together. That ranges from a support wall that exposes the masonry, brick, and stucco of the building’s previous lives to the edges on the tables that show their composition.

The dschool’s DNA is, after all, engineering, so the feeling that it’s all like something out of David Macauley’s “The Way Things Work” is no accident.

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An article was written in the New York Times in correlation with students returning to school. The article is about the extremely limited understanding of how we learn and the old adages about studying that have been proven false. For example, students will hear advice from their teachers such as, “[c]lear a quiet work space” and study in one area. Studies now show that sitting in a single place everyday studying is actually less effective than varying the study location.

If the advice we are giving to students about studying away from school is wrong, we have to hope that the way we teach in class is correct. So we must consider the methods of teaching. What about all of those visual learners and auditory learners? What is to be done about teaching to the many ways students learn? Researchers are terrified that you even asked. “‘The contrast between the enormous popularity of the learning-styles approach within education and the lack of credible evidence for its utility is, in our opinion, striking and disturbing,’ the researchers concluded.” And by the way, it does not matter whether you jump through hoops in front of the class. Students will not learn any better.

However, not everything your teachers told you was wrong. Cramming before a test is still not a proper way to learn. Just as we always suspected, it might get a student through a test, but you will not remember a thing of it later. Actually, it is worse than not remembering. “‘[W]hen they move to a more advanced class,’ said Henry L. Roediger III, a psychologist at Washington University in St. Louis. ‘It’s like they’ve never seen [the material] before.’” Overall recall is far better when studying is done in short spurts over a long period of time.

Last, standardized testing, is not such a bad thing afterall. In fact it is a very effective tool, and the harder the test, the more likely students will be to remember the material. “The more mental sweat it takes to dig it out, the more securely it will be subsequently anchored.”

So as students head back to resume their trek along the road of pedogogy, just remember that our ability to recall of all of those axioms about learning proves only that we learned them over a long period time and must have been tested on a really hard exam.

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Many, if not most, law schools conduct orientation for incoming first year students.  Faculty may be significantly involved.  Sometimes we might ask ourselves, in the hurry of early August, “Why are we doing this?!”  And, “How come we didn’t schedule time last April to talk about changing orientation?”  When faculties examine their orientation programs, we may start by asking what the purposes of orientation are.  Welcoming students to the institution, or into the legal profession?  Infusing them with a sense of higher purpose?  Instilling professionalism?  Or even just laying the logistical groundwork for the semester?

The risks of formalized orientation are obvious – overwhelming students with too much information, boring them to the point of disengagement, frustrating them with further delay before the long-awaited start to their law school studies.   Even inspirational speakers (judges, famous graduates) or motivational ceremonies (e.g., pinning) may need to be retooled, when these traditions start to feel stale.

What really needs to be accomplished during orientation?  Should faculty play a role, and if so, what should it be?  Or is orientation best left to the administration?

Recently, to enable my own participation in first-year orientation, my elementary-age daughter was sent off to a week-long, overnight language camp.  From the moment she entered the grounds, the camp counselors spoke to her in Swedish – the target language.  Having no prior experience with the language, my 10-year-old felt the full impact of immersion-style language learning.  Other than a brief conversation inside the cabin about rules, communications from and among staff – her teachers – took place in a language that was entirely new to her.

Should orientation of law students be designed to smooth the transition into law school, with the idea that comfortable students will be better positioned to learn?  Or is it possibly more effective to immerse the students in our professional language and culture – as legal scholars, teachers, and lawyers – from the very beginning?  Would recognizing and employing the power of “disorientation” actually better serve this purpose?

Some schools have revamped their initiation of new students in innovative ways (last I heard, Washburn has gone so far as to ban the use of the “O” word!).  What about schools that haven’t yet reached such a turning point – are there key roles that faculty can and should play in being a part of what happens during the first few days new students arrive on campus?

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The Wall Street Journal Law Blog recently posted on the change to merit pay raises at law firms, a move away from simple billable hours based raises.

“It’s becoming increasingly clear that lockstep pay, in which associate salaries automatically rise each year, is becoming a thing of the past at many firms.

Today there is news out of Beantown that some leading corporate firms are telling their young lawyers that their billable output and overall performance are increasingly relevant come pay time.

Nixon Peabody and WilmerHale have abandoned lockstep pay, and Choate Hall and Edwards Angell are considering similar moves.”

The question has to be asked: what does this mean for law schools as they try to prepare students for a world where skills will be required even for young attorneys? 

If the firms look for skill in order to prove merit then students will increasingly need to stay one step ahead of the competition. The move could place more pressure on law schools to produce students with enough skills to earn these raises, and students may choose law schools that will provide proper training.

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An interesting article was sent to me from Professor Pam Armstrong, a lawyering professor at Albany Law School.  It cites findings that grades in law school are a more accurate predictor of career success than the eliteness of the school. The full text of the article is posted at the ABA Journal’s website. The research was also picked up by the Wall Street Journal’s Law Blog.

Professors Richard Sander (University of California, Los Angeles), and Jane Yakowitz (visiting professor at Brooklyn Law School) concluded that the old addage telling students to go to the best law school is not necessarily accurate. “Law school grades are the important predictor of a lawyer’s career success—in fact they are ‘decisively more important’ than the eliteness of the school attended.”

They point out that the research should affect law school “trade-ups”. “Since the dominant conventional wisdom says that law school prestige is all‐important, and since students who ‘trade‐up’ in school prestige generally take a hit to their school performance, we think prospective students are getting the wrong message.”

The study consisted of analyzing data from 40 public law schools, and the professors found that students still tend to choose the most elite school. But the American Bar Foundation’s After the JD study of lawyers who entered the bar in 2000, indicated “that the salary boost for achieving high grades more than makes up for the salary depreciation associated with attending a lower‐ranked school. The study also found that lawyers who left law school with the lowest grades felt the least secure about their jobs.”

It appears that the “best law school” theory was accurate at one time, but has since lost its importance. “Two other studies of lawyers practicing in Chicago in the mid-1970s and mid-1990s found that law school eliteness was associated with higher incomes in the 1970s, but that had changed in the 1990s, when class rank more accurately predicted earning power.”

Furthermore, “while law students tend to come from upper-middle and upper class backgrounds, social status now appears to not have a role in shaping grads’ careers.”

As for why grades are so important “Sander told the Wall Street Journal he doesn’t know why grades are so important, but he was willing to speculate. ‘It could have to do with psychological factors, a level of confidence you gain from doing well that serves you well not only in school but afterward.'”

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