Is Mandatory P/F An Opportunity to More Accurately Assess Competency to Practice Law and For Bar Admission?

Posted on March 29, 2020 by Mary A. Lynch

As our knowledge of COVID19 and its impact becomes more extensive each day, each workplace, profession and community is facing some common and some unique questions. Those working on the front lines in hospitals – such as several of  my relatives in NYC and NJ – are experiencing the kind of trauma, shortages, emotional overload and duress that is usually experienced in wartime. It can only be weakly imagined by the rest of us.   For those of us not experiencing  people suffering and dying in front of us on a daily basis, some less horrific choices are before us:  How do we modify “business as usual”?  How do we evolve and adapt with each days new tsunmai of information and data?  How do we support our best selves and our core values in this historically momentous time on our shared planet? 

Before turning to the topic of grading and assessment, I want to pause to give a shout-out to my home institution. Our multi-talented leader Dean Alicia Ouellette has been holding  community town halls every day since Friday March 20th. (BTW Dean Ouellette  just shared on Facebook  that she had been suffering from “presumptive COVID 19” fever and symptoms but thankfully is now symptom free). During our daily town halls, my faculty colleagues and I have expressed our wonder and gratitude for the  character, resilience and grit of our law students who are balancing so much right now, and facing so many financial, tech-related, health and extended family burdens. Our students’ engaged and forgiving response to “tech-curious but not necessarily tech-savvy” teachers and their community-minded empathy for those hardest hit keeps the faculty motivated and inspired.

One of the COVID19 decisions for legal educators involves whether and how we assess and sort — which in reductive  vernacular means “grade and rank.”  Maintaining appropriate expectations, options, rigor and excellence in law teaching  may assume primacy for those  who have been long focused on ensuring that law students receive real value for the time, talent and treasure they expend on law school.   For others focused on fairness in law placement,  transparent employer signals about how they will view Spring 2020 legal education may be most influential.  For those concerned about our profession’s  reputation for lack of wellness and lack of diversity, those concerns are elevated at this moment when those least advantaged are most hard pressed.  For those struggling with equity, there are so many permutations and consequences of COVID19 – whichever choice a school makes – that voting faculty could become as immobilized as Chidi Anagonye on THE GOOD PLACE. (BTW Good idea for escape television for those who love philosophy or Kristen Bell).

On the other hand, might this be a moment to look for the opportunities for reform and improvement that only come when the status quo is disturbed and rocked to its foundations as is happening now.  Here is what I am thinking:

Might Mandatory P/F force educators and employers to admit that traditional law school grading and ranking is a misleading and reductive proxy for measuring potential success as a lawyer?

Could it force employers to use other ways to learn about the WHOLE STUDENT with all her strengths, gaps, and individual aptitudes including the situation she faced during law school?

Might it accelerate a move to a more qualitative than quantitative assessment of each law student? Or, at least might it prioritize learning which enables a school to assemble a portfolio of student recommendations ( demonstration of knowledge, skills, aptitudes, and professionalism)?

Foundational resources include of course Educating Lawyers, Best Practices in Legal Education, and Building on Best Practices: Transforming Legal Education in a Changing World, which also provide helpful wisdom points. In addition, looking back through the dozen or so years of this blog’s existence, there are lessons from which we can pull core knowledge and core values to assist in our continued educational deliberations at this turbulent time. 

CORE KNOWLEDGE AND REFLECTIONS

Valuing Legal Education over Sorting – For example, focus on the difference between assessment and grading.  Educating Tomorrow’s Lawyers conferences have brought employers, law schools, and legal education stakeholders together to tackle the disconnect between our current sorting systems (primarily used to help elite employers looking for a simple and reductive initial screening system) and the needs of society and most employers for competent new attorneys and the needs of students and the profession for fairness.

Focus instead on formative and evaluative assessment of law students and graduates

Focus on growth mindset, on reflection and learning from mistakes or experience

Recognize the limits and problems with GPA’s or LSAT scores to create a more competent profession with more able and diverse learners.

Acknowledge that the media and the academy is still stuck in a mindset that focuses on sorting methods rather than on better preparation and assessment of law students to serve clients and society.

Class rank does not predict who will become a competent, healthy and ethical lawyer

Effective Education includes

CORE LEARNING VALUES

Growth Mindset 

Inclusion and Diversity

Student-centered Learning  and the Introduction to the original Best Practices – “One of our basic tenets is that law schools should become more student-centered”

Wellness  

Collaboration and Innovation

Integrity 

Character 

Justice

Situational Excellence

There is a common theme here: P/F with alternative assessment information and measures should be seen not as temporary emergency expedients to “sort and rank”, but rather as long overdue components of a better educational program and more nuanced assessment paradigm.

I would love to hear your thoughts in the comments below.  I wish all our readers and citizens of our little blue planet moments of peace, love, safety, and compassion. May someone be kind to you today and let’s pay it forward.

 

 

 

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Preparing 1Ls for Persuasive Communication by Integrating Procedural Rules and Substantive Law

Posted on February 17, 2020 by Jessica N. Haller

By Louis Jim, Assistant Professor of Law, Albany Law School

My last post discussed my experience of using “classroom clickers” in the first week of law school to build a foundation to understand the hierarchy of authority, a foundation that is critical to success in all classes. In this follow-up, I discuss my experience with using “classroom clickers” to improve student understanding of the Federal Rules of Civil Procedure before students write their motion and appellate briefs.

Many law schools require 1Ls to complete a legal analysis, communication, and research course. Although models may vary, those courses typically span two semesters: the first semester focuses on “objective/predictive writing” and the second semester focuses on “persuasive writing.” At Albany Law School, the course is called “Introduction to Lawyering,” which is a six-credit, two semester course (“Lawyering I” in the fall, “Lawyering II” in the spring). I started teaching the course in August 2018.

In Lawyering II, I require the class to write a summary judgment motion and an appellate brief; the students then complete an appellate oral argument. For the summary judgment, every student represents defendants who move (and are inevitably granted) summary judgment. Every student then represents the plaintiffs-appellants for the appellate brief. Students choose their side for the appellate oral argument.[1] By forcing students to switch sides, students must first write their statement of facts and argument from the perspective of the defendant, and then re-write their statement of facts and argument from the perspective of the plaintiff. This model fosters a better understanding of the strengths and weaknesses of both parties. But more importantly, because students must write from diametric perspectives, this model forces students to think about how organization and word choice affect the persuasiveness of their motion and brief.

The semester-long hypothetical is set in fictional State of New Scotland, and the venue of the civil action is the fictional U.S. District Court for the District of New Scotland,[2] which is in the fictional U.S. Court of Appeals for the Fourteenth Circuit. The U.S. Supreme Court hears appeals from the Fourteenth Circuit. The hypothetical involves a real circuit split on a constitutional or statutory issue and asks students to persuade the fictional district court and fictional circuit to take a position. As an “open universe” problem, students perform independent research, though I assign short research assignments to get them started. Students must recall their knowledge of “binding” and “persuasive” authority and analogize or distinguish the hypothetical problem’s facts to the facts of real cases on either side of the split.

When I first taught “Lawyering II” in Spring 2019, I presumed that every student fully understood how summary judgment actually worked because they took “Federal Civil Procedure” in the fall. But after reading the motions, I realized that I had failed to ensure that each student had a solid foundation to understand how summary judgment actually worked in practice.

Not wanting to repeat my mistake this spring, I created an in-class exercise to assess the class’s understanding of motions, appeals, and Federal Rules of Civil Procedure 12 and 56. A copy of the exercise that includes my comments on the objective of each question is available here:

exercise-on-rules-12-and-56-rev.-2.14.20Download

The exercise involves two separate federal housing discrimination claims against “YBR Apartments, Inc.” The plaintiff in the first claim is “Oscar Zoroaster,” and the plaintiff in the second claim is “Dorothy Gale.” Both plaintiffs claim that they have the fictional “Ruby Slippers Syndrome.” Each question in the exercise builds the prior question, and each question assesses a different aspect of Rule 12 or Rule 56. By using a “classroom clicker,” each student participates without fear of being singled out for being incorrect.

I start with Rule 12 because it serves as a good opportunity to focus the students’ attention to the elements of the claim (i.e. “Can plaintiff state a prima facie case for federal housing discrimination?”). The discussion on the questions about Rule 12 also gave me an opportunity to stress that plaintiff’s counsel should draft complaints precisely and accurately as possible in light of the information available to counsel at that time.

The exercise transitions then to assessing the students’ understanding of Rule 56. For the Rule 56 portion, I wrote hypotheticals that would assess their understanding of (1) what it means for a fact to be “material,” (2) what a “dispute as to [a] material fact” and “judgment as a matter of law” actually mean, and (3) how a district court uses persuasive authority when there is no binding authority. The posture of the last two questions in the exercise are designed to mirror the posture of summary judgment motion and appellate brief for the semester-long hypothetical, i.e. convince a district court and a circuit court to adopt the position of another circuit absent any binding authority.

Not only was the exercise useful in assessing (or reviewing) their understanding of Rules 12 and 56, but the exercise also challenged students to begin forming and making persuasive arguments to support their responses. By practicing how to develop their persuasive communication skills early in the semester, students engaged with the primary learning outcome for Lawyering II—persuasive communication. Students could then apply the exercise’s lessons to the semester-long hypothetical. Finally, students saw how substantive and procedural law is actually integrated and used in practice, an opportunity that may not always arise in other courses.[3]

[1] Students sign up on a first-come, first-serve basis.

[2] Albany Law School is located at 80 New Scotland Avenue in Albany, New York.

[3] My students complete a biweekly reflection in which they must tell me two things they learned in Lawyering that week and two things they want to learn in Lawyering. The students then have the option of writing any comments or asking any questions even if the questions and comments are unrelated to Lawyering. One student commented that she wished she saw more of how doctrinal law is actually used in practice.

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Why Law Schools Need to Teach Critical Thinking

Posted on February 11, 2020 by Jessica N. Haller

by Scott Fruehwald

Law schools have never systematically taught critical thinking.  I do not mean that law schools do not help develop critical thinking.  However, this is not done on a systematic basis.  There is no method or approach for teaching critical thinking in law schools.

For example, taking a class in negotiation will help students develop critical thinking, but not systematically.  This is like learning grammar just by speaking a language.  While this gets the student some of the way, to be systematically trained in a language, a student must explicitly study grammar.  Similarly, the Socratic method does help develop some critical thinking processes, but it mainly teaches students how to extract and understand doctrine.

I have just completed a book that shows law professors how to understand and teach critical thinking: How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why.

Critical thinking is “[t]he intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.”  (here)  “It is . . . automatically questioning if the information presented is factual, reliable, evidence‑based, and unbiased.” (here)  Critical thinking is a set of processes, including metacognition, conceptualizing, synthesizing (constructing), asking questions, organizing, developing and evaluating alternatives, considering unintended results, planning, self-monitoring, reflection, spotting assumptions, evaluating inferences, exercising epistemic vigilance, supporting arguments with evidence, evaluation, skepticism, and self-direction.

Here are several things that critical thinking can do:

1.  Critical thinking helps overcome superficial thinking.  It helps you see when you are relying on unsupported assumptions or opinions.

2.  Critical thinking helps overcome thinking based solely on intuition.

3.  Critical thinking produces rigorous and disciplined thinking.

4.  Critical thinking helps individuals create questions.

5.  Critical thinking helps individuals know when they need more information.

6.  Critical thinking helps avoid unintended consequences.

7.  Critical thinking supports problem-solving.  It helps make sure you don’t skip a step in the problem-solving process.

8.  Critical thinking helps overcome biased thinking.

9.  Critical thinking helps avoid mistakes by providing a method to evaluate (double-check) one’s work.

10.  Critical thinking helps an individual critique the work of others.

11.  Critical thinking promotes deep thinking.

12.  Critical thinking helps an individual see all sides of an argument.

13.  Critical thinking helps individuals solve difficult problems.

14.  Critical thinking helps individuals support their arguments.

15.  Critical thinking helps individuals recognize how a problem is framed and overcome the framing effect.

16.  Critical thinking helps thinkers recognize when selfish motives lie behind an argument.  It helps thinkers recognize manipulation.

17.  Critical thinking teaches students how to construct the law.

My book introduces critical thinking, shows how to teach it to lawyers, judges, and law students, and demonstrates how to use critical thinking to improve the Socratic method.  It also shows law professors how to improve their teaching through critical thinking.  Finally, it includes chapters on teaching legal writing and judges.  Since critical thinking development requires practice, it includes many examples and exercises.

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Universal Design in the Law School Classroom—a Few Thoughts

Posted on January 24, 2020 by jennifersbard

One of the many things that most of us teaching in universities, very much including law schools, lack by way of training is any overview of how living with a disability affects learning, let alone what interventions might make a difference.

At best, some of us have second hand knowledge through the experience of friends and relatives (My Mom was a Speech Pathologist) who have that training or perhaps their children who are recipients of such instruction in grade school.   So no matter how willingly we provide the “accommodations” ordered by often overwhelmed university offices tasked with meeting the institution’s legal obligations, we do so without an underlying understanding of what those accommodations are supposed to achieve.  Or how they are supposed to achieve them.

Fortunately, it is not necessary to get a degree in teaching and learning to acquire a basic proficiency in how to teach in ways that make it more accessible to all students and as well as to work with experts to address the specific needs of individual students.

The resources below reflect a variety of sources for information as well as some ideas about universal design that would make learning more accessible to everyone.  It’s also helpful, in general, to be open to the idea that learning and sensory perception is different for everyone—and it’s probably better to let students make their own decisions about things like where in the room they want to sit than to adhere to traditions like pre-assigned seating.

To preview an article I’m working on, it is also important for us to realize that many of the common tasks assigned to law students, especially in classes intended to teach the crucial skills of legal research and writing, depend on levels of Executive Function rather than intelligence or knowledge basis or even ability to “think like a lawyer.”

Here are some resources:

Preparing Accessible Documents and here

An article from Diversability Magazine, Navigating Learning Disabilities in Law School.  https://www.diverseabilitymagazine.com/2017/04/navigate-learning-disabilities-law-school/

This information from Vanderbilt covers a lot of ground, and offers very practical suggestions in the section titled, “Strategies for Creating Accessible Learning Environments”

A recent survey of medical students seeking input on what would enhance their learning was a plea for no more blue slides with yellow text.   These links are helpful to make sure that we are not making life harder for students when we design slides. https://www.yorksj.ac.uk/media/content-assets/student-services/documents/A-Guide-to-Dyslexia-(PowerPoint)-A5.pdf

Here are some practical suggestions that we might offer all our students dealing with pages of dense text in small print-https://www.ws.edu/student-services/disability/teaching/learning.shtm

Hearing impairment is very common and sometimes comes on so gradually that people don’t even notice. It’s fair to assume that everyone would benefit from things like not just the Prof. using a microphone but passing one around so that students can here each other.  Here are some things to keep in mind about students with hearing impairments-including a very helpful point that no assistive device “restores” hearing and that we should respect a student’s own assessment of where in the classroom works best for them.  https://www3.gallaudet.edu/Documents/Clerc/TIPSTOGO-2.pdf

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Best Practice Contributors Highlighted in Best Articles of 2019

Posted on January 15, 2020 by Jessica N. Haller

A big congratulations to our very own bloggers, Jennifer Bard and Benjamin Madison, for being featured on the TaxProf Blog!

Jennifer Bard’s article, “Are the Students Failing the Bar Exam Today Canaries in the Coal Mine warning us of a More General Need to Change Legal Education?” and Benjamin Madison’s article, “New Rubrics Available to Help Law Schools that Have Adopted Learning Outcomes Related to Professional Identity Formation” were both listed as TaxProf Blog’s “Best Legal Education Articles of 2019.”

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Refuting the False Trope on Clinical Courses and Bar Passage

Posted on January 8, 2020 by rkuehnblog

Robert Kuehn, Washington University School of Law

It has been observed that “the fewer the facts, the stronger the opinion.” Until recently, this could be said about the possible influence of enrollment in clinical courses on a student’s likelihood of passing the bar examination. While there was a shortage of empirical studies on any possible relationship, there have been plenty of opinions on how taking those courses might be harmful, opinions often reflected in graduation restrictions on clinical courses and requirements for bar subject-matter courses.

But, there are now significantly more facts to refute those opinions. Two recent, large-scale studies have both found no relationship between the number of law clinic or externship courses or credits a law graduate took and her likelihood of passing the bar exam.

In a forthcoming article in the Journal of Legal Education, academic records of ten years of law school graduates of Washington University in St. Louis and Wayne State University were reviewed for any relationship between the number of law clinic, externship, or, more generally, experiential courses or credits and bar passage. After first accounting for the possible influence of law school grades on bar passage (the most significant predictor of bar success), the study found no correlation at either school between law clinic or externship enrollment and bar passage — no relationship between participation in a law clinic or externship and passage, none between the number of clinical courses and passage, none between the number of clinical credits and passage, and no evidence that students graduating with lower GPAs were disproportionately enrolling in those courses as a way to avoid doctrinal courses (another not uncommon trope). This lack of any relationship was in spite of increased enrollment in experiential courses at both schools over the ten-year period and decreased enrollment in courses teaching material tested on the bar (referred to as bar subject-matter courses).

The article notes that nationwide data on experiential course enrollment and bar passage also belie any claim the two are related. That data indicate that as enrollment in experiential courses was increasing from 2006-2016, bar passage percentages were fairly steady and that the recent decline in passage coincided with decreased, not increased, enrollment in those courses.

A recent study commissioned by the California State Bar found a similar lack of relationship between law clinic and externship courses and bar exam performance. The study reviewed law school coursework and performance on three July exams for over 7,500 bar applicants from eleven California schools. It found no relationship between the number of academic credits from law clinic courses and exam performance, either across all schools or even when reviewing schools separately. Similarly, there was no relationship between the number of externship or internship credits and performance, again when examined across all schools or within schools. The broad range of entering credentials at the eleven schools, and lack of a relationship even within those schools, indicates that the results should be applicable to most law schools, including those with lower LSATs and undergraduate GPAs for entering students.

The study results from Washington University/Wayne State and the California State Bar are similar to smaller studies at Texas Tech and the University of Denver that also reported no statistically significant relationship between enrollment in a law clinic or externship course and bar passage.

The Washington University/Wayne State and California State Bar studies further revealed that opinions about the value of bar subject-matter courses should be moderated. There were small correlations at both schools between the number of bar subject courses and bar passage. But this result (explaining less than 5% of the variability in bar outcomes) was only for low performing students and additional courses showed no marginal benefit once students took the school’s average number of bar courses.

The California State Bar study focused on whether taking a specific course was related to performance on the bar exam topic taught in those courses. It found that neither attendance nor performance in courses covering any of the 13 bar-related topics was related to performance on the corresponding California bar exam or Multistate Bar Exam content covering that subject.

Studies at other schools also indicate that enrollment in bar subject-related courses do not support broad claims about the benefit of taking those courses.

It is time to put away the misinformed trope of participation in law clinic and externship courses harming a student’s chances of passing the bar exam and let the facts do the talking. Law schools should recognize and students should be told they can obtain valuable preparation for the practice of law by enrolling in clinical courses without affecting their likelihood of passing the bar exam.

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Active Retrieval Practice: Known to Improve Learning but Underappreciated?

Posted on December 8, 2019 by benjmad

Exam time has arrived in law schools.  Students who want to excel on exams (and later, as attorneys) would do well to try out active retrieval practice.  To understand the value of retrieval practice, some brief discussion of well-established cognitive science is necessary.  Learning involves (1) taking knowledge into short-term working memory, and then (2) moving it from working memory to long-term memory by actively using the knowledge.[1]  In their excellent book, Teaching Law by Design, Dean Michael Hunter Schwartz, Professor Sophie Sparrow, and Professor Gerald Hess explain this process of storing learning in cognitive schema.[2]  They liken schemata to a “folder system[] provided for users of computer operating systems.”[3]  As they observe, however, storing knowledge “isn’t enough.  To analyze a problem, students must recall (“retrieve”) what they have learned and use that learning . . . .”[4] 

Research on cognition demonstrates that meaningful learning in any discipline requires the learner to perform some form of active retrieval exercises to be able to use the knowledge in analyzing and solving problems.   Active retrieval methods are ways in which the learner recalls knowledge and uses the recalled knowledge to solve problems or answer questions.[5]  Recalling for mere “knowledge checks,” sometimes called rote learning, is not effective.[6]   In the law school arena, a student can recite a memorized rule but not be able to apply it to fact patterns in a way that shows understanding.   Effective retrieval-based learning activities require the student to solve problems or to answer questions.  By doing so, the learner strengthens her understanding  of, and ability to recall, the knowledge.[7]  In law school, mid-term exams require students to recall information at least in mid-semester.  The problem there is that neuroscience shows a marked forgetting curve: if learning is not retrieved within a few days of its being stored, the knowledge is lost and must be relearned.[8]  Indeed, retrieving and using the knowledge are the critical parts of developing meaningful learning. 

               Spurred by the adoption of ABA Standard 314, my colleagues and I have been giving mid-term exams and using a variety of interim assessments designed to have students to recall information from previous classes. I regularly have a mid-term that includes multiple-choice, essays, or both.  The exams are graded and students receive a model answer. I discuss with students the answers to the assessments and common mistakes (e.g., failing to state rules accurately, insufficient application of facts in supporting one’s analysis).   The exam and follow-up discussions achieve the goal of providing the “meaningful feedback” that ABA Standard 314 seeks.   The mid-term is also summative. My experience is that many students do not take a practice, ungraded mid-term seriously. Having the exam count, but not so much as to prevent a student from recovering from a poor exam, helps to ensure that students prepare for and spend time on the mid-term.

               Another way that I have incorporated active recall practice is by using multiple-choice polling questions.  In the first class after we finish a course segment, we begin the class with multiple-choice questions that students answer by polling.    I ensure participation by recording the polling, by student, and including their responses (or lack thereof) as a class-participation part of the grade.  In answering the questions through polling, students must recall knowledge to analyze the question and reach a conclusion.   For example, after completing the study of removal jurisdiction and procedures, I use a series of multiple-choice polling questions that explore the many nuances of removal.   These sessions provide “meaningful feedback” to both students and to me.   If everyone misses a question, you can be sure I go back to discuss the area.  I also encourage anyone who missed a question in these polling sessions to meet with me after reviewing the topic addressed by the question.

               I urge students not to rely solely on the mid-term and the polling sessions as a means of ensuring they have learned material well.  Instead, I highly recommend preparing answers to essays under timed conditions.  At times I provide a model answer after they practice an essay. I also invite students to meet with me to go over their answers.   In these discussions, I almost always find some area in which a student has a mistaken understanding of a rule or concept.  If we did not uncover that misunderstanding, a student could repeatedly recall a flawed rule or approach.  Hence, I appreciate more than ever the wisdom of Standard 314’s emphasis on formative assessment.   After resolving any misunderstandings, I encourage a student to rewrite an answer.  That allows the student to revisit the topic and solidify her understanding.  Indeed, the act of writing itself helps students to embed the rules and concepts more firmly in their memory.[9] 

               What is true for law school is also true for the Bar Exam.   Last summer Sara Berman and I created a podcast for the ABA on practicing tests (essays, Multistate Performance Tests [MPTs], etc.) as some of the most effective ways to prepare for a state’s Bar Exam.[10]  Ideally, a student learns everything she needs to know in law school Bar review is just that–review.  More often, Bar applicants have a vague recollection of rules and concepts from their time in law school.  In other words, Bar applicants often find themselves relearning rules and concepts.  In so doing, they will learn more effectively by practicing an essay or MPT answer and by submitting these answers for grading to their Bar Preparation company and the faculty at their law school who help Bar applicants.  In doing these exercises, they benefit for at least two reasons.  First, it will identify areas in which the applicant’s knowledge of rules and concepts is so weak that she cannot answer a question.   Knowing that, the applicant can review that area and know that she needs to do so.  Second, exercises such as practice essay answers will require applicants to recall the rules they do know and apply them.  The more they do so, the more likely they are to remember them on the Bar. 

               Repeated, active retrieval practice is one of the best ways to learn to perform on exams or in law practice.  Yet, despite the data showing its effectiveness, such practices are not the norm in higher education.[11]  The practice is likely not the norm in law schools.   Standard 314 ought to help to some extent increase active retrieval before the end of the law school semester.  Yet, at present students are not spending their time as wisely as they could. Instead of preparing detailed outlines, and memorizing rules or flash cards, they would learn more from methods that require them to recall and apply legal rules and analysis.   Indeed, one might say this fact is one of the best kept secrets in law school. Perhaps it is time to let this secret out.

[1] Michael Hunter Schwartz, Sophie Sparrow & Gerald Hess, Teaching Law by Design 4­–7 (Carolina Academic Press 2009).

[2] Id.

[3] Id. at 5–6.

[4] Id. at 6.

[5] Jeffrey D. Karpicke, A Powerful Way to Improve Learning and Memory: Practicing Retrieval Enhances Long-Term, Meaningful Learning, American Psychological Association (2016), available at https://www.apa.org/science/about/psa/2016/06/learning-memory (last checked Dec. 6, 2019).

[6] Id.

[7] Id.

[8] Louis N. Schulze, Jr., Using Science to Build Better Learners: One School’s Successful Efforts to Raise its Bar Passage Rates in an Era of Decline, 68 J. Legal Educ. 230, 245 (Winter 2019).

[9] Bryan Goodwyn, The Magic of Writing Stuff Down, 75 Educational Leadership 78–79 (April 2019).

[10] Sara Berman and Ben Madison, Practice Makes Passing, Episode 6 of American Bar Associations Path to Law Student Well-Being Podcast series, available at  https://www.spreaker.com/show/path-to-law-student-well-being  (June 22, 2019).

[11] According to Dr. Karpicke, college students likewise use rote learning methods more than they use active retrieval exercises.  See Karpicke, supra note 5.

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Guiding Students From Law School Into the World

Posted on November 21, 2019 by Irene Scharf

It seems that one of the things we law professors can do to help our students develop their identities as professionals and their obligations to the greater society is to incorporate into the law school events that plug students into what’s going on in the “real world.“ I did just this in a small way this week by offering all the students the opportunity to attend and participate in a talk/discussion about the Supreme Court arguments that were heard last week in the DACA case.

The students were invited to attend a portion of my immigration clinic class. Food and pro bono credit hours helped, I’m sure, but the event brought a plentiful group of students I had not interacted with before, who were both knowledgeable about and interested in the issue of the day.  The event lasted only about 45 minutes, but that was long enough to produce a lively and I think informative conversation about oral arguments, professionalism, case theory, the role of policy, administrative law, and of course the specific legal issues raised by the case.

With so much of the law school endeavor focused on exam taking and other tasks that force students into a single-focused, competitive role, bringing them into a discussion about key issues at stake in our country in the moment could likely enhance their connections to their future and help them envision some individual goals they can aim for once out in that “real world.”

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Best Practices on Halloween Must Include the Notorious RBG

Posted on November 5, 2019 by Jessica N. Haller

By Jessica N. Haller, Blog Assistant of “Best Practices for Legal Education” Blog

Last week, Albany Law Students gave back to our host community, enjoyed the mental health break of seeing children in costumes enjoy Halloween, and collaborated with each other in meaningful ways.

Every year, Albany Law School opens wide its doors and creates a safe place for local children to trick or treat on Halloween right in the school’s gymnasium. There are families who now come year after year and who now see the law school as a place their children might one day attend. Most of the student organizations participate, setting up tables, handing out candy to the children or face painting. Many groups often have an activity or game or other treat for the costumed kids. For example, the Student Bar Association had a “Connect Four” game and the Black Law Student Association made “worms in dirt” dessert (chocolate ice cream, Oreos, and gummy worms, yum!).

I am currently on the e-board for the Albany Law School Women’s Law Caucus and this year, we decided to combine fun with a chance to teach children about our favorite U.S. Supreme Court Justice: Ruth Bader Ginsburg (RBG). We created a game called, “Pin the Dissent Collar on RBG.” We knew that many of the children coming to this event might not know who RBG is and we hoepd it might spark some conversation. We printed a large poster of RBG’s iconic Supreme Court photo and purchased three different kinds of black ribbon. The first little girl to participate was very enthusiastic about playing the game and asked about this mysterious “RBG.” You can see her playing the game in the photo below:

Ruth Bader Ginsburg is a feminine icon for women, especially for those of us in law school and in the legal academy. Despite the unending obstacles, she persevered. She was turned away from jobs despite being at the top of her class, and when she was able to get a job, she was paid considerably less than her male counterparts. She argued several cases, making it clear in each that gender equality is a constitutional right. For more information on RBG’s life and career, see her bio on Oyez (I also highly recommend a great documentary called “RBG” found here).

(Author and Blog Assistant, Jessica N. Haller, dressed as Agent “Peggy” Carter)

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“Being Human To My Students And Letting Them Know I Care”

Posted on October 23, 2019 by Jessica N. Haller

This is a wonderful blog post I found on the Institute for Law Learning and Teaching by Jane Korn, Professor of Law at Gonzaga University School of Law. As a current law student, I think that this practice should be implemented in all law schools for first year law students. I had a professor during 1L who did something similar. He would start the class every week with, “so how is 1L going?” and we could spend 10 minutes discussing general concerns about 1L and papers or exams we had coming up. Not only did it ease some of the anxiety, it also showed that the professor really cared about the students. It was like they were saying, “I’ve been there too and I’m here to support you.” Kudos to Professor Korn for setting aside some time in her class to do this!

“I have taught first year law students for a long time.  Please do not ask how long!  But years ago, I became worried about the mental health and stress levels of my first semester, first year students. I teach a four credit, one semester course in Civil Procedure during the first semester of law school.   On the last day of the week that I teach in Civ Pro, I take a few minutes out of class time and ask my students to tell me how they are doing.

The first time I do this, usually at the end of the first week of law school,  I tell my students that it is my custom, from time to time, to take time out from Civ Pro, and talk about anything they would like (with some limits).  In some years, it takes weeks for them to take me up on this offer.  Other years, they start right in.  They ask questions like the following:

  1. When should I start outlining?
  2. How much time should I spend studying every night?
  3. How important is getting involved in extracurricular activities?
  4. What if I don’t know what kind of law I want to practice?
  5. Do professors care about grammar and organization on a final exam? (I only answer what I expect and do not answer for other faculty)

I think that much of the time, they do not get a chance to ask a law professor these kinds of questions, and can usually only ask upper class students.  While we have faculty advisors, students may or may not feel comfortable asking them questions like the above.  They eventually do (and sometimes quickly) feel comfortable asking me a wide variety of questions.  They sometimes ask personal questions and, within reason, I answer them because it makes them feel more comfortable with me.  Questions on gossipy matters about other faculty are off limits. If for example, they complain about another professor,  I handle this question with a smile and say something like – you should ask that professor about this issue.

I set aside class time for several reasons. First, while I do worry about giving up valuable teaching time, lessening the stress of my students may make them more able to learn.  Second, students often feel like they are the only one with a particular concern during this first semester, and they often do not have the ability to know that others have the same concerns or questions.  In the first year, many of our students are not from this area and are far away from support systems, at least at first until they can make friends at law school.  The ability to know that other students have the same problems they do can lessen the feeling of isolation.  Using class time to answer questions to the entire group may help them with this sense of isolation and being the only one who doesn’t know something.  It also lets them see that their concerns are important and credible.

Every year my teaching evaluations reflect this process positively.  Students feel like I care (which I do).  However, the reason I do it is to increase their comfort during those first few exciting, confusing, and terrifying months of law school.”

 

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Building an Ethos of Self-Directedness Among First-Year Law Students

Posted on October 15, 2019 by Jessica N. Haller

By: Mary Walsh Fitzpatrick, Assistant Dean for the Career and Professional Development Center at Albany Law School

Background

I attended a workshop on professional identity formation sponsored by the Holloran Center for Ethical Leadership in the Professions last June. In preparation for the workshop, I read a number of articles on professional identity formation, including “Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education.” The article posits “[f]or law students to move towards real professional identity formation in their career, they must be self-directed.” Self-directedness, some of the hallmarks of which are self-reflection, goal setting, seeking and receiving feedback, and using sound judgment, is integral to finding meaningful employment and career satisfaction. I know from first-hand experience working within law school career development for the past 13 years, students who are most successful in gaining meaningful employment take ownership of their experiences and make intentional choices early in law school. I believe self-directedness more than any other factor, including grades, leads to meaningful careers for law school graduates. The challenge is to cultivate self-directedness in all law students by creating an ethos of self-directedness with regard to career development beginning in the first year.     

While at the Holloran Center workshop, I devised a career development program to introduce first-year students to professional identity formation with emphasis on self-directedness. I subsequently shared the proposed program with my team at the Albany Law School Career and Professional Development Center and we collaborated on the program presentation and exercises. At Albany Law School, students are assigned an individual career counselor with whom they work one-on-one over the entire course of law school. Thus, in planning and implementing the program my colleagues and I chose to each lead the program for our sections separately, beginning individual relationships with our students and setting expectations.     

We decided upon a method of teaching that would allow students to practice self-reflection, seeking and receiving feedback, and using good judgment in the context of career development. The overarching goal of the program was to help students recognize self-directedness as a key component for successful professional identity formation leading to meaningful careers.

The Program – Setting the Stage

We communicated the program as a mandatory one-hour program and emailed to first-year students several weeks before the program the Individual Career Plan (ICP), a self-assessment tool we created several years ago, and our handbook for developing a legal resume. The students were asked to complete their ICPs and draft their legal resumes in preparation for the program. 

  • Reflection

We began the program by introducing professional identity formation and self-directed learning, emphasizing curiosity, initiative, feedback, self-reflection, resilience, judgment and ethics. We provided students with the Holloran Competency Milestones Assessment of Student’s Ownership of Continuous Professional Development (Self-Directedness) and asked them to take a moment to reflect upon and identify their current stage of development on the continuum. Recognizing each student comes to law school at a different stage of self-directedness we did not ask students to share their findings with the group, rather we called attention to law school providing students with the opportunity to move along the continuum with the goal of graduating competent learners who take full ownership over their careers by setting goals and seeking resources to meet those goals.

Next, we asked students to form small groups and to reflect upon and share with each other why they chose to attend law school, skills they hope to build, and experiences they hope to gain during law school. After this breakout session we asked one student from each group to report back some of the group’s findings. Two distinct motivations for attending law school emerged from this exercise, students: wanting to utilize existing strengths they identify as befitting a legal career; and wanting to acquire the skills necessary to be catalysts for change. Notably, both motivations evidence students’ strong desire to align their skills and values with meaningful employment.

  • Seeking and Receiving Feedback

In the second portion of the program we focused on seeking and receiving feedback in the context of career development. We began by educating students on critical thinking skills sought by legal employers, such as analyzing, evaluating, reasoning, and problem solving. We then asked students to provide peer-to-peer feedback on their resumes utilizing the resume handbook we provided before the program and tools we discussed during the program. Students worked in couples or groups of three to seek and provide each other with constructive feedback on how to better formulate existing resume descriptions for a legal audience. After the exercise we asked students to contribute one piece of valuable feedback they received.    

  • Judgment

In the final portion of the program students were divided into groups and provided three different hypotheticals related to career development decisions. Each group was asked to analyze the issues and report back how they would address the situation presented. The hypotheticals included issues of reneging on a job offer, misrepresenting grade point average on a resume, and failing to follow up with a professional connection. Through dialogue following the exercise we emphasized the importance of reputation, impact of reputational damage, building professional relationships, and the imperative of follow-through.  Many students acknowledged although no single hypothetical scenario would necessarily determine success in finding meaningful employment, the decisions made with regard to these issues could impact one’s professional reputation and future opportunities.   

Conclusion

We hope to have initiated student appreciation for the impact of self-directedness on professional identity formation that is integral to beginning meaningful careers after law school. The next step is for each student to take the initiative to complete an online strengths assessment, the VIA Character Strengths Survey, make a first career counseling appointment where they will receive individualized feedback on the ICP and legal resume and identify next steps in planning their careers.  

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Save the Date!

Posted on October 2, 2019 by Jessica N. Haller

Emory’s Center for Transactional Law and Practice is excited to announce the date for its seventh biennial conference on the teaching of transactional law and skills.  The conference will be held at Emory Law, on Friday, June 5, 2020, and Saturday, June 6, 2020.

More information will be forthcoming on the Call for Proposals, the Call for Nominations for the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills, open registration, and travel accommodations.  We are looking forward to seeing all of you on June 5 and 6, 2020!

Thank you to the Conference Coordinator, Kelli Pittman, for sending us this information!

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The Legal Interviewing and Language Access Film Project (LILA)

Posted on September 30, 2019 by Jessica N. Haller

By: Laila L. Hlass and Lindsay M. Harris

Teaching effective interviewing skills is a perennial problem. Although there are excellent texts on the subject, few examples of real or model interviews exist, particularly ones which incorporate collaboration issues between student partners, language access issues with the client, and how to address issues of bias when they arise in the interview.

In 2018, we designed, screen-wrote, produced and released The Legal Interviewing and Language Access Film Project (LILA), two instructional videos and a teaching guide featuring a law student clinic pair representing two different immigrant clients, in two different introductory meetings, one of which is conducted with interpretation.

Our goal was to better teach interviewing in our own experiential courses, but we also hoped to share this resource with our colleagues. Since the videos were launched, law school clinics and experiential learning programs across the country have adopted the use of the videos. At the time of writing, more than 100 educators at nearly 75 law schools have requested use of the teacher’s guide for these videos. This includes more than 30 immigration clinics, but also educators teaching in a variety of other clinics, purely doctrinal courses, as well as courses focused on client counseling and interviewing skills.

The videos raise a multitude of issues within interviewing including client-centered lawyering, collaboration, interpretation, and addressing bias. Our films enliven and deepen the learning environment by utilizing modeling, as well as stimulating classroom discussion, reflection and role play. 

In Interviewing Victor: The Initial Meeting, two law students Lisa and Max interview a teenage asylum-seeker in removal proceedings, Victor, raising a number of issues relating to initial client interviewing, including: Road mapping and organization of the interview; Building rapport; Confidentiality; Role description, including representation at later stages, and explaining the arc of case; Verbal and nonverbal cues; Tone; Answering client questions or ethical issues that are difficult and unexpected; Recording the interview and seeking permission; Taking notes; Form of questions; Word choice; Approaches to sensitive topics and response to client’s distress; Client-centered lawyering; and Working with a co-interviewer.

In Josefina: Using an Interpreter, two law students Lisa and Max working with interpreters to interview a monolingual Spanish-speaking client seeking a U visa as a victim of a crime in the United States. This video raises questions regarding: Using third person; Pacing of speech; Summarization and  expansion of interpretation; Challenges when one student speaks the client’s language but partner does not; Confidentiality; Use of interested parties, such as family members; Approaches to changing interpreters; and Use of common language words where the interpreter doesn’t know the intended meaning.

For faculty who hope to adopt the videos in a course, pro bono orientation or other training, please email either Laila Hlass lhlass@tulane.edu or Lindsay Harris Lindsay.harris@udc.edu for the teacher’s guide, indicating in which course(s) you are considering using the films.

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An Overview of “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes”

Posted on September 26, 2019 by Jessica N. Haller

Robert Kuehn, Professor of Law at Washington University School of Law in St. Louis, and David Moss, Associate Clinical Professor at Wayne State University Law School, recently conducted a large-scale study looking at the relationship between clinical/experiential or bar subject-matter courses and bar passage success in a paper entitled, “A Study of the Relationship Between Law School Coursework and Bar Exam Outcomes.” As a law student currently enrolled in a clinic, this study immediately piqued my interest.

This study was in response to fear that bar passage rates were down because of rising enrollment in “experiential courses” as opposed to “bar-subject courses.” Law schools began pushing students to enroll in more of these bar-subject courses to correct this so-called issue. However, Professor Kuehn and Professor Moss observed that there was no evidence to suggest that taking more bar-subject courses was appropriate advice for all students. Their study looked at this missing evidence between bar-subject courses and experiential learning and bar exam outcomes for ten years between two law schools: Washington University School of Law (WashU) and Wayne State University Law School (Wayne State). Both schools only require the designed first year courses and the upper-level writing courses mandated by ABA accreditation standards.

Previous studies performed in states like Texas, Colorado, and California looked at the effects of coursework and bar passage rates. These studies did not support the claim that taking more bar-tested law school course improve chances of passing on the first attempt. Notably, a study done in Indiana concluded, “simply forcing lower-performing students to take more upper division bar-subject courses will not solve the bar examination failure problem.”

The first goal of the present study was to determine whether a graduate’s enrollment in elective experiential courses was related to first-time bar passage success. Next, it was to assess whether enrollment in elective courses that cover bar subjects was related to bar success.

Data was collected from law school graduates from 2006-2015. The following table outlines the number of graduates with LSAT scores and bar passage rates between the two schools:

The next table looked at graduate characteristics such as undergraduate GPA, LSAT score, 1L GPA, and law GPA and their correlation with bar passage:

It wasn’t until 2005 that the ABA began requiring graduates to receive professional skills instruction with as little as one credit satisfying the requirement. In 2014, the ABA changed this to require six credits beginning with 2019 graduates. The study authors decided to track enrollment in skills courses versus bar passage over this time period.

The table above reveals a solid line depicting that average bar passage percentages were steady from 2006-2013 (this is when experiential course enrollment increased by over 50%). During the significant rise in experiential enrollment, bar passage percentages were largely steady. “Therefore, efforts to link declining nationwide bar passage rates to the rise in experiential course enrollment are not supported by national statistics.” A more likely contributing cause for bar passage declines since 2014 is weaker credentials of incoming 1Ls.

At WashU, it was found that while taking at least the average number of bar courses is associated with increased likelihood of passing the bar, there was no statistically significant increase in bar passage associated with bottom-quartile LGPA graduates who took more than the school’s average. This was similar with graduates in the bottom half of their class at Wayne State. Results for both schools indicate that graduates in bottom quartile who take fewer than the average number of bar courses at their school were associated with a significant increase in bar failure. Further, at both schools, students entering with scores lower than 150 were associated with pass rates significantly below the school’s average.

This study concluded that the claim that the dramatic decline in bar passage rates is due to law students taking more experiential courses or fewer bar-related courses is not supported. It characterized efforts to cap experiential credits in order to improve bar passages rates are “misguided,” warning that schools should not expect that “mere exposure” to more bar courses will significantly improve bar passage rates.

Also see “Legal Skills Prof Blog” and “TaxProf Blog” for more posts on this study

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Building A Solid Foundation Before Week 1

Posted on September 19, 2019 by Jessica N. Haller

By Louis Jim, Assistant Professor, Albany Law School

One year ago, I began teaching Introduction to Lawyering, which is the required 1L course on legal analysis, communication, and research at Albany Law School. The textbook I used, like many “legal writing” textbooks, provided information about the types of legal authorities (primary or secondary) and weight of those authorities (mandatory or persuasive). And any textbook about legal authorities would, of course, also provide information about this nation’s three-tiered court structure. In class, I discussed those concepts, showed flow charts illustrating the structure, and distributed a map of the circuit courts of appeals. But I failed to assess whether my students truly understood the significance of the three-tiered structure and how that significance related to their other first-year classes.

This past summer, I attended the AALS New Law Teachers Workshop, where a number of presenters inspired me to think about new methods to assess whether my students understand the foundational needed to succeed in the first year and beyond. In response, I made two significant changes to my course design this semester. First, I required my students to complete weekly reflections in the last ten minutes of our Friday class.[1] The students must tell me two things they learned in my class and two things they want to learn more about in class. Students may then leave comments or ask questions on any topic even if the comments or questions are not related to law school.

Second, rather than simply discussing court structure with them, I created an in-class activity to assess whether students understood the significance of that structure. The students completed this activity at our first Friday session, which was the last day of their first week of law school. I rewrote a hypothetical that was originally written by my colleague at Albany Law School, David Walker, Assistant Professor and Director of the Schaffer Law Library, for a quiz in his advanced legal research class. A copy of the hypothetical can be found here:

attachment-1-federal-court-hierarchy-exerciseDownload

The students spent the first ten to fifteen minutes of class reading the hypothetical. I then asked a series of multiple choice and short answer questions using Poll Everywhere based off the hypothetical. A copy of those questions can be found here:

attachment-2-questions-for-exerciseDownload

I provided a link to the webpage where students would respond the poll’s questions, and students answered the questions using their laptops. Their anonymous responses were displayed on the large monitors at the front of the classroom. As we worked through the questions and hypothetical, I defined common terms that students would encounter in the cases they read for their doctrinal classes (e.g., motion, ruling, opinion, holding, judgment, etc.). I also distributed an outline that allowed the students to write the definitions and take other notes. A copy of that outline can be found here:

attachment-3-structure-and-authority-class-outlineDownload

I hid the responses until at least three-quarters of the class had responded as I did not want a student’s response to be influenced by their classmates’ responses. By displaying their answers anonymously, every student could participate without fear of embarrassment, a fear prevalent in the first few weeks of law school. By using Poll Everywhere, the students who did not choose the right answer also saw that they were not alone. For each question, we also discussed each of the answer choices and why a particular choice was correct and the other ones were incorrect. Because everyone had to answer the questions, everyone—and not just the victim of the cold call—stayed engaged.

Because we completed this activity on the first Friday that we met, the students also completed their first reflection on that day. One student had commented in her reflection that she wished that we had completed that activity before the first week of classes began because it gave her a better understanding of the assigned case law in her doctrinal classes. I met with this student that following Monday, and she said she had a better understanding of her Week 2 reading assignments in her doctrinal classes after having completed the activity. Another student added that the activity filled many gaps in his understanding of the material in his doctrinal classes. Later that week, another student told me in person that she also wished we had completed the activity before the first week of classes.

As attorneys and/or professors, we often take for granted our understanding of the hierarchy of authority of the court system and our understanding of the terminology common in case law. Those just starting law school, however, may have never read a case before. But more often than not, the new law students’ first law school assignment requires them to read a case (likely more than one) and be prepared to discuss the case (or cases) on the first day of class. Those readings contain terms and concepts that new law students may have heard on television or read in a newspaper, but most new law students lack an understanding of how those terms and those concepts relate to the substantive law. Students may then feel discouraged in the first week because they don’t understand the concepts that seasoned attorneys take for granted. Although law students should and must develop skills in synthesizing rules and applying them, as educators, we must provide a solid foundation so that students can start developing those skills. With that in mind, next year, I hope to complete this activity even earlier so that students begin Week 1 with a solid foundation.

[1] This semester, I teach two sections of Lawyering, and each section meets once on Wednesday and once on Friday. On weeks in which we don’t have time to complete the weekly reflection in class, the reflection becomes an optional assignment that students can email to me. Much to my surprise and delight, some students completed the optional reflections too.

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