Why law profs should teach law students to write for the digital reader in the age of COVID-19 (with checklist)

On behalf of Joseph A. Rosenberg, Professor of Law, CUNY School of Law

1.Introduction and Context

The author proposes that law professors teach legal writing intentionally designed for the digital reader.

The proposed framework uses visual design elements and digital functionality to overlay traditional structures of legal writing. Writing for the digital reader addresses the challenges of reading on a computer screen and amplifies best practices for legal writing. The result is a conceptual framework for written communication that helps bridge the gap between the writer’s “intention” and the reader’s “attention,” regardless of medium (paper or digital).[1]       

The COVID-19 pandemic and the move to online learning by law schools has exposed the pre-existing need to incorporate writing for the digital reader as part of the fundamental framework for teaching legal writing across the law school curriculum. Digital writing represents a “best of both worlds” approach: to write well for the digital reader is to write well for the paper reader.

Digital writing does not replace the creative, human writing process, complex narrative and analysis, or the role of “old school” technologies in that process—for example, pen and paper. Similar to the difference between a paper and digital map, writing for the digital reader adds dynamic dimensions that enhance communication between the writer and reader.        

Writing for the digital reader meets today’s law students, who are mostly “digital residents,” where they are. It facilitates “adaptive transfer” by encouraging all students to draw on their learning experiences, including oral and written communication. It is a bridge for students from their lived experiences in the digital age to the unfamiliar landscape and structures of legal writing and analysis.

In addition, the lynching of George Floyd (and many other Black people in America) and the Movement For Black Lives, has forced the U.S. and its legal system to confront its white supremacy origins. As part of this broader reckoning, law professors and law schools need to re-examine lawyering traditions and practices, including legal writing. Unless we actively practice more contemporary approaches to lawyering, include anti-racist discourse, critical modes of analysis, and different assessment practices, we will be, in the words of Professor Teri A. McMurtry-Chubb, “Still Writing at the Master’s Table.”

Writing for the digital reader prepares law students for contemporary practice: “Lawyering in the Digital Age.” In legal education, the shift to digital technology, according to Professor Conrad Johnson, “transforms the way we practice traditional lawyering skills and requires us to teach the new skills of contemporary practice.”[2] Writing for the digital reader is an example of a contemporary approach to a traditional lawyering skill.  

The author hopes to encourage law professors and law schools to help reshape the teaching and practice of legal writing to better reflect the reality of lawyering in the digital age. Law professors can use the checklist below to get started.

2. Why law professors should teach writing for the digital reader.

Written communication is a core lawyering skill for law students: in many ways, to be a lawyer is to be a writer. The fundamental concept of legal writing, and how it is taught in law schools, should reflect the reality that the audience will likely be reading on a computer screen. This includes the full range of professional writing that law students will learn and do while in law school and as lawyers.[3] Even writing that may have to be printed and read on paper, for example, “know your rights” materials and communication to clients who are detained or incarcerated, will benefit from a “digital writing” approach.   

Scholarship on visual design and the impact of digital technology on legal writing provides a theoretical and practical basis for shifting our notion of a legal document from paper to digital. For example, Professor Ruth Anne Robbins, in her 2004 seminal article, Painting with Print, and in her 2015 work with Professor Steve Johansen, Art-iculating the Analysis, made important connections among visual design techniques, legal writing, and lawyering strategy. Professor Kirsten Davis, in her 2014 article, The Reports of My Death Are Greatly Exaggerated, asserted that “all legal reading is rapidly moving to on-screen legal reading.” Professor Ellie Margolis, in her 2015 article, Is the Medium the Message? observed that, “[T]urning the traditional, linear, text-based brief into a multidimensional e-document is a key example of how the medium changes the message and suggests that it is time to rethink that classic legal document.”

Lawyers no longer have a choice about incorporating technology into their practice and ABA Model Rule 1.1, Comment 8 requires that lawyers understand the risks and benefits of technology as part of the duty of competence, and ABA Formal Opinion 477R provide guidance about the lawyer’s duty to make “reasonable efforts” to secure confidential client information when using technology to communicate.

A 2012 survey found that 58% of federal court judges read briefs on an iPad, some U.S. Supreme Court Justices have been reading briefs on computer devices since at least 2010, and recently, all three judges on the Supreme Court in New Delhi, India used laptops in a remote paperless hearing. Various courts, for example, the 7th Circuit Court of Appeals, have detailed information about the design of briefs and courts are beginning to transition from mere e-filing of scanned documents to accepting or requiring electronic briefs with expanding digital functionality.

Visual design and digital functionality can be found in the work of the U.S. Supreme Court: for example, Justice Stephen Breyer used visual design in his 2020 Opinion in June Medical Services v. Russo (bullets and annotated map, see pp. 6-9, 32-33, 37), and the Annual Report on the Judiciary by Chief Justice John Roberts is a digital document with hyperlinked citations.

Any form of legal writing, broadly defined, can be transformed from “paper” (two dimensional) to “digital” (multi-dimensional) with modest changes in design, structure, and functionality. Writing for the digital reader incorporates, accentuates, and builds upon the components, structures, frameworks, and techniques that are effective for the paper reader. Digital writing can be adapted by law professors because particular elements or tools can be overlaid, sprinkled or infused regardless of the particular document, assignment, class, or module.

Law students can use a visual design approach to both construct their written analysis in outlines and drafts (for example, by using organizational visuals to deconstruct complex rules or facts) and present in their final writing whatever digital elements are appropriate, depending on the purpose and context of the writing. A writing for the digital reader framework emphasizes and synthesizes the following interactive elements:

3. Our “brain on screen” explains the need to write for the digital reader.

In the digital age, we are challenged by massive information overload and multiple distractions. This heightens the need to understand how “screen habits” affect the way in which we process information and maintain, develop, or lose cognitive focus.

Most law students are “Millennials,“ born after 1980 and now America’s largest, most diverse, and some say progressive, generation; they are starting to be joined in law schools by “Generation Z.” Both generations are “digital residents” who, despite a persistent digital divide, have inhabited a world of computers, smartphones, and social media for their entire lives. As noted by Professors Ellie Margolis and Kristen Murray in their 2016 article, “Using Information Literacy to Prepare Practice-Ready Graduates,” these students have “grown up composing text almost exclusively on screens, [and] have a very different experience with the reading and writing process than lawyers who began practicing law in the twentieth century.”

Reading on a computer screen (including laptop, tablet, smart phone) is associated with distraction, lack of sustained attention, and diminished comprehension. Researchers and educators fear that deep learning and meaningful comprehension are threatened as we try to read and:

To meet these challenges, we need to cultivate what Maryanne Wolf calls “cognitive patience” in our students (and ourselves) and, ultimately, a “biliterate brain” that switches effortlessly among different modes of reading.[4]

Regardless of medium, law students can develop and maintain habits of mind and strategies to compensate for diminished attention and manage information overload. Metacognition—awareness of their own learning process—will help students (re)balance and self-regulate their learning strategies and improve their ability to engage in deep reading and learning, even while using computer devices.

4. Checklist for teaching law students to write for the digital reader.[5]

Learning to write for the digital reader can help students improve their writing. This checklist incorporates practical approaches that draw on visual design, best practices in writing, and digital functionality. Professors, students, and attorneys can use it as a guide for written communication.

 Meet students where they are. Most of our students are “digital residents” who have lived their entire lives in the digital age. We can help them transfer their online experiences, knowledge, and skills to academic and professional writing assignments with practical frameworks and approaches.

 Begin with a reflection exercise. Ask students to reflect on their writing, including papers, articles, texts, emails, tweets, and posts.

  • What techniques do they use to communicate in writing online?
  • In more traditional papers?
  • What makes reading online easier or more difficult?

 Writing as a process. Writing for the digital reader can help students think about their writing process.

  • How do they generate and organize ideas?
  • Do they take notes, create an outline, write in stream of consciousness, or use other approaches?
  • What technology do they use: pen, paper, computer, a combination of paper and computer?

 Writing choices flow from content. Encourage students to focus initially on the goals of the writing and their ideas, research, analysis, and content. Thoughtful analysis, strong content, and clear objectives are the foundation for effective writing. Structure and format flow from substantive analysis.

 See writing with fresh eyes. Ask students to “step back” and review an initial draft.

  • Do lines of text appear “bunched” together?
  • Does the student’s eyes “glaze over” when they are reading due to long sentences and paragraphs?
  • Do they have to struggle to find the meaning of text that is too dense and hard to follow?

 Write to overcome screen reading challenges. Research shows that when we read on a screen, we are more distracted, less able to maintain sustained focus, and our comprehension diminishes. We can teach students how to use techniques and strategies to compensate for these problems.

 Eliminate or minimize distractions. Practice focused reading in 20-30 minute blocks without checking texts, emails, or social media. Minimize notifications and any other distracting “pop ups.” Take a short break.

 Headings, topic sentences and paragraphs. Encourage students to use headings and sub-headings in the early stages of writing process and, for most writing, through the final draft. This helps organize ideas and thoughts. Headings can “announce” topics or make an affirmative point. Topic sentences and concise paragraphs will also help both writer and reader.

 Spacing, lines, and fonts. Be aware of spacing, lines, and font (typography). The size and type of the font will likely depend on the conventions of the assignment or genre of writing. Spaces between lines, and the length of the lines of text, can help or hinder the reader.

 Use visuals and media to present information.

 “Organizational visuals.” Also called “navigational” visuals, these techniques are a great starting point to help the writer’s understanding, analysis, and structure. When writing about elements, rules, and multiple items, students can express information using “tab form” to create lists with:

1. Bullets,

2. Numbers, or

3. Letters.

 Graphs, tables, & charts. These are more tools students can use to communicate information. The key is to highlight content, not format of presentation. Students can use a simple table to compare and contrast information in context with practical, side by side examples.

 Images, diagrams, & videos. Depending on the context, students can use multi-media to support & illustrate their analysis. Media can help students develop ideas & analysis, and also meet the goals of the assignment.

 Hyperlink citations. We are so used to clicking on hyperlinks that we barely notice: they are a key difference between digital & paper writing. Writing assignments should include hyperlinks to legal citations and other resources.

 Best practices for hyperlinks. Hyperlinks can help students think differently about the purposes and form of citations.

  • Does the hyperlinked authority enhance text?
  • Where should it be located?
  • What is the proper form?
  • Does the hyperlink work; what if it breaks?

 Hyperlinks, paywalls, and #NoTechForICE. Use hyperlinks to discuss public and private databases, including ethical dimensions: @thomsonreuters (@Westlaw) & @ElsevierConnect (@LexisNexis) dominate legal research, law school course websites, and sell data to ICE & law enforcement agencies.

 Bookmarks. Students can insert bookmarks in longer documents. These bookmarks enhance functionality. Students can use bookmarks without a full table of contents. Students can insert hyperlinks to bookmarked sections in a roadmap or introductory section at the beginning of a document.

 Self-assessment. As part of the thinking and writing process, students see their piece of writing as a whole.

  • Is there a balance between text and space?
  • What visual tools are used in the writing?
  • Are the visual tools appropriate for the context?
  • Do the visual tools advance the purpose of the writing?

 Continue the editing, revising, and proofreading loop. In the digital age, learning how to write for the digital reader is a necessity. Students can learn to write at the intersection of visual design, best practices in writing, & digital functionality, and also improve their screen reading. Professors can too!

5. At a glance typography for legal writing for the digital reader.

Design choiceRecommendationsComments
Typeface or fontBaskerville Bookman Book Antiqua Calisto Century Century Schoolbook Garamond New Baskerville Palatino Times New RomanSerif for body of doc Sans Serif for headings Any “Book” font good for legal writing (Some say avoid Times New Roman because designed for newspaper columns and not as legible)  
Font sizeBetween 10 & 13Depends on letter height & line length
White space (including margins)Use expansively 1.5 as default, 1.0 and 2.0 as appropriateAvoid bunching together text without enough space. Double space not as effective for screen reading
Headings & subheadingsUse headings & sub-headings Sentence format Arabic numerals (1.0) Arial Century Gothic Trebuchet CorbelUse Sans Serif font for contrast Avoid: ALL CAPS, Small Caps, Cap At Beginning Of Each Word, & underline Align with left margin (do not center) Insert extra space before each sub-heading (distances from prior section, connects with related text)
Organizational or navigational visualsUse for elements, lists, points (bullets, numbers, letters, other visual signals).Avoid “burying” items within a paragraph. Use to complement, not replace narrative text.
Page numbersUse p. 1 of 20Avoid p. # alone
Length of documentWord countNot number of pages
Line length & justificationShorter line length (6”) (margins equal to or more than 1”) Rule of thumb: line should be 2 or 2.5 times alphabet length (52 to 65 characters)Use proportional spacing

[1] Maryanne Wolfe, Reader Come Home (HarperCollins 2018).

[2] Conrad Johnson, Lawyering in the Digital Age at 308 in Bryant et al., Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (Carolina Academic Press 2014)..

[3] For example, formal legal memoranda and briefs, articles, essays, emails, letters, websites, posts, tweets, blogs, “DIY” guided interviews, court forms, reports, and community education materials.

[4] Maryanne Wolfe, Reader Come Home (HarperCollins 2018).

[5] Modified from author’s Twitter thread on @JoeRosenbergLaw, March 13, 2020.

“Take-Aways” from Day 1 of Drexel Conference

Over 1,000 legal educators are taking part in a two day conference “Leaning into Uncertainty: Ensuring Quality Legal Education During Coronavirus,”  hosted by Drexel Law School and University.  Brief opening plenary remarks were made by Northwestern Law Professor Daniel Rodriguez who cautioned against “virtue signaling” noting that today on May 26th, we don’t know the choices students, faculty and others will make in August.   He called for legal educators to work across law schools to engage in “Collaboration on Steroids!”

After very brief “framing” discussions of questions, participants were assigned into scores of breakout groups.  Today’s Roundtable topics included:

Roundtable 1: Beyond Zoom! Moving from Emergency Virtual Classrooms to a Rigorous, Engaging Online Experience

Roundtable 2: Designing Curriculum and Programs in a World of Social Distancing: Sections, Schedules and Changing Circumstances

Roundtable 3: Maintaining High Quality Experiential Learning Opportunities from a Distance

Each breakout group recorder took notes which will be compiled into a report.  The hope is to make the lessons from the conference useful this summer as legal educators re-imagine law school operations and adapt our teaching methods and designs to meet student and public health needs.

I was able to participate in Roundtable 1 and 3 and found the discussions useful in thinking about my summer course redesign, the needs of our Justice Center, and the different way different schools can adapt and innovate. I jotted down a few “take-aways:”

General 

  • Time and Space are no longer the same as they were pre-pandemic.
  • To be a good teacher virtually, just like teaching in residence,  you have to be YOU!
  • What parts of your teaching are MOST important to be Synchronous? and how do we move other parts to be asynchronous?
  • Who could we record now (besides ourselves!) that we can use for asynchronous learning this FALL .. For e.g., share a hypo with other faculty in your department, or other subject matter experts from other law schools, or practitioner experts and record their reaction to a hypothetical that you can assign students to review after having discussed the hypo in breakout groups and  reported back.
  • If we are socially distanced with masks, and spread apart in the classroom, and we are teaching both virtually (through the class streaming or recording) and in residence at the same time, what works for that kind of socially distanced teaching? Might Zoom sometimes work better?

Community Building Ideas

  • ESPECIALLY for 1L’s in building community – Use Zoom questions for registering to ask students community building questions regarding hobbies
  • Start now to create break out rooms for 1Ls pre-assigning over the summer with asking of human questions.
  • Opening up Zoom 10 minutes ahead as if you are standing by podium and can be asked questions
  • Reframe the week – conversation starts on chat or CANVAS before class and continue  into and after class. 
  • Offer off class opportunities for virtual tea, coffee, happy hours to discuss what’s happening with students generally or what’s happening in the world

Experiential

  • Take Advantage of this moment.  Clinics and experiential courses could serve as important front line workers for the unprecedented need for legal services.
  • How do we overcome barriers to actually get to the people in need and to get them what they need?
  • How do we teach students to be community and client-centered if we are not in the community but physically or socially distanced?
  • How do we prepare students and ourselves to perform competently in the world of virtual courts and lawyering when the rules, protocols and comfort level with the virtual differ across kind of state and federal courts and among different judges?
  • How do we build the people-centered core of clinical work that helps students develop skills, values and networks in interpersonal relationships?
  • How do we resource our students and clients for virtual legal practice?

Lots to chew on and looking forward to hearing more tomorrow!

Fifteen Simple Ways (“low hanging fruit”) for Law Professors to Integrate Professional Formation and Development into Online Classrooms

by Sara Berman and Neil Hamilton

During this spring semester, legal education like nearly all education sectors, underwent an overnight revolution, moving from largely an in-person to an online delivery format. Educators have had to adapt to not only to new technologies but to new ways of communicating, adopting many new teaching and learning methods, new grading policies, and more. Understanding that many law faculty have been completely overwhelmed by having to change so much so rapidly, but knowing also that this change will continue, in all likelihood, into this summer and fall, we propose some simple steps that faculty can take to incorporate professional formation and development into online law classes, all of which can be employed in in-person classes as well.

I. Contextual Background

First, what is meant by professional formation and development?  Many publications have detailed these concepts at length.[1] For the sake of brevity here, each student should demonstrate an understanding and integration of:

1. Pro-active professional development toward excellence at all the competencies needed to serve others well in meaningful employment; and

2. An internalized deep responsibility to others, especially the client and the legal system, whom the student serves as a professional in widening circles as the student matures.

There are several key principles that should guide the development of strategies that foster professional formation and development. Holloran Center scholars have been building a framework of key principles to guide the development of the most effective curriculum, culture, and assessments to foster each student’s growth toward later stages of development on the two foundational professional formation and development competencies,[2] conducting research and analyzing scholarship on (1) higher education in other disciplines, particularly medical education, (2) moral psychology, and (3) self-directed/self-regulated learning.

Four research windows agree that an effective curriculum (including assessments) that promotes the two professional formation and development learning outcomes should:

  1. Take into account that students are at different developmental stages of growth and engage each student at the student’s present developmental stage – Go Where They Are;
  1. Provide repeated opportunities for reflection on the responsibilities of the profession and the habit of reflective self-assessment in general;
  1. Emphasize experiential learning, feedback on the student’s performance, and reflection; and
  1. Emphasize coaching.

An additional research window suggests the following curricular engagements to foster each student’s growth toward the two professional formation and development learning outcomes:

5. Experiences that create cognitive dissonance/optimal conflict with the student’s current developmental stage on either of the ethical professional formation and development learning outcomes;

  1. Instruction that helps the student understand how new knowledge is building on the student’s prior knowledge and competencies (student’s existing narrative);
  1. Instruction that helps each student understand how the professional formation curriculum assists the student to achieve his or her goals; and
  1. Instruction that helps each student understand and implement specific steps to grow toward later stages of development.

II. Fifteen simple questions or strategies

We need to remember that this generation of law students also experienced the Great Recession of 2009-11; now they are experiencing the current crisis and will in all likelihood face yet another serious recession or more dire economic struggles ahead –not to mention health and safety related hardships.  The questions/strategies below may be helpful to provoke constructive reflection and discussion, and hopefully to positively channel at least some important concerns about moving forward in their professional lives in this challenging context.

The following are questions that a professor can pose to students to spark self-reflection and awareness about professional formation and development:

  1. “Assume you meet a lawyer who could be important in your employment search and the person asks some version of, ‘What did you learn in this crisis?’  Write a brief answer to this question –or record a brief video of yourself answering this question.” 

The teaching opportunity suggested with this writing prompt is to provoke thoughts about this underlying query: “What did you learn that would be useful to an employer?” Thoughtful answers would go toward versions of I learned adaptive capacity skills, perhaps with words such as: a) “I learned that I know how to figure out solutions to a host of unanticipated changes and challenges,” b) “I made X changes to adapt to Y challenges.” Or, c) “Actions I have taken so far and/or will take to adapt and eventually thrive, even in the face of many challenges, include Z].”  Student answers might include specific examples of “grit,” “resiliency,” and positive or growth mindsets that helped them through pandemic-related challenges offering evidence that the student would demonstrate similar resilience as a future professional.[3]  Note: where students video themselves, they are also simulating how they might orally respond to such a question in an interview.

  1. Same situation as in the first query but posing this question: “What did you learn about the organizations, businesses, or business sectors you observed?  Write specific examples of how they reacted, adapted, or failed to do so during the pandemic.”
  1. Talk to a person whom you know who has experienced and transcended a crucible in life and ask what they learned from the challenges going forward.  As students: “What did you learn by asking the question and/or from the response?  What follow-up questions did you ask and why?”
  1. At the end of a Socratic Q & A session (in-person or online), ask students to write down any other questions they would have asked if they were the professor. The ability for students to see themselves in a professional role, here as professor, is critical to making the successful transition from student to professional.

The following are actions that a professor can take to support students while encouraging their professional formation and development:

  1. If you are comfortable doing so, talk with your students about the crises/crucibles/difficult times in your own professional life or the life of your clients, noting what you and they learned?
  1. Log on to synchronous online classes 10-15 minutes early or stay for 15-20 minutes after class to talk and listen to students’ comments about “life” and in particular about their professional life and concerns during this crisis.  This underscores the notion that a vital part of professional life is to engage in collegial discussion; it stresses the importance of personal connection as an integral part of professional work.  You might analogize “official” class time to office work time, and these pre- or post-class discussions to attending bar association meetings or receptions with colleagues. Taking just a few minutes before or after class also promotes belonging and work-life balance and underscores the importance of continuing to engage in personal and professional networking, especially as students are facing extraordinary health, financial, and psychological stress, and are forced to stay at home.
  1. As a faculty member, attend an extra-curricular event led by the Dean of Students, the Career Services office, the Academic Support faculty, and/or an event organized by a law student affinity group, and sit in the audience if invited when LRW faculty hold oral arguments. Attend these now, virtually, and plan to attend in person when you can.  Law schools host many events to help students, some of which are part of programs you strongly believe in. Theoretical support is important, but your presence (online or in person) as a faculty member, even for a few minutes, carries far more weight that you will ever know in terms of whether students take such programming seriously. This will also help students realize as future professionals how important their presence will be at law office functions, networking opportunities, and community events.
  1. Provide extra credit in class for students who make thoughtful explicit connections between classroom assignments and any outside pro bono work they are doing or plan to do. There will continue to be limitless opportunities for meaningful pro bono work as society weathers this storm – assisting with unemployment issues, bankruptcies, evictions, and more. Share with your students (in an email, recorded message, or synchronous online class) any pro bono work you are doing or examples of pro bono work you did in the past, noting how it has made you a better lawyer and more competent and empathetic professional.
  1. Tell students why you went to law school, and ask them to think about why they came to law school. (You can send this as an email, post it as a discussion board exercise in the LMS, or bring it up in a Zoom or other synchronous class.) Tell them about how your purpose with respect to your understanding of what it means to be a member of the profession may have changed over the years. Is it changing now in this crisis?  

For faculty involved in planning fall Orientations, think about including time for incoming students to write a Why Law School letter to themselves; collect the letters and return them to students during the summer between 1L and 2L and again before they begin bar exam preparation. Finding one’s “why” and holding fast to it are critical to success in law school, on the bar exam, and in practice.[4]

  1. When students pose a question or answer a question in a way that demonstrates that they listened to (or read) a previous student’s comments and integrated those comments thoughtfully into their new question or comment, the Professor can drop an email or instant message note saying, “The way you asked (answered) this question shows you listened carefully to your classmate’s comments (or listened to and recalled a dialogue from one of our last classes). That’s great! Critical listening (or critical reading) skills are among the most important qualities of a successful lawyer. As just one of many examples, you might well find yourself in the position of eliciting more important information and posing better, more thoughtful follow-up questions because you critically listened to a witness’s answers in a deposition. Thank you again for your thoughtful question/comment. And, keep developing this important skill.”

Little time is needed to reinforce and praise professional behavior and the demonstration of critical lawyering skills; the potential for positive impact on student engagement, well-being, and learning, in addition to on their professional formation and development is great.

  1. Professors can also help students improve listening skills by periodically stopping class (in-person or in a synchronous online class), for example after you have posed a question, and asking students to write down what you just asked (noting whether they believe they heard and understood your question) and then email you their answers. Collect the answers and choose some to read or post, anonymously. Warn students in advance that you will be doing this. And, be transparent about the nature and purpose of this assignment: to encourage individuals to sharpen their own listening skills. You can also use this exercise as an opportunity to explain the purpose of questions generally in the law school classroom – that they center not just on the 1-on-1 between professor and student, but on everyone collectively listening carefully (or reading questions posted on bulletin boards), just as they will need to listen to clients, colleagues, and witnesses. (Similar exercises can be useful to help students train critical reading skills.)
  1. Distribute (via email or on a discussion board) a master list of the key skills/qualities of competent lawyers (for example from Schultz and Zedek or IAALS) and/or note (in live class, by email, or on discussion board) a few of the key skills/qualities that you believe the work you are doing is helping to train during each class so that students can “check in” and ask themselves if they are honing these skills. Reading such practice-minded lists will empower students who are building certain skills but still working on others to continue to believe that they “have what it takes” to become competent lawyers. (You might also ask students to consider which competencies are most relevant to help clients in a crisis.)
  1. Bring guest speakers to online and in-person classes, such as practitioners who can talk about the entire range of competencies needed in the various areas of practice.[5]  Guest faculty can also provide insights into differing perspectives on parts of your courses. CALI.org has posted a list of professors willing to Zoom into classes as guest lecturers at https://www.cali.org/content/guest-speakers-available-remote-teaching-law-school-courses-coronaviruscovid-19
  1. When/if you give formative assessments (in-person or as part of asynchronous or synchronous online learning), make explicit which of the lawyering competencies each assessment is measuring – how and why. Provide concrete examples of the transferability of skills from success in law school and on the bar exam (where applicable), to success in law practice and as professionals.
  1. Give a talk (in a synchronous online class or in a recorded message), before the end of the semester if possible, or during this summer, to try to blunt the pain that the law school curve can bring and to encourage all of your students to feel that they belong. Even though many schools have changed the grading policies to pass/fall for the spring 2020, many students will be even more concerned about their law school GPAs and their potential impact on future employment. Now more than ever is an important time for students to read the Roadmap.[6]

There is no one right message; this has to be authentic for each professor. But, an example might include something like, “You are all used to getting A’s. You cannot all get A’s in law school. What you can all do is your best, and can and must, as professionals, engage in continuous learning and improvement. If your grades and/or comments on exams do not reflect the quality of work you will need to be doing to best serve clients when you graduate, please talk with me; ask me to review your exams and help you determine how to improve. The career path of great lawyers involve continuous improvement. Your goal is to be a lifelong learner.”

III. Conclusion

As noted at the outset, the authors applaud law faculty nationwide whose nimbleness served as irrefutable evidence of a collective dedication to students and to the continuity of graduating future leaders who will protect the rule of law. The suggestions in this paper are merely that, thoughts on some simple steps to incorporate professional formation and development into online law classes. The authors hope that these suggestions spark ideas for faculty to adapt as they choose, and that a discussion will continue to further develop both additional simple steps and more comprehensive programming on professional formation and development in online and in-person formats, as we weather the storms resulting from and adapt to changes required because of the 2020 pandemic.

The authors are available to discuss these further and encourage readers to contact the authors with additional strategies for integrating professional identity formation into legal education. This list will be updated and available on the Holloran Center website.

Neil W. Hamilton, Holloran Professor of Law and Co-director of the Holloran Center for Ethical Leadership in the Professions. https://www.stthomas.edu/law/facultystaff/a-z-index/neil-hamilton.html;  SSRN author page

Sara J. Berman, Director, Academic and Bar Success Programs, AccessLex Center for Legal Education Excellence; formerly held Assistant Dean and Director positions Whittier and NSU Law Schools, and served as faculty and in senior administration of nation’s first fully online law school. SSRN author page


[1] See generally body of work collected at https://www.stthomas.edu/hollorancenter/resourcesforlegaleducators/publications/

[2] These general principles here appeared first in Neil Hamilton, Formation-of-an-Ethical-Professional-Identity (Professionalism) Learning Outcome and E-Portfolio Formative Assessments, 48 UNIV. PACIFIC L.REV. 847, 856-59 (2017).

[3] Neil Hamilton includes many additional strategies to help students and for students to help themselves to pave the way toward developing meaningful employment opportunities in Roadmap: The Law Student’s Guide to Meaningful Employment, Second Edition (ABA Publishing, 2019).

[4] Purpose-driven learning is a cornerstone of bar success, as Sara Berman writes in the introduction to Bar Exam Success: A Comprehensive Guide (ABA Publishing 2019).

[5] Inspired by her civil procedure professor who brought a journalist to class to discuss the differences between the types of questions lawyers ask and those that journalists ask, and why, providing an engaging deep dive into the importance of facts generally, author Berman regularly invited police officers to her in-person criminal procedure classes and a family court judge to her online community property classes, which resulting in The Courtroom Comes to the Classroom, a collaboration between Professor Berman and Judge Mark Juhas.)

[6] See Roadmap, supra at note 3.

 

New York State Bar Association Leads with Bar Exam Questions

Patricia E. Salkin*

On April 4, 2020 the New York State Bar Association once again delivered a resounding thumbs down to the Uniform Bar Exam (UBE) as a measure of competency to practice law in New York.  Five years earlier, the Association’s Committee on Legal Education and Admission to the Bar delivered a report that was overwhelmingly approved by the House expressing the sense of the profession that a move to the UBE was a bad idea. 

The NYSBA Committee on Legal Education and Admission to Bar (CLEAB), which had long studied the bar exam, hosted a session during the annual meeting on January 16, 2019 titled, “A Question of New York Law: Should It Be Taught in Law Schools and Tested on the Bar Exam?”  A preview to that discussion, “The Role of State Law in Legal Education and Attorney Licensing,” was published in the New York Law Journal the week prior.  In April 2019, the NYSBA Task Force on the Bar Exam was appointed by President Michael Miller, “to investigate and report on the experience and impact of New York’s adoption of the UBE.”  Then president-elect Hank Greenberg stated, “New York law has long been the gold standard in American jurisprudence. The bar exam should play an important role in ensuring that newly admitted lawyers appreciate the importance of New York law, and have an appropriate grounding in it.”

On March 5, 2020, following a series of statewide hearings on the bar exam, the Task Force, chaired by the Honorable Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, released its report and recommendations.  The report contains an accurate and detailed description of meetings, stakeholders and the decision-making process that ultimately led the New York Court of Appeals, under the leadership of former Chief Judge Jonathan Lippman, to abandon the New York Bar Exam (NYBE) in favor of the UBE; and the report starkly concludes that “…since the adoption of the UBE, the fundamental purpose of the bar examination has been lost.” (emphasis added)

Accompanied by analysis of findings and explanations to support their positions, the Task Force made the following recommendations to chart a path forward for the licensing of new attorneys in New York:

  • Eliminate the New York Law Exam and replace it with a rigorous exam on New York law as a prerequisite to admission to the New York bar.
  • Conduct an independent psychometric analysis of the grading and scaling of the UBE.
  • Allow those who do not wish to practice law in New York to take only the UBE and allowing those who only wish to practice in New York to take only the Multi-State Bar Examination section of the UBE and the rigorous New York test.
  • Consider a New York law Certification program that would allow people to forego the bar exam entirely. Under this program, ABA-accredited law schools inside and outside of New York would offer courses that include New York law-based content.
  • Consider an experiential learning pilot program, which would allow second and third-year law students to spend time counseling clients, working with practicing attorneys and learning other practical skills so that a portfolio of work is created and assessed every semester.

These recommendations are welcome, especially the last two items which get to the heart of what many thoughtful national experts have maintained are the more accurate measures of competency to practice law. While under normal circumstances, degree privilege plus programs that incentivize curricular choices (in this case more New York law) and require client-focused legal skills experiences are the better measures of basic competencies, the strange confluence of the timing of this report and the COVID-19 pandemic has created a fortuitous opportunity to test some of the recommendations in the report.

The fact that this Task Force was in existence and already working on bar exam issues led NYSBA President Hank Greenberg to ask the group to separately opine on the challenges surrounding the then-scheduled July 2020 uniform bar exam in New York. Greenberg has been a staunch advocate for the soon-to-be members of our profession noting, “Graduating law school students are experiencing high levels of anxiety and distress as their lives and potential livelihoods have been significantly disrupted, and we are focused on making sure that their concerns are being heard and responded to by policymakers.”  The Task Force recommended postponing the July 2020 bar exam until early September and if the exam is still impossible at that time, then to expand practice orders to enable new graduates to begin supervised practice while waiting for a bar exam to be administered. 

While the Court of Appeals under the leadership of Chief Judge Janet DiFiore has accepted the State Bar recommendations, much more needs to be done to clarify the status of the developing procedures for licensing lawyers from the Class of 2020.  Another blog dedicated to pragmatic discourse on how to best license new lawyers who are getting ready to take their first bar exam during the COVID-19 pandemic is documenting the thoughtful and reasoned ways in which many state licensing jurisdictions are rethinking the value of the traditional bar exam limited to the unique challenges presented during the COVID crisis.  Law deans and faculty, law students and members of the profession, importantly including the leadership of the State Bar, are engaged in thoughtful dialogue on this topic with the Court of Appeals to arrive at a fair and just resolution for the Class of 2020. 

Some may think it unfortunate for the NYSBA Bar Exam Task Force to have issued its critique of the UBE at the same time that we are experiencing an unprecedented disruptor in the practice of law and in the administration of justice. However, this is precisely the time that New York can lead the country with piloting alternative ways to license lawyers with a reasoned roadmap prepared not under the pressure of the pandemic, but rather after a year-long focused study that supports the concept that there are different and equally effective, if not better, ways to assess candidate competency for admission to the bar in New York.

*Patricia Salkin is Provost of the Graduate and Professional Divisions of Touro College. She is a legal educator and a past co-chair of the NYSBA Committee on Legal Education and Admission to the Bar.     

Disparate Impact Magnified: Holding a Bar Exam during the COVID 19 Pandemic year of 2020

Yesterday the Harvard Law Review blog posted an excellent piece by a powerhouse group of legal educators who describe the prospect of a “licensing abyss” just when non-privileged folks and small businesses will need extra legal assistance to navigate the health, employment, housing and government benefits legal landscape.  On the same day, the ABA also urged states that cancel or delay the bar exam to  license law grads on an emergency basis “to help address the increase in legal needs for individuals and businesses caused by this pandemic.”

The Harvard blog authors note, in addition, the the reluctance of bar examiners and courts to find alternatives to the “closed-book, two-day exam anchored in 200 multiple-choice questions” despite the option of so many good alternatives that may well better predict competence to practice law. The authors ask,

Why do our courts and bar examiners place so much faith in this high-stakes exam to predict who is competent to practice law?

This question has puzzled readers and contributors of this blog particularly in light of the discriminatory nature of “speeded” exams  and the economic call for practice-ready lawyers. It is also puzzling when the profession itself is so deficient in diversity and standardized tests are used in ways that preference the privileged.

For 2020, the issue of disparate impact with respect to timed, closed-book exams anchored in multiple choice questions is further exacerbated by law students’ quarantine and sheltering conditions while studying for the bar exam- see the excellent piece in the NYT on how students returning home to attend classes removes the veneer that all are equal. Even more disturbing and heartbreaking is the information surfacing this week about the horrific disparate impact of COVID19 deaths on Americans of color.  Pre-existing disparities in trauma, housing, employment, healthcare, opportunity, discrimination and historical DNA exacerbate the distress and fatalities for communities of color and for those whose families and friends are populated by people of color.  Some of us – particularly our students of color – will be affected in disproportionate ways and in ways no one can predict or control over the course of the coming months.

As the authors of the Harvard Law Blog wrote, “Crises challenge assumptions and demand action. For this year, emergency licensing based on diplomas and periods of supervised practice would offer proof of competence.”  To do otherwise would demonstrate an inability of our profession to adapt and experiment, and a shocking refusal to recognize and correct disparate impacts.

NYS Law Students Urge Highest Court to Expeditiously Announce Alternatives to September Bar Exam

Throughout the country all of us are being asked to change, adapt and respond in unprecedented ways as we experience global pandemic, quarantine, loss, fear, empathy and grief.  New York’s situation seems at this moment most dramatic as the deaths due to the virus surpass those from September 11th.

Two days ago, on April 1st,  law students from the 15 New York law schools eloquently and compellingly argued for the highest court to recognize this unprecedented moment and act accordingly in their Student Letter to Chief Judge DiFiore . In addition, the 15 deans of New York Law schools co-wrote and submitted a similarly persuasive Letter from New York Law Deans to Chief Judge DiFiore.

Yesterday, April 2nd,  the National Law Journal published Judith Wegner’s An Immodest Proposal. Professor Wegner, the innovative co-author of the pathbreaking Carnegie report Educating Lawyers calls for state bars and courts to:

  1. Recognize the factors that are impeding meaningful responses;
  2. Mitigate immediate problems through supervised practice rules;
  3. Consider adopting an emergency provisional licensing system; and
  4. Recognize that other options also deserve attention.

It is incumbent upon the New York Court of Appeals to act swiftly and with innovative  measures to effectively respond to the informed voices of  New York’s law students and law deans.

Adapting to the New Normal: Tips for Socialization While Social Distancing in Law Schools

I don’t think any of us realized that the day before spring break would be the last day we would be able to walk the halls of Albany Law for a while – I know I didn’t. In fact, I couldn’t have been more excited to escape that building in anticipation of vacation. But now, I miss waving to friends, catching up between classes, and the feeling of being in the Rochester Moot Courtroom. No one expected to have to transition the entire law school online to keep loved ones safe from COVID-19.

What we need now in this time of crisis is leadership and yes, even law student leaders can play a part. In light of the current situation, student leaders at Albany Law School put on their creative thinking hats to try to maintain a sense of community by offering “virtual events” and a list of online resources. Having a sense of community brings us together and keeps us feeling connected when we can’t physically be with one another. It keeps our relationships developing and our heads kept high. Most importantly, it provides a space for support, which is something we desperately need right now.

I thought of the idea for “Pet Happy Hour” when I was experiencing my first “Zoom” class. It was just a “test” class, so there was no substantive material being discussed. Then, several students “brought” their pets to class. Everyone in the class immediately started to smile – like instant therapy! I thought about how special our pets are and how animals can help us destress. Then I thought it would be fun to host a virtual event where students could show off their pets and wind down from the week with one another (and grab a drink). Since the inception of this idea, my student group has teamed up with two others to promote this therapeutic space to the rest of the student body. I’m excited to admire everyone’s pets and of course, show off my own!

Here are a list of the events/resources, which you could potentially recommend for your school:

  1. “Pet Happy Hour” – Several student groups teamed up to host a virtual pet happy hour on Zoom, where participants are being asked to bring their pet (or come admire other pets), grab a drink, and hang out.
  2. “Virtual Murder Mystery Night” – A student group will be hosting a virtual murder mystery game night. Participants are asked to sign up beforehand on a public google spreadsheet to ensure they receive character information before the game. (Note: there is a small cost associated with purchasing the game packet. ~$2 a person).
  3. “Virtual Meditation” – One of Albany Law’s very own professors leads a meditation session on Zoom every Friday at 12PM.
  4. “Virtual Exercise” – The Wellness Initiative at Albany Law is hosting a virtual yoga session and HIIT class for students on Zoom.
  5. “Rise in Wellness Blog”The Wellness Initiative at Albany Law has a blog with many resources listed including resources specific to COVID-19. A post by our Director of Communications and Marketing provided 5 excellent pieces of advice for working from home. Here they are quickly summed up:
    1. “Create a routine”
    1. “Keep a dedicated working space, if possible”
    1. “Make ground rules”
    1. “Take advantage of technology”
    1. “Stay positive”

It’s certainly a stressful time, but I think it helps to know that none of us are alone – we’re all in this together. Just because we are social distancing, doesn’t mean we can’t still stay connected. I urge other law schools to use some of the resources I’ve provided or find other creative ways to keep that connection with students. If your school has some other ideas, I would love to hear them in the comments!

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

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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