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

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:

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.

Best Practice Contributors Highlighted in Best Articles of 2019

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.”

Refuting the False Trope on Clinical Courses and Bar Passage

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.

Guiding Students From Law School Into the World

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.”

The Legal Interviewing and Language Access Film Project (LILA)

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.

Teaching What You Don’t Know—Wonderful Book with a NSFW Title

Teaching What You Don’t Know by Dr. Therese Huston is the most helpful teaching book I’ve ever come across.  It combines theory, practical advice, and reassurance in short and helpful chapters.  It has something for everyone who teaches law school at any level.  While the title might be off-putting to those being taught (maybe keep it home), as she explains it, “Teaching what you don’t know is an increasingly common reality for a majority of academics.”  To paraphrase, the only people who don’t teach what they don’t know are adjuncts hired for single classes and very senior research professors who buy out their teaching time.  The rest of us, very much including law professors who she acknowledges throughout, are essentially teaching survey courses in which it would be impossible to claim expertise for every point and chapter.

All that said, this book is truly a life-saver for the times when we truly, really are teaching what we don’t know either because we have taken on someone else’s class in an emergency or more naturally, when starting out when we are asked to teach a class for the first time. “Knowing” an area of law and “knowing how” to teach it are two very different things.  It’s also helpful when you are new at an institution and the students don’t know you.

In a few very short chapters, Dr. Huston provides practical advice for every challenge—very much including how to prepare and how to present yourself and your state of expertise in the class.  The section on “Establishing Credibility” is a must for anyone teaching something or somewhere new.  It can also help navigate the very choppy waters of teaching evaluations—which as we are all now aware reflect first impressions and often dovetail societal biases.

It’s worth some quotes— “Your knowledge of the field may be the primary way that you earn credibility from your colleagues, but you have a different relationship with students and you establish credibility, respect, and trust in different ways.  Research shows that instructors tend to lose credibility with their students when they:

  • “Show up late for class
  • Lack familiarity with the text
  • Cannot explain difficult concepts
  • Rarely ask if students understand their explanations
  • Does not make any attempt to answer students’ questions
  • Fail to follow course policies”

And even more helpful “there are several things you can do to create the kind of credibility that matters to students”

  • Show up on time for class, preferably early, so you have a chance to connect with students and find out if they have any questions
  • Periodically ask students if they understand the material

That first suggestion is gold.  I urge it on everyone.  It can work like magic.  And make your class more welcoming and inclusive. Research suggests that students care that you care—and the simple act of arriving early (even if the classroom isn’t available, you can mingle) allows you to interact informally with students who might never rush the podium after class or certainly not make the pilgrimage to office hours.

It’s also great for those who want to adopt new teaching methods.  There are a lot of teaching books—all with value.  But sometimes reading about 150 techniques for active learning is overwhelming.  Dr. Huston’s advice is highly curated, clearly explained, and very doable. I’ve given this book away several times since discovering it in the education section of a London bookstore and can’t count how many times I’ve read it and recommended it to others.  I don’t know why it isn’t better known.  Despite its title and its value to beginners and those who find themselves teaching something truly new, what the book really provides is sound, research based advice of value to everyone interested in teaching excellence-—even when teaching things you really know quite well. 

Jennifer S. Bard,J.D., M.P.H., Ph.D.,Visiting Professor at the University of Florida’s Levin College of Law

The role of law school internships and supervisors

Today’s ABA Journal contains an op ed by a law student complaining that “law school  biases”  infringe on his right to free speech. Part of his critique involved a change in clinical policies after he wore a #BuildTheWall T-shirt to his internship.

“It had been expressed that we could wear T-shirts, and that has been the norm for my one year at this internship. I took extra precaution by bringing a light jacket to cover it up if a client came to meet with me unannounced.”

Others are better prepared than I to debate the issue generally of whether his claims demonstrate bias in higher education or bias on the part of the student. Others can ponder whether as educators, we are more apt to be triggered by exclusive versus inclusive messages since we value designing welcoming learning environments  and growth mindset .  However, I am not interested in this school’s particular behaviour or this student’s startling apparent nonchalance about how his clothing affected his colleagues, peers and the workplace.  Rather, I am more interested in developing a better understanding of the difference between an academic discussion about self-expression, and the responsibilities and possible repression of some self-expression that most lawyers and law students undergo when donning their professional role as legal interns do.

In my 30 years in clinical education, I have witnessed multiple instances of clinical faculty navigating the tricky balance in communicating professional norms, protecting clients and academic programs, and  respecting a student’s rights. Here are just a few issues we have addressed:

helping students without wealth obtain professional clothing

multicultural insensitivity to clients by both majority and minority students

student difficulty interacting with racist, homophobic and/or sexist, clients, judges, witnesses or opposing attorneys

Unlaundered clothes, smelly students

tight clothes (in men and women)

Clacking heels, scuffed shoes, or wearing clogs all day, every day, one’s whole life

Hair over eyes

dirty fingernails

evolving norms around piercing, black women’s hair, women wearing pants, more casual clothing, hair with color not found in nature

evolving norms around cell phones in local courts, e-mail

learning to use an ancient device called a telephone, to actually initiate a call or listen to voicemail

navigating support for transgender students in unwelcoming situations

drooping pants, belly showing, off the shoulder outfits, cleavage

loud talking, gum chewing,

informality in general which can appear as rudeness to supervisors

“distracting” jewelry

women students raising their voices in a question at the end of a sentence

…and I am sure you teachers can add many more. Feel free.

As a law professor steeped in clinical legal pedagogy and theory, I start the conversation with a few  questions:

  • what is the student’s “educational goal” for her academic/professional journey or experience
  • what is the student’s “lawyer goal” in the context of this internship, case or professional experience
  • what are the client’s/workplace’s needs and goals
  • what are the needs and goals of the community that supports you having this experience — the support staff, the court officers, your sister and fellow students, the local legal community (in this area I first must acknowledge my priorities and how current student behavior may close off opportunities for future students)

Then I discuss with the student how the student’s desired self-expression fits within those questions and priorities, and the possible disconnect from her goals and the programs.

This is my approach.  What do you do?

 

 

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