Best Practices for Legal Education

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;

2. Provide repeated opportunities for reflection on the responsibilities of the profession and the habit of reflective self-assessment in general;

3. Emphasize experiential learning, feedback on the student’s performance, and reflection; and

4. 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;

6. Instruction that helps the student understand how new knowledge is building on the student’s prior knowledge and competencies (student’s existing narrative);

7. Instruction that helps each student understand how the professional formation curriculum assists the student to achieve his or her goals; and

8. 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.

2. 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.”

3. 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?”

4. 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:

5. 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?

6. 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.

7. 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.

8. 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.

9. 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]

10. 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.

11. 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.)

12. 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.)

13. 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

14. 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.

15. 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

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[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.

 

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