Five Tool Lawyers

Leading Northwest legal practitioner and technology entrepreneur Marty Smith has an interesting post on the Five Tool Lawyer over at Legal Refresh. Using the metaphor of the Five Tool Lawyer, Marty breaks apart the stages of problem solving, incorporating risk analysis in a way I found helpful. In my response Five Tool Lawyers and Legal Education, I critique aspects of the Five Tool Lawyer metaphor for compressing too much into the 1st [Use interviewing skills to gather client facts, goals and needs] and 5th tools[Counsel, document, negotiate and advocate on behalf of client]. But here’s why I thought the metaphor was compelling:

"Compelling, because [it] moves beyond issue spotting v. problem solving to articulate the stages of problem solving, targeting a spotlight on often overlooked aspects. . . . By focusing on risk, the metaphor highlights two often neglected stages of the lawyer’s work – “use judgment to assess actual risks” and “problem solve for best way to meet client’s needs with minimal risk.” At the same time, it implicitly places the legal problem in the larger context of the individual’s life, or the business’s health. And it underscores the fact that lawyers need to know how to assess the significance of legal risks within that larger context."

Teaching the Millennials

Just appearing in the Fall 2013 edition of the Clinical Law Review is an astute and riveting article by Emily Benfer and Colleen Shanahan, “Educating the Invincibles:  Strategies for Teaching the Millennial Generation in Law School” that should give us all pause, especially those of us now teaching our second and third generation of law student.

After describing specific types of nurturing that this generation experienced during their formative years, the article provides detailed and specific strategies for teaching these students, who were born between 1981 and 1999. It is assumed that, because of the particular formative experiences these students experienced as children, they have distinct needs, as learners, than did those of other generations, and that, if we want to “reach” them most effectively, we need to understand first who they are, so that we will be able tailor our teaching to them, in both the traditional and clinical types of classrooms.

The authors see these students as “confident and optimistic,” “service and cause-oriented and want to contribute to the greater good.”  Yet they are also described as pressured, impatient, sheltered, and privileged. Because they have been told they are special, they can seem to have a sense of entitlement.  Their assumption that short-term achievement equals long-term success causes them to focus on grades and not on the processes by which their grades are achieved.  They do not expect failure, so are often surprised when their performance does not result in high praise.  Again, because they were taught that they are “winners” simply for participating, they are accustomed to receiving awards for just that. They can become uncomfortable with criticism and  “aggressive and even caustic when criticized.”

Further, according to Benfer and Shanahan, being inseparable from the internet, these students are able to take in massive amounts of information simultaneously and consider themselves to be efficient multi-taskers.  Yet, because they are accustomed to instantaneous answers that do not require deliberation or examination, they may not have developed the tools to extract the depth of information necessary to develop critical thinking.

The types of learning environments preferred by Millennialists are made-to-order for clinical professors.  According to the authors, these students thrive in learning environments that are self-directed, interactive, collaborative, team-based, and hands-on; and that employ frequent and multiple forms of feedback, multi-media, and stress simulations and real life opportunities for learning.

On the other hand, because of their common experiences with teamwork, the authors caution that these students may be uncomfortable working independently, perhaps due to the higher risk of personal failure.

Especially if you’re engaged in clinical teaching, do you recognize any of these traits in your recent students?  Have they chafed at independent work?  Been so over-confident that they have prepared insufficiently for court or other case responsibilities?  Pushed back at any meaningful critique?  Seem to feel they are entitled to that “A,” regardless of the difficulties they had with their class and/or case responsibilities?  Expected results to come not from hours of work but from an initial impression gained while reading a couple of pages?   If so, you will both enjoy and find helpful “Educating the Invincibles.”

Helpful commentary on the perennial problem of political backlash against law school clinics about their choice of clients

Tulane Environmental Law Clinic director Adam Babich has put together a helpful piece, rich with deftly chosen citations from the likes of Ted Olsen, John Adams, and Justice Souter, to demonstrate the necessity of law school clinic independence in client selection, both for educational and service purposes. It can be found here:

http://www.americanbar.org/publications/professional_lawyer/2013/volume_22_number_1/twenty_questions_and_answers_about_environmental_law_school_clinics.html

In a few pages and accessible Q & A format, it is just as applicable to and useful to share with many non-environmental clinics, such as immigration student attorneys, who handle similar work (“involving complex regulations, administrative law, and disputes involving lots of documents”) and face comparable issues: on the totem pole of public unpopularity, undocumented immigrants, especially those allegedly convicted of crimes, may rank even lower than environmental activists.

My one quibble in presenting the article to students would be to comment on the use of commonplace phrases like “take the case” or “accept the case” or “reject/turn down the case.” I try to teach our student attorneys to think more in terms of “making an offer of representation” or “not prepared to offer representation.” It’s a subtle difference, I know, but not unrelated to the thrust of the piece in terms of the nature of the lawyer’s role, and a small way to reinforce the central concept of client as decision-maker.

Vanessa

Clinical Law Review Workshop on 9-27-14 — Please save the date

The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 27, 2014, at NYU Law School.

 

The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

 

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshopFull drafts of the articles will be due by September 1, 2014.

 

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has committed to provide 10 scholarships of up to $750 per person to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference.  The Board will review all scholarship applications and issue decisions about scholarships in early July. The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts.

 

If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at randy.hertz@nyu.edu.

 

– The Board of Editors of the Clinical Law Review

Congratulations UNM and Editors of the proposed new Best Practices Book!

This weekend, the University of New Mexico hosted a workshop BEST PRACTICES IN LEGAL EDUCATION: The Walls Are Coming Down” in which draft chapters of a new “Best Practices” book were reviewed and discussed.  The proposal to create a second book focused on best practices in legal education is the brainchild of Professor Antoinette Sedillo Lopez, ably assisted by Professors Deborah Maranville, , Carolyn Kaas and Lisa Bliss. The symposium workshop brought together law professors from throughout the country interested in how legal education and the world of law schools has changed since the publication of the 2007 book Best Practices in Legal Education. Facilitated by Professors Beryl Blaustone and Alex Scherr, the conference explored how many law professors fluidly move from former silos of clinical, legal writing, lawyering, librarian, doctrinal, theory, or skills concentrations to pioneer a new kind of curriculum, better prepare students for the profession, explore the limits and usefulness of technology, and deepen the understanding and learning of law students through self-improving assessment processes.

Fully cognizant of the pressures on legal educators, the fact that not all in legal education welcome the need to change, and the moral imperative to address the concerns of debt-ridden unemployed law students, the authors, editors, advisory board members and readers reviewed challenges, cross-cutting themes and areas of promise. They engaged in innovative thinking about how to move legal education forward for the good of the profession, society and the students who desire to be lawyers of tomorrow. The keynote speaker for the Friday night dinner and author of the first book, Professor Roy Stuckey, directed the participants’ attention to what legal education should look like in 2027. At the same time, he reminded us that those seeking to improve legal education today stand on the shoulders of folks such as the honorable Rosalie Wahl and former ABA president Bob MacCrate who paved the way for the changes we have seen in the last 40 years. He recalled their joint mission to prepare “agents for justice in our communities.”

Every law graduate needs to understand fully that civic professional role of the lawyer. And every admittee to the bar has a sworn duty to improve our system of and access to justice. Returning to those principles can help prioritize our cost-cutting and can position us to move forward in the best interests of our students, our institutions and the society our profession is pledged to serve.

The Language of Experiential Learning

Here’s the note on terminology promised in Monday’s post.

For CLEA’s in-progress Building on Best Practices:  The Walls Are Coming Down book project my co-editor Antoinette Sedillo Lopez and Iare considering whether to include a section on terminology.   At least one effort to provide some consistency in usage is currently percolating, initiated by the Alliance for Experiential Education coordinated by Northeastern Law School.  An Alliance committee led by Elon’s Cindy Adcock is discussing initial draft recommendations on terminology in the hope of encouraging consistent usage.  Convincing schools to adopt any such recommendations could, of course, be a monumental task.  If accomplished, however, it would go a long way towards helping prospective students compare curricular opportunities.  And it could help prospective employers evaluate law graduates’ legal education.

My thoughts on what’s behind these initiatives and on the terminology conundrum:

The current downturn in law school enrollments, still bleak job prospects and changes in the structure of the legal profession has been accompanied by an explosion of interest in experiential learning, as law schools respond to the call to graduate practice ready professionals and seek to justify the three-year law school.  Law schools are experimenting with a wide range of experiential learning structures both for offerings involving real lawyering  — shameless self promotion moment: see my co-authored article Re-vision Quest:  A Law School Guide  to Designing Experiential Courses Involving Real Lawyering — and simulation based efforts.   Labels used for such efforts have proliferated and consistency of usage seems nowhere to be found.

Among the labels:

Clinic:  Perhaps the term with the longest pedigree and most consistency, but no shortage of unresolved issues,

  • Must a clinic involve an individual client?
  • If an effort focuses on tasks like lobbying or community education  that don’t require a J.D. and bar admission, should it qualify as a clinic?

For instance, should Street Law,  a community education effort, qualify as a clinic?  Schools that say “yes” include my own University of Washington, Georgetown,  where Street Law originated, UCLA and many others.   But Street Law is also offered as a  for-credit course not qualifying as a clinic, a part of a pro bono requirement, or a volunteer student activity.

My own program defines clinic expansively, in an effort to counterbalance the traditional litigation focus of law school, especially the first year.   Our clinic offerings include  mediation, legislation, public policy, community education, plus several that  include multi-forum advocacy.  But other leading educators have argues passionately for a narrower, more client focused definition.

Externship/Internship: These seeming  twins cause much confusion among the uninitiated.  The primary distinction follows from current ABA accreditation rules for externships, i.e for-credit, not-for-pay placements with a range of legal employers and opportunities for reflection through a classroom component or otherwise; internship is typically used for otherwise similar experiences that do not satisfy ABA requirements.

Practicum:  The new kid on the block in law, but familiar in social work and other programs for experiences analogous to law school externships. May be used as synonym for externship or  to denote an externship-like offering that doesn’t satisfy ABA requirements (my school uses it for LLM. “externships”).  Increasingly popular to describe externship-like “in the field” experiential opportunities  integrated with a seminar classroom course. In the last several year, for instance,  Georgetown, has developed a structured program of such courses in order to provide experiential education for a higher % of the student body in one of the larger law schools in the country.

Service learning:  A term widely used in undergraduate and K-12 contexts.  Often adopted by individual teachers eager to heighten their students’ understanding of current issues though exposure to how they play out in context.  May look very similar to some versions of a “practicum”.

Lab course:  A term initially coined at Seattle U. to describe small credit  simulation based courses to accompany doctrinal courses and provide an opportunity to apply the doctrine in a lawyering context and still often used that way, in for instance, Gonzaga’s first year required Skills Labs.   Other schools appear to use the term Lab for a specialty program designed to provide practical exposure to an area of law,, often including opportunities that would be considered a “clinic” under a broad definition of that term, e.g.  Chicago’s Corporate Lab, Vanderbilt’s International Law Practice Lab .

is it a ‘pipe dream” to think we can, or should, rationalize our use of these terms?  Your perspectives welcome.

Law School Clinics and American Law

It is fantastic to see clinical work-product being used in court cases; to have clinical briefs being referenced in front of the Supreme Court of the United States shows the impact that effective experiential study can have and the effects that clinic experience can have on the future practices of these students.

“The April 30, 2013 issue of Law Week (Vol. 81, No. 41: the Supreme Court opinions issue) reports three interesting decisions, but these decisions are also interesting for another reason, visible in the lists of counsel at the end of each case. It turns out that clinical programs were on the briefs for all three cases.

The Stanford Law School Supreme Court Litigation Clinic helped represent Adrian Moncrieffe in his successful challenge to the argument that his conviction for possession of 1.3 grams of marijuana with the intent to distribute (not necessarily to sell) was an aggravated felony barring him from eligibility for certain discretionary relief from deportation. Moncrieffe v. Holder (No. 11-702, decided April 23, 2013)

The Institute for Public Representation, a program of Georgetown University Law Center, helped represent the plaintiffs/petitioners in McBurney v. Young (No. 12-17, decided April 29, 2013), an unsuccessful effort to establish that Virginia’s Freedom of Information Act, which offers access to information only to Virginians, was unconstitutional under either the Privileges and Immunities Clause of the US Constitution’s Article IV, § 2, cl. 1, or under the Constitution’s “dormant commerce clause.”

The George Mason University School of Law Supreme Court Clinic helped represent the State of Louisiana in Boyer v. Louisiana (No. 11-9953, decided April 29, 2013), in which the Supreme Court dismissed the writ of certiorari as improvidently granted. Boyer contended that the prolonged delays in his trial were attributable to the state’s failure to fund the public defender system, and that his right to a speedy trial had been violated, but the Court, over a dissent by Justice Sotomayor (joined by Justices Ginsburg, Breyer, and Kagan) did not rule on the constitutional question.

It may be that no member of the clinical community will agree with the arguments advanced by all three of these clinical programs in these cases. That’s fine, and just as academic freedom gives protection to clinics undertaking controversial cases so it gives protection to debate over what cases clinics ought to take. But what strikes me about this issue of Law Week is the unmistakable illustration of the fact that clinics are now a force shaping American law, in many local courts and offices and also in the highest court in the land.”

Stephen Ellmann
Professor and Associate Dean, New York Law School

The original post can be found here.

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