Legal Education and Professional Identity, by Steve Friedland

I participated in a discussion group about teaching the formation of professional identity at the Southeastern Association of Law Schools (SEALS) conference in early August, led by Professors Ben Madison of Regent University School of Law and David Thomson of the University of Denver Sturm College of Law.  It was clear there was lots of passion in the room to engage students in the formation of professional identity directly and throughout law school.  The real question was how to do it.  There were some very good ideas of how to do it within the parameters of traditional classes, such as Professional Ethics, and how to do it outside of classes by affecting the culture of a school and its environments.

One of the main problems in this area, it seems to me, is that the notion of ‘professionalism’ is often a foreign concept to students; after all, until someone becomes a lawyer, how will they understand what this means?  This is where learning science comes into play, specifically experiential education, the kind advocated by David Kolb in his famous experiential learning cycle way back in 1984.  Kolb suggested that experience should be used as a learning tool in stages. An experience serves as the first stage, and is then followed by reflection, abstraction and theorization, and finally, the transfer of knowledge to new problems or questions.

This learning cycle fits into real life quite well.  If one is learning to drive, for example, then it is important to progress from the classroom to the passenger seat to the driver’s seat.  Of course, the ‘driver’s seat’ need not be attached to a two thousand pounds of nuts, bolts and engine, but can at first be behind the wheel of a simulator.  Simulation and exercises in legal education also can serve as a platform for the formation of professional identity.  For example, a simulated oral argument about a case could involve two teams of students asked to argue different positions.  This division into groups requires collaborative work and presents an opportunity to explore how professionals participate and communicate on teams.

Students also could be given non-legal exercises that raise professional identity issues.  If students were walking home from school one night and see a $20 bill sticking out of an ATM machine with no one else around, would they take it?  Why or why not?  Does it matter whether the students were now working in a courthouse where the ATM is located or working as a lawyer for the bank that owns the ATM?

From a different perspective, what if the students were mountain climbing in the Andes Mountains and were roped up with the person closest to them in the entire world at 20,000 feet. In this hypo, the person roped to the student slips and falls off of the mountain.  The only way the student can save him or herself is to cut the rope, leading to a long fall for person #2.  Would the student cut the rope?  This question raises professional ethics of a different kind — what is the mountain climber code in this situation?  Also, what factors would the student consider in making such a decision? (A somewhat similar situation actually occurred in real life with two mountain climbers high in the Andes.  The mountain climber on the mountain cut the rope and the other climber, dangling below, fell, but survived.  I would have loved to have eavesdropped on their conversation at the bottom of the mountain. See Touching the Void (2003), based on a 1988 book by Joe Simpson of the same name.)

All told, the formation of professional identity can help students connect with and maintain the values that might have landed them in law school in the first place.  And it could weave into the understanding of law the importance of the lawyer’s role within the system – and how service to others might require a different application of values than service to oneself.

Shultz and Zedeck: Collaboration and Motivation in Orientation!

One-Ls at Albany Law, just like those at many other schools, are in the midst of Fall 2014 Orientation. Today, I participated as a  “faculty observer” in a collaborative skill building exercise organized by our Associate Dean Alicia Ouellette.  Imagine my delight to see copies of Schultz and Zedeck’s 26 lawyering effectiveness factors distributed at each table in the school gym!

Teams of 20-25 students, most of whom had either just met each other or not yet met, were tasked with:

  • Assembling a small children’s bike (to be donated to the Boys and Girls Club); the first team to both build the bike and have a team member ride the teeny-tiny bike around the orange cone course set in the gym would be declared winner. :)
  • Building the tallest pasta-marshmallow structure
  • Making sure every student on the team participated in the endeavor.

Faculty participants were assigned to observe what they saw happen during the group exercise, report their observations to their student team, and explore with the student teams questions such as:

  • what worked well?
  • what was challenging about  mandatory collaboration?
  • what might they have done differently to more effectively collaborate?
  • what might these exercises suggest about effective lawyering?

The students brought good humor to the task.  They brought a range of experiences, including a few with engineering backgrounds and/or “mom/dad” know-how, and a range of abilities. The fact that the bikes were to be REALLY used by local community members was a motivating factor.  In fact, students vocally expressed concern about the safety of the quickly assembled bikes noting,  “Remember, some kid is going to ride this!” and “It has to be safe.”

By the end of the assigned time period, everyone in my group had participated …. at least a bit. The debriefing was more effective than one might have predicted. One student on my team noted gender differences in approaches – a number of women were reading instructions for assembling the bike while a few of the males started to immediately put pieces of the bike together. This led to a discussion of THE CONFIDENCE GAP.  Another student noted the difference between working on a task when you know what the outcome should look like (the bike) and working on a concept without a uniform or agreed upon vision of what the outcome looks like (the highest pasta structure). Many students reflected on the significant importance of communication skills, particularly listening.

Other teams reflected on the challenge of being asked to accomplish a collective task when most members of the team felt inadequately prepared. With faculty guidance, that team explored when that might happen in law school or in practice.  Issues such as time management, resource management – one team ran out of tape – and problem solving techniques were also discussed. Students, encouraged by faculty suggestions, also pondered what kind of teams they might participate in their post-graduation future .

As I looked around the tables, I could not help but think of Richard Susskind’s book,  Tomorrows Lawyers.  These one-Ls will be entering a profession and a world in which working with others, problem solving, creative thinking, and clear communication will be even more critical for those in our profession than in times past.   As graduates, these students will be participating in teams and in collaborative enterprises that we faculty probably cannot now envision.  However, it is our job to facilitate their acquisition of the kinds of skills and capacities and attitudes that will best serve them in the uncertain but potentially exciting future.   Happy New Semester all! Happy Facilitating!

Orientation 20140813_142119


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The Baby Has Finally Been Birthed!

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

Wishing students success on the bar exam

The Bar Exam is upcoming. And with it comes heightened stress and potential for students, but also an odd chance for diverging interests between a small number of students and their law schools.

Bar exam homonyms: high stakes; gateway, leveler, stressor, useless unnecessary burden after three years of school, fee generator, standardizing, and proficiency. I’m sure “bar exam” conjures up many more thoughts and meanings for others. For law students, the impact of this exam is wide-ranging. Most graduates spend months of intensive study preparing for the bar exam. They incur additional debt for these review courses; they devote months of their lives to study intensively for the exam. Exam passage marks the entree into our profession with all of its benefits and burdens. Exam passage allows our graduates to practice law and makes more likely their getting and keeping a job sooner rather than later.

While for individual students, we provide encouragement, cajoling, and hope for exam success, their exam success has an additional impact on us. For law schools, the bar exam is a factor in accreditation and in reputation. The ABA accreditation standards require a law school to meet a bar pass requirement that can be done in one of two ways: “either by showing that 75 percent of its graduates who took the bar exam in at least three of the previous five years passed or by showing that its graduates’ first-time bar pass rate was no more than 15 points below the average bar pass rate for ABA-approved schools in states where its graduates took the bar.” The ABA, this spring, did not follow through on a proposal that would have increased the passage percent rate requirement from 75 to 80 percent. This connection to accreditation, while arguably standardizing law schools, can recast student success on the bar exam from an individual achievement and triumph to an institutional success or failure.

Therein lies a challenge for a small number of students – reconciling the individual student’s path toward bar exam success with institutional markers of success. Where one student may benefit from repeated attempts at taking the exam, gaining familiarity and comfort and so easing stress that inhibits success, the student’s school must count that student’s learning process as a “failure” against institutional success and reputation. To foster institutional reputation, encouraging some students to wait to take the bar exam seems a good path; on the other hand, for the student who would benefit from the exposure, supporting the student’s decision to take and re-take may be the better path for the student even if not for the institution. A delicate balance is needed when we approach those students who are at risk of not passing the bar exam.

Of course, student success or failure arises from many factors, and the choice to take the exam in the face of difficulties is the graduate’s. It’s also worth remembering that many famous people did not pass the bar exam on their first try including President Franklin D. Roosevelt, First Lady Michelle Obama, and even Supreme Court Justice Benjamin Cardozo. So, I’m going to encourage all of our students to know themselves, to work as hard as they can in the way that works best for them, and of course: wish all students success on the bar exam.

Thirty-One Themes of Thought

“Thirty-One Themes of Thought” is the title I gave my fifth grade class poetry compilation.  What could this possibly have to do with best practices for law professors?

This post, my first for this blog I have long admired, I conceived as a commentary on what I call my “thematic” approach to law teaching.  In my doctrinal Family Law course as well as in my Family Law Clinic I stress recurring themes: the intense public-private tension inherent to Family Law; social change as catalyst for legal developments; storytelling as advocacy; client-centeredness; and holistic lawyering.

As I pondered this concept of “thematic teaching” my mind wandered repeatedly to that alliterative “Title” my 10-year-old brain fashioned . . . 35 years ago.  My use of the word “theme” was likely less about dedication to big-picture thinking than it was about grappling for a word other than “poem” to make my little manila-folder-booklet different from the rest in some small way.  Yet upon further reflection I find a resonance in that word choice with my current work and my teaching style.  Calling my booklet “Themes of Thought,” I believe demonstrated a constant yearning for connectivity (hence the alliteration) and a broad view (referencing the “thought” our class put into each poem)  that is part of my identity.

Taking a thematic approach to law teaching is not something I was taught–it is something that I developed organically as I grew the past 12 years as an educator.  And although I have been aware of it as my approach for years, I just a few months ago began to name it and reflect on it.  Reflection, I firmly believe, is a fundamental aspect of my professional growth as a professor and a lawyer, but also of my students’ growth.  Reflection as a tool in clinical law teaching is nothing new.  I first experienced it as a law student invited/required to submit journals routinely during my clinical year.  Borrowing that tool from my mentors was arguably the single best decision I made as a new clinical professor four years ago.  Reflection fosters self-awareness, which fosters a maximization of strengths.  Lawyers work hard, think critically and often receive little praise from clients and judges alike–not to mention opposing counsel.  Reflecting on one’s accomplishments and professional development, in addition to client interactions, shows budding lawyer (our students) that they can do this work and in fact are doing it well on many fronts.  By the same token, the opporutnity for feedback from their professor or other clinical supervisor through submission of journals is a safe and controlled space to reflect on mistakes and engage in contemplation about how to improve skills while a mentor helps them process those often uncomfortable realities.

This methodology of reflection and self-awareness is different in the traditional law school classroom setting than clinics, but it can be done.  Several colleagues have written and presented at conferences on using written reflections and other tools in non-clinical classrooms.  In my thematic teaching paradigm, I use several approaches in my Family Law lecture course, which often holds enrollment of over 50 students:

1. On Day One of class I explain the main theme of the course, which is the public-private tension mentioned above.

2. My “big picture” approach is evident from both my remarks that day in class; my syllabus which describes each class period’s theme; and the casebook, which opens with commentary on that very same public-private tension unique to Family Law.

3. I assign casebook material for Day One, comprised of several United States Supreme Court cases interpreting Due Process liberty interests.  During class I ask students to ponder why a course on Family Law suddenly looks so much like a Constitutional Law course.  Drawing their attention back to the public-private tension theme, I remind the students that Due Process liberty inquiries center around that same public-private tension.

4.  One Day One I dispense the material via lecture and PowerPoint, but clarify that I use the Socratic method from Day Two forward and call on students at random.  The Socratic method promotes self-awareness and reflection in a way no other methodology can offer, when managed successfully.  Each teacher must define success for themselves, but for me it means engaging the student about why they responded as they did, regardless of the accuracy of that response.  Even if the response is flawed in some way, I invite them to thoroughly vet it.  Then I clarify any flaws–with compassion and professional respect.

5. Volunteered answers, and questions, are welcomed in my classroom.  The questions are particularly useful for promoting reflection as well as larger themes, as they often stem from common public misconceptions about Family Law ripe for discussion.

6. Returning back to Day One for a moment, I ask the students something critcal after my introduction of the course themes and my teaching style, but before my lecture on the assigned material.  I invite them to mindfully reflect on whether this course will serve their needs as a learner.  Immediately, they as listeners are cued to reflect what they do need as learners of the law.  With what I hope is humility, I remind them that my brilliant colleague Dara Purvis also teaches Family Law and they can take the course with either prof. Students dropping my course after hearing that speech does not offend or scare me, and I stress that.  Occasionally a student walks out at that point, never to return.  That is utterly fine.

7. Finally, the final exam.  After a semester of thematic teaching and, one can assume at least a sliver of reflective learning, the students are asked at least one question on my exam about the public policy aspect of Family Law. The question is not a fact pattern.  Other parts of my exam utilize those.  But the policy question asks them to consider (and sometimes describe) an area of Family Law and what they learned about it, and opine on the efficacy of that legal framework or approach.  I like to end the semester the way we began, with reflection on the big picture, with consideration of our legal system as social underpinning.  How does the law reflect our values and social norms? Who gets to define those norms?  How much government regulation of private decision-making on personal matters is too much?

What is your signature teaching approach?  I ask my clinic students to reflect on what is their unique style of lawyering.  As their teachers I believe we are well served by reflecting on what is our unique style of teaching. The growth among our academy and our students is symbiotic.  Let us embrace that.

Writing about Teaching Literature

Mary Lynch:

This may be helpful for those of us whose summer plans include scholarship on teaching and learning.
….. And speaking of the fruits of our labor, the blueberries in the farmers markets on the East Coast are really spectacularly delicious right now.
What “fruit” scholarly or organic appeals to you this summer?

Originally posted on Teaching & Learning in Higher Ed.:

"Writing" by Jeffrey James Pacres (CC BY-NC-ND)by Laura L. Runge

The MLA recently released its long-awaited report on Doctoral Study in Modern Languages and Literature. Among its recommendations, the report argues for greater support and value for teacher-training. Although not an early harbinger of change, the report gives a welcome endorsement to strategies that we have seen developing in doctoral programs around the country.Report of the MLA Task Force on Doctoral  Study in Modern Language and Literature I’ve taught a practicum in teaching literature at the University of South Florida since 2004. I’ve also written two teaching guides for Norton and a couple of articles on pedagogy. Whereas in the earlier days I felt something like of a lone voice in the wilderness among my colleagues in English, I’ve watched the scholarship on teaching transform to a diverse and robust field.

There are now many opportunities to share our scholarship on teaching and learning, and there is much to be learned from the variety of classroom experiences in…

View original 946 more words

By Steve Friedland

While attending the Best Law Teachers Conference in Chicago last week I was struck by how much I learned by simply observing terrific law teachers. I saw contrasting styles, from Heather Gerken’s Socratic Method, to Meredith Duncan’s distinctive discussion approach, to Rory Bahadur’s combination method. Actually, all three blended different methods and shared some basic characteristics. It was obvious that each was passionate, dedicated to having their students learn, highly organized and focused on learning outcomes, and had a structure that they intentionally shared with students. Just because they did not hide the ball did not mean they did not have high expectations; students were on notice that they needed to put on their learning hats while in the room. I took notes furiously on my laptop and felt like a student again – until my poor eyesight and creaky hands reminded me that my “youthful student” days were long over.


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