TEACHING RESILIENCE AND BEING RESILIENT : Filling Our Tanks This Summer

About a month ago, I had the pleasure of attending the annual AALS clinical conference held  in Chicago.   The conference focused on achieving happiness and resilience at a time of challenge in legal education while exploring methods for becoming “better” clinical teachers.  Clin14BookletWeb

The Keynote opening presentation by Professor Nancy Levit from the University of Missouri-Kansas City School of Law outlined research about happiness,  lawyers and legal careers.   Professor Levit’s  book with Doug Linder, The Happy Lawyer: Making a Good Life in the Law, was published by Oxford University Press in 2010. Their sequel, The Good Lawyer: Seeking Quality in the Practice of Law is now available.  The Levit and Linder research helps answer questions for our students and ourselves about how and why lawyers find a  legal career rewarding.   Much of the research reveals that simple truths about happiness – such as feeling valued or being part of a community – bears repetition.   The presentation was informative and the research can be used in advising our students, supporting our colleagues and caring for ourselves.

After her keynote, panelists Professor Calvin Pang (University of Hawaii, William S. Richardson School of Law)  and Professor Joanna Woolman (William Mitchell College of Law) with moderator American University Professor Brenda Smith presented a few clips from a very realistic “role play” focused on a “devastating” day in court and the responses  of a clinical teacher, clinical student, and non-clinical colleague.    (The film will be available after the conference – I believe at the AALS site – for those who want to use it in their home schools.)  In the film, the law student  faces a surprising negative court ruling and then experiences his client yelling at him outside the courtroom.   In conversation with the clinical professor, the student expresses anger with his client and believes he should just “drop” clinic.  The clinical professor listens to the student and also explores other aspects of the student’s current anger and despair including his having received a number of employment rejections during this same time period.

The film was provocative and engendered good discussion about the role of law professors .  Many of us have experienced with our students or in our own professional lives the coinciding emotional burdens of dealing with difficult emotions in client’s cases and receiving negative news on the home or career front.   Managing and coping with all those emotions and burdens is a never-ending part of professional development and law schools can and should play a significant role in preparing students with appropriate skills, appreciation of professional values and coping tools.

In a final exercise, the entire room of about 500+ created word trees on three questions:

1.  What do you do as a teacher to “fill your tank.?”

2. What do you do to encourage your students to adopt habits to make themselves whole?

3. What are the barriers and obstacles to the first two?

In asking myself these questions and watching the hundreds of others eagerly participate, I reflected on the particular importance of the resilience, holistic, and happiness theme at this moment in time.   Students and recent grads need our positive support.  Institutions need our creative, optimistic energy.   But providing that energy and support can be personally tolling.

Student-centered faculty – and in particular clinical faculty with summer burdens or untenured faculty with heavy writing demands – must  carve out some real off time or vacation in order to be effective in the long term.  Their institutions must support their need for renewal.  Filling  our personal “tanks” with sunsets, summer treats (ice cream for me!), some  relaxing days, renewed commitment to exercise or getting outside, and time vacationing with loved ones helps form the foundation for resilience in the academic year.  We need to do this not only to support our own resilience but to equip ourselves with the experience-based wisdom that will be needed in great quantities in the coming semesters.  In order  to assist our students and our institutions at this precarious time for law schools, we need to nurture our whole selves now.

SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

Quite Moving but Frightening Testimony at AALS Conference

I write from the Hilton Hotel in New York City where the American Association of Law School annual conference has just ended.   The most memorable and riveting session I attended was the ABA panel presentation on proposed revisions to accreditation standards,   I knew full well that this would be an intense session and blogged about the dangers of these proposed revisions earlier in the year  here. .  The proposed revisions will change dramatically what I consider an essential facet of legal education:   the ability to acknowledge, discuss, debate, theorize,and write about  issues that are unpopular.  It will also prevent law faculty from teaching about and working with students representing clients on issues which are unpopular.   I knew this discussion would be intense but I was not prepared for  the stories of our brave peers in the academy which reinforced for me the fundamental importance of academic freedom supported by tenure or security of position.

One professor who self-identified as a female American who is Muslim reported  that she received death threats at work for appearing at a Department of Justice panel on National Security and Muslim issues.   She noted that without tenure and academic freedom, she would be at risk for firing for doing no more than accurately describing the national security legal issues.  She also eloquently explained that as a young, female professor of Muslim religious and cultural identity, she was vulnerable for receiving student pushback and bias for her assuming the position of power and authority over students.  Without academic freedom secured by tenure,  she would fear student bias in evaluations or impressions which could threaten her job security because of her Muslim identity.   A white woman who  taught at a religious school in the deep south,  movingly described her experiences. Without academic freedom supported by tenure, she found that  just raising legitimate legal issues and cases regarding property, same sex marriage, second amendment law, domestic violence or other issues could put her at risk of losing her job.  Had she not been supported by a tenure system which requires “cause” not popularity as measured by teaching evaluations or other factors, her personal and financial incentive would encourage her to avoid  teaching  important legal questions  for fear of back”pushback” .  Professor Terry Smith of Depaul College of Law presented remarks on behalf of the minority law professors section whose members attended in great numbers.  I share with you  his statement here (ABA Statement 1 4 13 ) Another member of the minority law professors section, Professor Anthony Farley,  cautioned that these issues are not “speculative” and spoke about ongoing attacks on academic  freedom, faculty governance, tenure and security of position at a particular school.  Other faculty members discussed how its hard to teach constitutional law in this country without mentioning race but that faculty who do not have security of position will find it difficult because when race is mentioned in a classroom, faculty inevitably suffer in teaching evaluations by students who are uncomfortable talking about race.

Professor Kate Kruse, past president of the Clinical Legal Education Section  noted that for many clinicians academic freedom has only been made real by the current ABA  standard 405 (c) and the  proposed revisions make no attempt to provide a “safe harbor” for the majority of clinicians and legal writing professors who also need to enjoy academic freedom.  There was some discussion by panelists and audience members about an earlier proposal which would have eliminated the hierarchical status types among faculty and questions about why that proposal was never presented for notice and comment.  See earlier blog discussion of the proposals. Past President of the AALS Clinical Section and Fordham Law’s Professor Elizabeth Cooper noted how tenured clinicians are  often asked by untenured  clinical colleagues to make points at public meetings that they are unable to make for fear of impact on their continued employment.

Members of the panel thanked those who testified for good reminders about the negative and practical consequences of these revisions. The Chair of the Council on Legal Education, attended and wanted the audience members to know that he had listened carefully to the concerns.  Past President of the AALS, Professor Leo Martinez and panel members urged  all interested parties to submit written  comments about this controversial proposed revisions on the ABA website found here.

Social Media and Law Schools (an introduction)

Want an introduction to social media?  Earlier this week, my colleague, Andrew Brandt, and I held a faculty workshop for our colleagues at Villanova Law about using social media to build our community and showcase our ideas. Here is a link to the powerpoint we created for the talk (although did not use). http://www.slideshare.net/MichelePistone

Some of our colleagues asked me to follow up on how to use hashtags (#) and handles (@) on Twitter. I found this great one-pager, http://bit.ly/1bsh4oh, on using Twitter that may be of interest to you all.

If you are on Twitter, please share your handles with this community so we can follow you. And if you want to follow me, I am @profpistone.

3 Problems with Legal Education

UC Hastings Dean Frank Wu has an interesting article in Above the Law about Law Schools.  He mentions three problems with legal education: (1) a glut of lawyers in today’s market; (2) high cost; (3) insufficient training in practical skills.

Do you agree?  Would you add anything to the list?

Law School Applicants: What Are The Jobs Students Hire Law School To Do?

Following on some recent discussions about disruption and legal education, I’d like to solicit help from the community in determining what are the “jobs to be done” in legal education?

HBS Professor Clay Christensen tells us that a central place to begin an analysis of disruptive innovation is with the question: What jobs do our customers want us to do for them? In other words, what needs arise in our customers lives that they look to us to meet/satisfy?  Here is a relevant article: http://www.forbes.com/sites/stephenwunker/2012/02/07/six-steps-to-put-christensens-jobs-to-be-done-theory-into-practice/

I think that once the legal academy gets a good handle on this question, it may help us figure out how to reform legal education in light of the recent dramatic changes in market conditions.

I am still forming my ideas on this, so am looking to start a discussion and for feedback.  The more I think about it, we actually may have to address two questions, one focused on law school applicants and the second on law school students.  Or maybe the law school student questions are a sub-category of the overarching law school applicant questions.  That still needs to be fleshed out.

Here is my draft list of jobs that applicants to law school need to be done (in no special order and some may not apply to every student):

  • I need something respectable to do after college
  • I need to feel good about myself (to feel smart, special, elite)
  • I need a place where I can enjoy spending time with my friends/people who share the same ideas/talents/perspectives as I do
  • I need to become qualified to sit for a bar exam/ to become an entry level lawyer
  • I need to feel part of a larger community/network
  • I need to figure out how to use my gifts/talents for a fulfilling career (I am not a math, science type, so medical school, computer science, engineering, are not for me)
  • I need to find a career that will enable the lifestyle I anticipate for myself and my family

Each of the above needs has sub-needs.  For example: “I need to become qualified for the bar/ to become an entry level lawyer” has lots of sub-needs, such as:

  • I need to learn how to think like a lawyer
  • I need to learn fundamental legal concepts and theories
  • I need to learn the laws and legal theories that are relevant to my field of interest
  • I need to begin for form a professional identity
  • I need to learn the practical skills and professional values of lawyering
  • I need to learn how to conduct legal research
  • I need to learn how to write like a lawyer . . .
  • I need to find a job in my field
  • I need to begin to meet lawyers in the community in which I will work

I realize that many students may not independently identify these are needs.  What does that mean for the “jobs to be done” analysis?  Is education different in the sense that professional students may not always know their needs?  I’d also like guidance on how that is handled in the analysis.

Thanks in advance for any guidance, suggestions, comments, corrections, etc.  I hope that this sparks a fruitful discussion and look forward to hearing your feedback.

A Rise in Alternative Careers Is Changing Legal Education

By Jill Backer Contact All Articles
New York Law Journal
October 28, 2013

In April of this year, Kaplan Test Prep did a survey of 200 pre-law students. Fifty percent of those students stated that they do not intend to use their future law degree in a traditional legal field. If this statistic extrapolates out to the larger law student population, we have a generation of law students of which only half will ever be practicing lawyers. So if half of law students do not intend on ever practicing law in a traditional way at a traditional firm—what is their intention? The answer is as varied and individualized as our law student population. The answer is also forcing a revitalization of legal education and at no time has legal education ever been accused of changing too quickly.

I often hear the term “alternative legal careers” being thrown around but I am not sure that this has ever been readily defined. Does it mean people who have not passed the bar? Or those in compliance positions, entry-level solo practitioners, or even legal educators? Or those who don’t work at a law firm? The answer to these questions and other questions is yes.

There is a lot of chatter about the definition and assessment of the jobs law students obtain after graduation. Back in 2011, the ABA, in conjunction with NALP, came up with the category of “J.D. advantage” to describe jobs that specifically do not require bar passage but do utilize skills learned in law school. The employers might have preferred candidates with a J.D. (or even required a J.D.), and the job is one in which the J.D. provided a demonstrable advantage to obtaining and/or performing the job. Interest in these jobs skyrocketed as the market fell, with more and more students seeking the J.D.-preferred positions when there were many less traditional positions available. In fact, in 2011, one in every seven jobs taken by new law graduates fell into the J.D. advantage category. (NALP Bulletin, May 2013).

In my opinion, the category and even the term “J.D. advantage” is a bunch of rubbish. Graduates in J.D. advantage jobs are sometimes every bit of lawyers as their brethren at firms and other traditional jobs. Today, lots of associate work and especially first-year associate work can rarely be achieved only by a barred attorney. I believe the legal community and its governing body the ABA are finally just coming to the recognition of what we already know—the J.D. is an agile and flexible tool that can be utilized in many forums.

Let’s face it, the opportunities on the traditional path for new law graduates are shrinking. Therefore, all professional opportunities can and should be defined under “working” and not put under some other nomenclature of J.D. advantage. There are few professional pursuits that would not value the analytical thinking and knowledge of the law and ethics that law school offers. This new category describing any deviation from the traditional path is not required and seems to paint in broad strokes a picture of these jobs as “lesser.” Jobs outside law firm associate positions are in no way less, and in some cases can offer much more.

Here in Brooklyn, there is a hub of a new technology age guided by entrepreneurial spirit and innovation. If a new graduate were to join a start-up business at a local incubator, is that a J.D.-preferred job? After all, while the graduate may not be doing legal work day-to-day, you can be sure that their legal education will be of huge use and influence in the new venture. In fact, you can bet that contracts and other issues involving the law would find their way to the law graduate’s desk rather than another employee. How do we say this is not a law job but a J.D. advantage, or perhaps because the employer did not specify—not even J.D. advantage.

Compliance is another area where the J.D. advantage term is overused. As recently as 10 years ago compliance positions were considered quasi-legal jobs. However, as regulation became more intricate, more and more J.D.s were hired into these roles at all levels. Today, most new hires in the compliance world are J.D.s. In fact, this is a huge and lucrative area of growth for the law profession. However, under the ABA rules, these are J.D. advantage jobs rather than legal jobs.

So here is what we know—there are fewer jobs in traditional legal roles for entry-level attorneys. New graduates are seeking out different opportunities due to fewer traditional positions and a real desire to practice/work in non-traditional forums. The ABA has decided to define any job without a traditional title—associate, staff attorney, assistant D.A., etc.—as something other than a lawyer. So where do we go from here? We need to change legal education and the ABA to fit the new reality.

Law schools have already begun a huge era of revitalization of legal education—some might say an overhaul. Some of these changes are meant to streamline legal education, others to provide more practical training. However, there is another factor that is changing law school: teaching to and preparing the ever-growing population of graduates that do not wish to practice in a traditional forum. Brooklyn Law School teaches a business boot camp and has a clinic that incubates new businesses in all facets, not just legal. There are other law schools that have language classes and compliance courses that are not rooted in the law.

These types of endeavors will help entering law students navigate the business world while utilizing their legal education. This string of classes shows a new multidisciplinary approach in legal education. The more well-rounded student is coveted by traditional and alternative employers alike. The old yard-stick used to measure future success was academic prowess. That is slowly changing as employers of all ilks realize that they need to incorporate softer skills and business skills as well as legal skills to keep their organizations afloat. Being a knowledgeable and ethical attorney is no longer enough to satisfy today’s legal market.

We are facing a turning point in the legal market. Law students are not focused on the same goals as a generation ago, as evidenced by the Kaplan survey cited at the beginning of this article. They are seeking out a new type of legal career that is not rooted in the traditional ways and definitions of law practice. The institutions of the legal market need to accept and understand that one way of using a law degree is no less than another. Law schools have to prepare these students as well as they do those engaged in the more traditional practices. Thankfully, law schools seem to be rising to that challenge.

Jill Backer is associate director for employer relations at Brooklyn Law School.

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