“Situational Excellence” – A Good Concept for Legal Education?

I recently spent a week in close proximity to four of my clinical students. We participated in a high-stakes, out-of-state hearing for one of our clients in the Wisconsin Innocence Project. The trip topped off a summer’s worth of intense preparation that involved distilling a few thousand pages of transcripts and briefing into an hour-long presentation to the court. Prior to the trip the students created charts, briefed cases, wrote potential counter-arguments, and developed a highly effective PowerPoint to assist me in the closing argument.

The week started with a 14-hour drive. Once we arrived at our destination, we jumped right into last-minute preparations. We met with our client and local counsel, organized our materials, and tested the technology that we would use. The day before the hearing, we gathered with other attorneys in a windowless hotel meeting room to coordinate and revise our presentations for the defendants we represented. The students played more than just a logistical role. They helped revise arguments and edit the presentations. They relentlessly checked the record, providing the detail needed to make our presentations persuasive. As the preparation reached into the evening, still in the windowless hotel room, one of the attorneys reminded the students that we were aiming for “situational excellence” as we finalized our preparation.

Those words of wisdom, uttered by a long-time, excellent public defender, struck a chord with the students. After the hearing, on our long drive home, they talked about “situational excellence.” I wanted to know more about why they thought this was such great advice – to aim for situational excellence. My students impressed me with their insight. They confessed that they often become paralyzed by perfection. The phrase “situation excellence” told them that there’s a time when you must move forward even when you don’t feel like you’ve reached perfection.

Concerned that the phrase might lead them to believe that with few resources, situational excellence may mean that poorer clients get less service. They pushed back. Situational excellence, they said, means to be excellent in this moment. “You should be your best self. That means be your best even if the case is pro bono.” Connecting the phrase to a legal claim we often litigate – ineffective assistance of counsel – a student said, “When you don’t have the resources you know your client needs, you must request them. If you don’t get them, you must make your objections clear. That’s situational excellence.”  Another said, “You can’t give up. Each situation gives you a new opportunity to excellently advocate for your client no matter what your circumstances.”

The discussion made me wonder if we are preparing our students for the situations that arise in the typical practice environment. In our clinic, we teach students to be relentless in their pursuit of perfection. We ask them to call the expert from Stanford Medical School. Maybe she’ll talk to us. Maybe she can provide an answer. We slow things down, working through multiple drafts of emails and letters. We workshop our briefs among the class and the experts in the building. We talk through the interview of a crucial witness for weeks before we actually meet. Are we setting them up to feel like failures once they enter the hustle and bustle of practice?

Research shows that our clinical teaching methods are optimal for learning knew information and new skills. By relentlessly pursuing perfection, we expose students to what ideal representation looks like. By slowing the process down and allowing for lots of feedback and reflection, we help students develop judgment. They learn to critique their own work. We provide a scaffold for them as they develop on a pathway to expertise. This is why clinical education is so important. If we pursue perfection when we have time, we can make better decisions about what excellent representation would look like in any given setting.

I’ve learned from my students’ insight. I’ve realized that we often fail to explicitly inform our students of the long path one travels from novice to expert. The public defender whose wisdom they have clung to spent decades practicing excellently. She knows what excellence means in any given situation. She also knew how to synthesize our massive record into a powerful argument in lightning speed compared to the snail’s pace we took to arrive at our argument.

Knowing the difference between learning and practicing law is crucial to our students’ improvement. Students who can apply their learning in a near-practice setting will have an edge when they begin their practice. But could we better prepare our students by introducing them to the concept of situational excellence? We could certainly be more explicit about how they apply their clinical experience to less than ideal settings. If the students practice excellence under ideal circumstances, their best selves will be better prepared to produce excellence under pressure.

Scholarship on Bar Exam Alternatives Needed

This week, our students sat for bar exams across the country.  Many of us may have once again been thinking about the myriad of critiques we have about the current bar exams – critiques that have been published time and again.  Over the years, we hoped the critiques would motivate the National Conference of Bar Examiners [NCBE] to explore and pilot test alternatives.  Thus far, that has not happened.

While there likely are many reasons the NCBE has failed to develop and pilot test alternatives, one oft-heard reason for not changing bar exams is that while the current exams are not perfect, they are the best that can be done.

As Professors Eileen Kaufman, Carol Chomsky and I recently wrote elsewhere – this is simply not true.  We note that for the last ten years, the Law Society of Upper Canada has been administering an open book multiple choice test that covers a much wider range of competencies than is currently tested in the U.S. and that asks questions in context of how lawyers use information when representing clients.  That is just one example of a viable alternative.

As academics, while most of us don’t have the same psychometric background as NCBE employees, we do have the ability to engage in scholarly research and publish what we find.  What are other countries doing?  What licensing methodologies from other professions could we adapt? What are we doing in our own courses that could be adapted to a law licensing process?

There is momentum for change. States such as California have begun to look at the bar exam’s content validity as well as bar exam passing scores.  Professor Deborah Merritt and Dean Nick Allard have both made persuasive arguments as to why bar leaders should convene a  national task force to examine potential bar exam reforms.

The current momentum for change recognizes that existing bar exams have fundamental flaws that should be addressed.  As academics, we can build upon this momentum by researching and writing about alternatives. We can encourage our law review student editors to consider symposium issues focused on bar exam alternatives. We can create pressure for meaningful change by showing that change is possible. Let’s do it.


Law Student Wellness Awareness

As most are aware, the New York Times published an essay on July 15, 2017, entitled, “The Lawyer, the Addict” recounting the writer’s tragic loss of her lawyer-loved one to drug-overdose.  A significant part of the tragedy was that the lawyer successfully hid the addiction for years.  As we consider programming for Fall Semester orientation and beyond, this is a good time to give more consideration to addressing depression, anxiety, substance abuse and addiction among law students. 

In this regard, I strongly encourage downloading and taking a look at the “Substance Abuse & Mental Health Kit for Law Students and Those Who Care About Them”,” put together by the ABA Law Student Division, the ABA Commission on Lawyers Assistance Programs, and the Dave Nee Foundation. The ABA Law Student Division has also created a web site and begun compiling links to resources for law students under Mental Health Resources.

The 2016 Report, published in the Journal of Addiction Medicine referenced in the NY Times, reports on the significant numbers of lawyers affected by depression, substance abuse and addiction as well as the numbers of law students affected.  And, as so many articles and the 2016 Report note, in law students, the driven qualities that propel students to go to law school; law school’s consuming demands; law school anxiety and stress; competition, and the prospective (or lack of prospective) job market, all affect, and perhaps negatively affect, law student mental health.  These issues are all compounded by the stigma attached to “others.”

At law schools, we still deal with the student as a person, a pre-professional.  As Scott Fruehwald noted in a posting on the importance of professional identity training, law school is a prime time of both crisis and potential growth if students are well-guided.  However, as Louis Schulze noted on the Faculty Lounge Blog, “Ask not what you can do for your students, ask what your students can do for themselves,” students have to come by their learning as well as their personal identity ultimately on their own.  Being responsible for one’s own learning, being responsible for one’s well-being, and being responsible for gaining and keeping sobriety are ultimately not things that are externally controlled.

Recognizing there is a problem and that we cannot solve it by mandating compliance, what are some things we can do so that our students are open to and can achieve their own stability and appropriate level of sobriety?   What can we provide that students can themselves use? The ABA Health Kit has some suggestions worth noting here.  For example, it suggests:

1.       Think about the problem; create and have a strategy; make students aware; reduce stigma so students will take make use of the strategies, and follow through. Make the issues and assistance “present.”

2.       Provide and encourage Lawyers Assistance Program access;

3.       Have an on-campus counselor;

4.       Limited self-disclosure. Most Anonymous Meetings begin with, “Hi, I’m (name), and I’m (whatever the concern).  For anyone who has ever been to one of these meetings – and, yes, I have been in celebration – the mere existence of others similarly situated is itself very powerful. 

5.       Provide links and access to resources – many of which can be found in the Health Kit, others of which can be found in Scott’s article, through the ABA or your state bar, through various mental health advocacy  and disability advocacy sites or through any Anonymous site.  There are even NA and AA meeting locator apps.

6.       Learn about and provide guidance for gaining and maintaining a healthy life.

The Health Kit also notes some other things law schools have done or are already doing to promote wellness.  Those include providing access to a mental health professional and then, coordinating with student affairs to create various programs (plural) throughout the year to introduce that person and then create occasions for students to interact with that person such as “let’s talk,” or “how to bounce back,” events. 

Other ideas include Family Fun Day; Wellness Fair or Wellness Day with structured events including speakers from the local LAP, strategies for time management, diets, as well as activities such as yoga, resiliency training, and chair massages.  (I admit to liking this last.)  Some schools, ours included, have had “Puppy Love” opportunities – most recently here as a stress-reliever before the bar exam.  (Hypo-allergenic only)

On the more serious side, some schools have integrated LAP programs or one credit “courses” throughout the curriculum with a different focus each year.  Two possible syllabi are included near the end of the Health Kit, one by Marjoire A. Silver from Touro Law Center, and one prepared by the ABA CLAP.

Law Student mental health, substance abuse and addiction are personal to me.  I cannot tell you the number of students who have passed through my doors over the decades who were and are vulnerable.  What are other schools doing?  Do you have plans? Programs? Access?  Course work you would share?  Other?


Designing Your Life

Summers always present wonderful opportunities to reflect on the past year and make plans for the next.  For me, they are a period of rejuvenation and reassessment.

I find that each summer I spend some time designing my life and thinking about my own professional formation.

This summer, my reading list has included two books that I consider life-changing, The Four Desires by Rod Stryker (referred to me by Jean Koh Peters, Yale Law School) and Designing Your Life by Bill Burnett and Dave Evans (referred by Doni Gewirtzman, NYLS).  While the authors come to the topic from vastly different perspectives, Styker is a yogi and Burnett and Evans teach design thinking at Stanford’s dSchool, the two books contain similar messages and suggest similar practices.  The clear message from both books is about actively creating a life that you design and desire for yourself so that you live a life that is authentic to you.  How simple, yet powerful, that message can be.  Especially for lawyers and law students.

To access the authentic self, both books suggest engaging in the process of listening to our unconscious selves so that we can get in touch with and identify the true purpose of our lives; the things that truly motivate us and bring us joy and happiness.  Once we have access to that information – which we can access through meditation and journaling (Stryker) or recording daily activities and reflection (Burnett and Evans) — the next step is to decode the information and use it to design a new way forward.  The books also recognize and help the reader to identify sources of resistance (both internal and external) and how they may impact your ability to advance in new directions.  Once you have this data, the next step is the process of redesigning your life – using exercises such as mind mapping, mindfulness, letting go of preconceptions, visualization, journaling and reflection.

This process takes time and lots of focus.  Indeed, I see it as a methodology for a life-long process of iteration and life improvement.

Luckily, I was able to do much of the hard work over three days at the beginning of the summer.  When Jean recommended the Stryker book, she also noted that he conducts workshops on the Four Desires.  As fate would have it, I learned that Stryker was going to be at the Himalayan Institute, which is less than a 3-hour drive from my home in Pennsylvania, in early June and that openings remained in the workshop.  So, I was fortunate to enroll in Stryker’s Four Desires Workshop last month.  While it has only been a month, I already see a change in my life. And others notice it too.

It is never too late to redesign your life.  I recommend you start this summer.  If you do, please let me know how it goes for you.

My hope is to be able to share this methodology with my students as well.  Once I have more data on the results in my own life, I plan to share the process with my students.  Wouldn’t it be wonderful for the next generation of law students to graduate with a methodology for designing an authentic life for themselves.  Stay tuned!



Blended Learning for Law Schools

I just returned from an inspiring and thought provoking three days at the Wolters Kluwer-sponsored Leading Edge workshop. The gathering of about 35 thought leaders from legal education – a wonderfully diverse group – was structured as an un-conference, so the participants designed the agenda upon our arrival and all the discussions revolved around topics that the invitees chose and facilitated. The topics ranged from assessment to increasing diversity in the academy, to teaching about leadership and cyberlaw, to disruption of law schools (yes, that was the session I lead).

Among the many recurring themes at the conference was online learning, particularly blended or hybrid learning, also referred to as flipping the classroom. Over the last few years, researchers have increasingly confirmed that students learn best in courses that combine online with face-to-face learning. Here, the Mayo Clinic describes the utility of blended learning in the health sciences field. Similarly, the US Department of Education found many benefits of flipping the classroom in its meta-analysis of online learning. These and other studies talk about the many advantages that derive from blending online and in-class instruction.

In the law school context, I made these videos about flipping the law school classroom and blended learning in legal education, in which I talk about how online learning can free up class time for law students to begin to gain exposure to essential lawyering competencies during each course while still covering the doctrinal material that professors hope to assign during a typical semester. Adding blended elements to your courses can be fun and rewarding. Here are some tips for getting started.

Top Five Things to Consider When Flipping a Law School Course

  1. What topics do you want to flip?

Before you begin, identify the topics that you typically cover for which the flipped classroom model would make the most sense in the course.

  1. You don’t have to produce all of the videos.

Don’t be reluctant to assign video content produced by other professors. Like other teaching and scholarly activities, such as writing an effective article, practice guide or even blog post, the production of effective and engaging video content takes time. As a result, I often assign my students to read law review articles and casebooks prepared by other professors. Assigning videos prepared by other professors is analogous. Indeed, by assigning material prepared by others, our time is freed up to spend on more active teaching activities. Visit legaledweb.com for a collection of videos prepared by leading law faculty.

  1. Begin with planning what will be “flipped in” rather than what will be flipped out.

Plan what you want to do with the additional face-to-face time with students that blended learning will afford. This is the point of having a flipped classroom. For example, consider adding new activities into the classroom (such as interviewing, negotiation or drafting exercises) that hone practical lawyering skills and competencies.

  1. Produce chunked, short video content.

Research shows that effective videos do not exceed 5-8 minutes in length, and some are even shorter. Break up a longer subject matter into a few chunked segments, making sure that each video addresses a discreet legal topic. Remember to make the video engaging and to speak clearly and concisely.

  1. Hold the students responsible for watching the videos.

Start each class with an assumption that the students watched the video. That will create an expectation for the group. Start the class by expanding on the videos lessons and assigning activities/discussions that ask students to use the theories learned from the videos actively through role plays, simulations, small group work or Socratic dialogue.

Best of luck innovating legal education. Let us know, in the comment section below, how it goes for you. What works? What could be improved? What insights can you share with the community?

And if you want to learn more about flipping the classroom and other innovations in teaching pedagogy, visit legaledweb.com


FutureLaw Workshop – Call for Papers

Conference Announcement and Call for Papers
2017 Junior Scholars #FutureLaw Workshop 2.0 at Duquesne

The conference is organized by Seth Oranburg, Assistant Professor, Duquesne University School of Law. Funding is provided in part by the Federalist Society. All papers are selected based on scholarly merit, with an emphasis on scholarly impact, topical relevance, and viewpoint diversity.

September 7-8, 2017

By invitation only

OVERVIEW: The conference aims to foster legal and economic research on “FutureLaw” (as defined below) topics particularly by junior and emerging scholars by bringing together a diverse group of academics early in their career focusing on cutting-edge issues.

TOPICS: The conference organizers encourage the submission of papers about all aspects of FutureLaw, which includes open-data policy, machine learning, computational law, legal informatics, smart contracts, crypto-currency, block-chain technology, big data, algorithmic research, LegalTech, FinTech, MedTech, eCommerce, eGovernment, electronic discovery, computers & the law, teaching innovations, and related subjects. FutureLaw is an inter-disciplinary field with cross-opportunities in crowd science, behavioral economics, computer science, mathematics, statistics, learning theory, and related fields. Papers may be theoretical, archival or experimental in nature. Topics of interest include, but are not limited to:

– Innovation in legal instruments (e.g., new securities, new corporate forms, new litigation procedures, etc.)

– Innovation in legal technology (e.g., new law firm governance, legal automatic, democratizing access to legal services, legal chatbots, etc.)
– Innovation in legal teaching (e.g., new classroom techniques, distance learning studies, experiential learning, transactional clinics, etc.)

Papers regarding the effect of these innovations (e.g., diversity, inclusion, equity, equality, fairness, return on investment, productivity, security, etc.)

DUAL SUBMISSION PROCESS: For the 2017 conference, the FutureLaw Workshop and the Duquesne Law Review (DLR) announce a new, non-exclusive, combined submission process. At your discretion, a paper submitted to the 2017 FutureLaw Workshop 2.0 may also be considered for publication by DLR free of charge. The rules for this dual submission process are as follows:

(1) You must apply online at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20. Submitted papers will be considered for publication by the DLR free of charge. A reply to your submission in acceptance to the Workshop or invitation to publish in the DLR is your option, not your obligation.

(2) If you do not wish to be considered by the DLR while submitting for the FutureLaw Workshop, please indicate this in the comments field provided.

(3) Papers submitted for dual consideration must not already be accepted by another journal.

(4) While under consideration as a dual submission for the 2017 FutureLaw Workshop and invitation by the DLR, a paper may be submitted to another journal (or JAR).

PAPER SUBMISSION PROCEDURE: Please send a PDF version of your working paper, by August 4, 2017 at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20.


The FutureLaw Workshop may reimburse presenters and discussants reasonable travel expenses and accommodations. Please let us know if your academic institution does not provide you with travel and accommodation expenses.

CONFERENCE ATTENDANCE: Attendance is free and by invitation only. Academics interested in receiving an invitation to attend but who do not wish to submit a paper may apply online as “observers” at http://law.duq.edu/events/junior-scholars-futurelaw-workshop-20.


The Wall Remains: Finkelstein’s “Barriers to Entry”

In a recent article in the Journal of Experiential Learning, Jay Gary Finkelstein describes the obstacles he encountered attempting to convince law schools to replicate his transactional course, International Business Negotiations. The article, Barriers to Entry: Putting it Together, School by School, tells a familiar tale: law schools remain resistant to curriculum change, legal academia continues to underperform in skills training, and experiential offerings—though on the rise overall after ABA Standard 303’s increased experiential learning requirement—still lag in the area of transactional training. This is a saga most everyone tracking experiential learning over the last few years is well-acquainted with.

But Finkelstein’s version of the story embodies an element that finds the spotlight less frequently: this delay in growth persists despite the plethora of tried and true experiential course offerings available. It often isn’t a question of availability or capability; it’s a question of resource allocation. In Barriers to Entry, Finkelstein describes how, for the last approximately eight years, he contacted various law schools in an effort to help them replicate his class. The reaction of the first two schools reflects another aspect of the problem: they essentially ignored him. “There was no response whatsoever; it was as if the communications had entered a black hole; . . . there was not even a ‘thank you but not interested’ rejection from either law school.”  In the remainder of his article, Finkelstein describes how, even once he began receiving replies, he encountered a persistent series of difficulties in convincing schools to adopt the course.

In some ways, those difficulties are not surprising. Law schools are often contacted by third parties offering to do or sell or say something. The course adoption process at law schools is often lengthy and fairly described as labyrinthine even among those already dwelling within its walls. And there are often many more adjuncts seeking to teach than there are positions available.

But Finkelstein’s experience, again, is striking: why did a successful practitioner pitching a course already adopted at well-known law schools where it received rave student reviews meet such resistance? Finkelstein’s course did not have a licensing fee. As a transactional course, it was not in an area that most law schools already had a wealth of offerings. Finkelstein’s credentials even passed the litmus test that too many law schools use in considering who can teach there (Finkelstein has a J.D. from Harvard and is a partner at DLA Piper).

Fortunately, the story in Barriers to Entry has a happy ending: the course is now taught at over twenty-five law schools internationally. As its availability continues to expand, Finkelstein has enlisted or trained additional individuals (both adjuncts and full-time faculty) to teach it. He has also co-authored a coursebook for the class. And he even eventually convinced one of the two schools he first contacted (and that ignored him) to adopt the course.

But is this ending just the result of Finkelstein’s persistence? Or also legal academia’s greater acceptance of experiential learning and the ways practitioners can enrich a law school’s curriculum? Hopefully both. Because as Barriers to Entry reminds us, the wall to experiential learning remains, and one of the many ways to scale it is through the joint efforts and open minds of practitioners and law schools working together.

And Professor Finkelstein: feel free to email me sometime—I promise to reply.


Looking for experiential learning resources for your class? Try this list: https://goo.gl/59KlUP

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