TEACHING LAW STUDENTS TO HAVE A GOOD “BENCH-SIDE” MANNER

Written by Albany Law School Professor of Law Melissa Breger 

My colleagues Professors Gina Calabrese and Theresa Hughes and I wrote a law review article almost 15 years ago that still holds true today. The South Carolina Law Review 2004 article was entitled Teaching Professionalism in Context:  Insights from Students, Clients, Adversaries and Judges.

In the article’s introduction, we acknowledge, “professionalism holds various meanings and the contextual nature of professionalism requires a definitional reshaping as circumstances and players change.  In writing the piece, we note that one of our goals is ascertaining a myriad of ways to teach law students about the concept of professionalism.  At the time, we were all three clinical law professors drawing from our years of teaching in a clinical setting, as well as our earlier years of law practice in New York City.

As one of many examples, we assert that in the same way patients respond to a physician’s bedside manner, lawyers and law students should work on what we termed their “bench-side” manner.  We drew our inspiration from a 1997 study published in the Journal of the American Medical Association (JAMA) and written by Dr. Wendy Levinson et al. – which studied scores of doctors and their patients and tracked which doctors had never been sued for malpractice.  In addressing Levinson et al.’s work, we noted:  

Physicians who had never been subject to malpractice litigation were found to have engaged in significantly longer visits with their patients. Patients and families medical treatment resulted in a negative outcome were more likely to sue their doctor if they felt the physician was not caring and compassionate. Although the purpose of this study was primarily to guide malpractice risk prevention, it also serves as a tool for educating the physician by providing an apparatus for producing greater patient satisfaction. The Levinson Study identified the specific and teachable communication behaviors associated with fewer malpractice claims, including facilitating comments, using emotional tone, interest in patient opinions, and utilizing humor, warmth, and friendliness. The physician’s bedside manner is analogous to what we label the lawyer’s benchside manner.”

While we caution against borrowing the medical analogy wholesale, we note that there are certainly parallels that could provide useful in a legal education setting.  Law students should be regularly assessing communication skills and client expectations when representing clients, particularly those clients who are in crisis.  

As we approach that time in the summer, when we start to think about fall and teaching aspiring lawyers for a new semester, we should keep in mind the thought that lawyering reaches beyond just knowing the law.

You can read the article here 

Breger, Melissa L. and Calabrese, Gina M. and Hughes, Theresa A., Teaching Professionalism in Context: Insights from Students, Clients, Adversaries and Judges. South Carolina Law Review, Vol. 55, pp. 303-347, January 2004. Available at SSRN: https://ssrn.com/abstract=566061

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What Do We Remember about our Teachers Decades Later?

This coming academic year will be my 20th in law school teaching. Truth be told, I don’t really need a milestone in my career to grow contemplative and introspective, as I am wont to do so under far more mundane circumstances anyhow, but this milestone is definitely doing the trick.

The grandest question that I might ask myself is what sort of difference I have made in the lives and careers of the students—well over one thousand, I expect—that I have taught or worked with since I joined the legal writing faculty at the University at Buffalo in 1999. (In 2002, I moved to the University of Pittsburgh School of Law and am still on the faculty there.) That is a rather abstract query, bordering on the metaphysical, I suppose. A related but more concrete question that I have actually been pondering is this: Decades after someone has been my student, what will he or she remember about me or my teaching? Something, I hope! And something positive, I hope too! Is there a particular thing I said, lesson I taught, teaching technique I used, kind gesture I made, or even joke I told that will stick with them, and maybe have a positive impact, even decades later?

Thinking back to my years in college and law school, I can easily identify the most  impactful specific thing that one of my professors did. I can even remember the date—September 26, 1983—as it was my very first day of classes as a freshman at the University of Washington. The class was Political Science 101, and the professor was Reza Sheikholeslami.

After I and hundreds of my fellow undergraduate students (mostly freshmen) settled into our seats in the lecture hall, Professor Sheikholeslami, sharply dressed and looking the part, strode confidently to the lectern. He scanned the crowd of young faces. Then came his first words: “Would everyone please stand up.” I hadn’t the slightest idea why we needed to stand up, and I doubt that any of the other students did either. But, promptly and without any hesitation, we all complied. He paused and again briefly scanned the crowd. “Alright,” he said, “please go ahead and sit down.”

After we settled back into our seats and the lecture hall again grew quiet, Professor Sheikholeslami explained, “This is Political Science 101, and the goal of this course is to teach you why you just stood up and then sat down.” Being an impressionable 18-year-old, I was mesmerized.

Of course, standing up and then sitting down in compliance with a professor’s instruction does not begin to reach the level of gravity of what happened in the various societies and cultures that we ultimately studied in the course. Think Nazi Germany, for example. But the metaphor Professor Sheikholeslami delivered with his opening words was ever so powerful, and the course largely lived up to it.

Wherever I see demagoguery or other anti-democratic forces rearing their ugly heads, and people are blindly following an authority to their own detriment and the detriment of others, I think back to Poly Sci 101. (I’ll refrain from further comment on the current political climate in this country.) Moreover, in various contexts in the law school classroom, I have drawn from the simple but crucial lessons of that first class with Professor Sheikholeslami. Sometimes, in my Legislation & Regulation course, the substantive lesson about obedience to authority underlies a thread of classroom discussion. More often, regardless of the course, the pedagogical lesson—try to leave a lasting positive impression with one’s students—drives me to think more creatively about how to approach a class topic.

Among the numerous professors that I had across four years of undergraduate study and three years of law study, off the top of my head I could probably name one-third of them (a higher percentage from law school than from undergraduate, I expect).  And among those whom I can remember off the top of my head, only a handful of them sit prominently in my memory—because of how talented they were as teachers, how funny they were in the classroom, how helpful and supportive they were in one-on-one work on a research project, etc. But only one remains prominent in my memory for one particular thing that he did in the classroom: Professor Sheikholeslami.

A few years after I benefited from his creative and thoughtful teaching, Sheikholeslami became the Masoumeh and Fereydoon Soudavar Professor of Persian Studies at the University of Oxford. I was saddened to learn recently that he died earlier this year at the age of 76. I regret that I never succeeded in reaching him to tell him of the positive impact that he had on me—as a person and as a teacher.

To be sure, there are many ways to define and measure good teaching. Now that I will soon begin my third decade in legal education, what I often come back to when I ponder my own qualities as a teacher is this: What do I say or do as a professor that will stick in a student’s memory and still carry some positive influence—no matter how concrete or abstract—decades later? A fond memory of any kind would be great. A memory on the level of my memory of Reza Sheikholeslami in Poly Sci 101 would be a wonderful bonus.

Now More Than Ever: The World Needs More Lawyers

Sometimes, as academics, some of us wonder whether guiding and facilitating the growth and education of lawyers is positive for society. My colleague Ray’s Tedx talk directly addresses the necessity for good, ethical, passionate, reasonable, and humane lawyers.

the Future of Change

In a recent op-ed piece in the New York Times, Big Law partners Brad S. Karp and Gary M. Wingens highlight the work of a broad coalition of private lawyers that is working in collaboration with public interest lawyers to help reunite immigrant families separated at the border.  In this area and many others, lawyers are stepping up to the challenge an Executive Branch eager to undermine the rule of law and a Congress unwilling to preserve it.  These times call for conscientious individuals who will work towards greater social justice and bring creativity and passion to efforts to promote desperately needed social change.  I discuss what types of lawyers we need to help bring about this social change in a recent TEDx talk I gave at Union College.  Please take a few moments, view the talk here, share it with anyone even remotely considering going to law school…

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TEACHING TO THE SMART PHONE (iGen) GENERATION

Written by Patricia Baia, PhD, Albany Law School’s Director of Online Learning and Instructional Technology

Teaching to the iGen (iGeneration, Plurals or Generation Z, born between 1995-2012, the generation after Millennials/GenerationY) is upon us and the rapid growth in mobile technologies has caused their understanding of the lines between academic, professional, and personal uses to be blurred. Legal educators interested in engaging this generation and increasing their learning can spend some time reflecting on their characteristics and experimenting with new teaching tools outlined below.

The iGen cohort are characteristically known for their short attention span and anti-social behaviors. This generation never knew a day without a smart phone or tablet, choose Snapchat over Facebook, think email is old technology, might someday be diagnosed with a gaming disorder, and spend more time on digital devices than with humans. iGens may not know how to write in cursive; were never taught with a chalkboard; never used a typewriter, calculator, or a wall phone; or took a test using a bubble sheet and # 2 pencil. They have always voted by electronic ballot, will never be able to celebrate a birth of a child in a hospital with a smoke, and may never know the time and effort put into making a mixed tape. Yes, I did make many mixed tapes! I am Generation X (born between 1965 and 1980, sometimes listed as 1965-1979); that’s what we did.

It is interesting to think about how technology has changed the lives of this cohort. Particularly, what is the impact of constant technological interruptions on this group’s concentration and performance? (Rosen, 2010) What will this mean for higher education, teaching and learning, and engagement? The 2018 Horizon Report Preview is a great resource summarizing the upcoming trends, challenges, and developments in educational technology.

To reach the iGeneration, it is good practice to incorporate Multimodal Teaching and Active Learning (Jewitt, 2006) approaches in both traditional and online courses. Multimodal Teaching gives students the opportunity to learn material through many different (and a combination of) sensory modalities. These can occur in a thoughtful way throughout a course, in an individual lesson, or within an assignment. This may be attractive to the iGens and a way to leverage their understanding of content. Active Learning can be simply defined as students “doing”; involving students directly in learning rather than passively receiving. This technique may help the iGens to concentrate and focus in. Together, the combination of these two pedagogies may help target different learning styles and reach this smart phone generation in a way they are familiar with. What would also be cool, is if you could reach them through their digital devices. Faculty can try various tools to increase understanding, engage a large classroom, create a more active/engaging lesson for a difficult topic, incorporate formative assessments, check understanding, etc. I have a large bag of ideas and strategies I use to teach and share with Albany Law faculty during the instructional design process (National Education Association has a great resource for this). One product that recently has been helpful (Yes, I am gifting you a practical resource. You’re welcome!) is called NearPod. Faculty can import pdfs, images, and PowerPoints into NearPod then add interactive features such as polling, quizzes, open ended questions, and 3D objects. Teachers use the interactive NearPod live in class and then (ok, this is the cool part) students can synchronize it with their mobile device[s] (i.e. laptop, tablet, iPhone, etc.) and participate. This is a fairly inexpensive tool (Check out: here for pricing structure). There is even a VR (Virtual Reality) component!! Now I am excited!! Are you? Check out here and here to learn more. There are certainly many other solutions that can do the same thing, or that you may already be using, but I think the simplicity of this product (for both the professor and student) is a big pro. Start off with the free (silver) version and go from there. A con (since I do not have anything to do with this company, I must also give you the naysayer view), the pre-created, ready- to-teach lessons may not be applicable to legal education.

So keep engaging students and think about the next generation coming in. The iGens seem to be this socially and technology connected group of students, with a wide thirst for input. I can’t help but think of Johnny #5, the robot (yes, I am talking about the movie Short Circuit), “…input, need more input.” We can use multimodal teaching and active learning techniques in our classrooms to give them the “input”. If you have not done so already, start planning for this generation, they are coming to your classroom soon.

References:

Considering Social Value Orientation as Part of Developing Professional Identity

So many events recently have made me think about perspective – the point from which people view the world, and that perspective’s import.  Perspective in the public is antipodal in far too many ways. Yet, to me, it seems obvious that lawyers must have as part of their professional identity – character and qualities that distinguish lawyers as professionals –  a more open-minded world view because of their responsibility to the legal system. Clearly, that professional identity needs fostering. Yes, developing that professional identity while a law student, maybe even checking it later as a lawyer, is probably more challenging today than ever. As at least one author points out[i] and a quick look at the news shows, professionalism of lawyers is not at its best – from lack of civility to over-contentiousness and a willingness to distort facts to win at all costs.  The risks when lawyers lack or lose sight of a bigger picture remind me of Thomas Hobbes’s question about how society can exist at all when everyone is driven by self-interest or self-focus.[ii]  Those concerns are at least as troubling today for law schools and their current and future students especially where law schools are viewed more as businesses, and students come in bargaining not so much for opportunities in an educational program or to work with a gifted scholar or teacher, but to demand more money to attend a school.[iii]  This apparent focus on self-interest (and I mean the statement as an observation, not a judgment here) when juxtaposed against a lawyer’s broader professional purpose, inevitably creates a kind of social dilemma[iv] for students if not for lawyers. Now is surely a time when more is needed from law schools to help students cultivate perspective given their future role in the legal system.

Historically, similar concern about the role of lawyers have been raised. “The law is the witness and external deposit of our moral life,” wrote Oliver Wendell Holmes wrote in 1897;[v] which was in part to say that positions advocated and law that results reflect who we are as a civilization and that as lawyers, we bear responsibility for more than our own interests or even our client’s results.  In this context, after noting how a lawyer’s training is principally in logic and judicial decisions written in the “language of logic,” Holmes wrote, “Behind the logical form lies a judgment as to the relative worth and importance of competing [] grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.”[vi] Then, to encourage education toward that judgment beyond “textbooks and the case system, and all the machinery with which a student comes most immediately in contact,” Holmes wrote, “I cannot but believe that if the training of lawyers led them habitually to consider more definitively and explicitly the social advantages on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they are taking sides upon debatable and often burning questions.”[vii] In other words, Holmes considered legal education the place to develop a perspective that also looks to social consequences more broadly and, as part of professional responsibility, to consider and weigh the impact.

Justice Cardozo similarly wrote of the legal profession itself, “Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them.”[viii]  The Model Rules of Professional Responsibility Preamble in turn, reads, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”  And, the ABA requires law schools to establish goals for student competency in not only substantive and procedural law, analysis, research, communications, but also ethical practice skills to fulfill responsibilities to clients and the legal system, as well as to establish goals in “other professional skills needed for competent and ethical participation as a member of the legal profession[ix].”  By setting such standards, including cultivating diversity, the legal profession, through the American Bar Association and the law schools it accredits, has provided a professional standard that requires lawyers, to be aware of, consider, and weigh broader social contexts and values.

Set against history, the standards’ language allows the inference then that competent and ethical membership in the profession – professional identity – is “fair personal character” and something in addition to “ethics” – the minimum standard of conduct and professionalism or civility[x].  Professional identity needs to include the internalized ability and willingness to both be aware of one’s own perspective and its effect as well as to consider and assign value to societal consequences.[xi] This combination of private and professional character would be in line with that suggested by Holmes and Cardozo. A lawyer’s habitual awareness of perspective and its effect, followed by intentional decision-making coupled with an attitude of respect toward others and the legal system seem a good starting point as components of professional identity. [xii]

One tool among several[xiii] to help students appreciate perspectives on the road to professional identity is social value orientation. Social value orientation is a construct derived from values research that measures perspective or motivations that influence actor behavior in relation to other actors when the outcomes and resource allocation[xiv] of their interaction are interdependent – a psychological categorization of perspectives that may underly say, use of the Risk-Utility balancing test, for example.  Within the social valuation orientation (SVO) framework, there are several categories of orientations including individualistic (pro-self); cooperative (prosocial); competitive (also pro-self); altruistic; self-sacrifice; equalitarian, and nihilism.[xv] One author provides the following overview of several main orientations.[xvi]

  1. Generosity:
    • Enhancement of Outcomes for Other
  2. Pro-social Orientation:
    • Enhancement of Joint Outcomes (Cooperation), and
    • Enhancement of Equality of Outcomes (Egalitarianism)
  3. Individualism:
    • Enhancement of Outcomes for Self
  4. Competition:
    • Enhancement of Relative Outcomes in Favor of Self
  5. Aggression:
    • Reduction of Outcomes for Other

The middle three orientations are most common, and discussion here is limited to those.[xvii]

Briefly, then, for this purpose, social value orientation can be viewed in two broad categories: pro-self and pro-social, [xviii] and within each of those two broad categories, researchers have paired traits:  cooperative (pro-social); individualistic (pro-self), and competitive (pro-self).[xix]  For anyone who has taught negotiations starting somewhere in the last century (!), these categories sound familiar as negotiation perspectives (competitive-cooperative; adversarial-problem solving).  Generally speaking, most people’s orientation ranges, and some studies indicate no one is fully altruistic or cooperative, for example. Researchers have conducted extensive measurements of social value orientation and preferred outcomes over decades using a variety of measures.  One such relatively straight forward personal assessment tool includes a set of questions where the participant selects from three options that allocate points between self and others. Different “incentives” may be included.  For example, participants may be told that the more points they accumulate, the better for them and that the same is true for the “other.”  They may be told that the greater the difference in point spread, the better.  The measurement tool might look like this[xx]:

For each of the nine choice situations below, circle A, B or C, depending on which column you prefer most. Please proceed in the order the choices appear. (only three choice situations are given here.)

  A B C
You Get 480 540 480
Other Gets 80 280 480

 

  A B C
You Get 560 500 500
Other Gets 300 500 100

 

  A B C
You Get 520 520 580
Other Gets 520 120 320

After nine such choice situations, the participant tallies up points – one per choice situation and then compare with the chart above.  Outcomes where six or more of the nine choices result in a point difference between self and other that most favors self is considered a “competitive” preference. (pro-self) Outcomes where six or more choices result in the most points or highest point outcome for self, represent an individualist preference.  (pro-self) Finally, outcomes where six or more choices result in equal distribution of points represent the cooperative or prosocial preference. Using a tool such as this, students, then, could be introduced to their own social value orientation by self-assessment. Of course, social value orientation varies by person and can vary by situation, so the object here is for students to become conscious of and pay attention to these perspectives. Notice, too, that social value orientation is not meant to address directly moral, religious, or other specific values. Social value orientation is meant to measure self-versus-other orientation as a base line. This base line can then be used to help students to see such orientations at work in the law and world and to begin their own professional identity development.

Social value orientation study is not new; it has been widespread for over forty years, though primarily in other social sciences. Social value orientation has been the subject of extensive empirical research in different settings ranging from public games to negotiations.[xxi] Research has also been conducted on how detection of another’s SVO can influence one’s own cooperation-competition behavior which for lawyers suggests a potential for losing oneself.[xxii]  On one extreme, for example, one who is highly competitive – perhaps considered aggressive, when confronted with what was perceived as the lack of another’s cooperation, responded with even greater competition.  The SVO categories are not nearly as rigid as they appear, and, like most things in social science, are open to interpretation. For example, zealously advancing a client’s agenda may be viewed as pro-self if the agenda is shared and part of the purpose is to earn the fee or if client stands in for the “self.” On the other hand, such representation may be considered prosocial because it is done for the other – the other being the client. This layer of assessment made be done even before considerating whether the result of representation will be prosocial or pro-self.  The study of SVO opens a door using shared language to examining perspective as a precursor to fostering further professional identity education.

At least one author who is a law professor[xxiii], Rebecca Hollander-Blumoff, has recently written in depth on social value orientation and the law from the perspective of connecting social value orientation to doctrine in corporate law, contract law, and family law.[xxiv] One of the several great take-aways from that article is the idea that social value orientation can be used as a discussion tool in substantive law courses to encourage students to consider context in understanding the development of law and to assess their own perspective and choices using a shared framework.  Social value orientation awareness and examination can happen in all classes and have the potential to broaden student’s minds to that bigger picture needed to be active members in our profession.  Such examination could lead students to be more conscious of their and others’ preferences and perhaps to re-examine choices in that light.  This awareness and re-examination are part of professional growth.  And, at some point, our integrity may require us all to re-check our social value orientation.

With more law school applicants coming to law school from business and other narrowly-focused specialty degrees and without a broad background in liberal arts or the humanities, we may be the last opportunity for students to be exposed to the kind of self and other examination needed for students to look out, rather than in. Our students then may be in a better position to more consciously develop qualities that prompt them to recognize their and others’ “unconscious [personal] judgment” and then use professional judgment considering broader societal impacts to have that “fair personal and professional character” necessary to fulfill our profession’s purposes.

At any rate, simply considering whether a given decision is pro-self or prosocial is an interesting exercise and worth taking a moment this summer to try[xxv].

[i] Debra Moss Curtis, “’No Shots, No School, No Kidding’: The Legal Profession Needs a Vaccine to Ensure Professionalism,” 28 U. Fla. J.L. & Pub. Pol’y 1, 4 (2017).
[ii] Leviathan (1651)
[iii] I have not lost sight of student debt and its consequences. I also recognize there has been an uptick in law school applications since 2016 and hope that uptick is a sign of interest in participating in our legal system as a social institution more than as a means of making money – especially because until this year, students have had substantial debt at the same time few law firms had given substantial raises.
[iv] A social dilemma is a situation in which the interests of the collective and its individual members clash. In these situations, individuals typically are tempted to take actions that favor (sometimes even maximize) their short-term egocentric interests. However, if all group members adopt such behaviors, the group suffers since all its members are worse off than they could be by endorsing alternative prosocial actions that favor (sometimes even maximize) the collective interest.  Study of social value orientation can make these choices and consequences apparent.
[v] Oliver Wendell Homles Jr., “The Path of the Law,” 10 Harv. L. Rev. 457 ___ (1897).
[vi] Id. at ___
[vii] Id. at ____
[viii] Matter of Rouss, 221 N.Y. 81, 84 (1917) (citing Selling v. Radford, 243 U.S. 46, 47 (1917).
[ix] ABA Standards 301a and 302 a-d.
[x] At least two authors have suggested that law schools consider a person’s values (not in the sense of left or right), but in the sense of ability to integrate standards of norms and conduct beyond those merely required by ethics rules.  Marjorie Shultz & Sheldon Zedeck, “Predicting Lawyer Effectiveness:  Broadening the Basis for Law School Admissions Decisions,” 36 Law & Soc. Inquiry 620 (2011).
[xi] Model Rule of Professional Responsibility 202 – Counselor states: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Although, the comment indicates a lawyer is not expected to give such advice unless asked by a client – an expectation that may warrant re-examination.
[xii]Early literature has touched on this combination when referring to cognitive bias and game theory, but social value orientation measures a more complex combination of factors.
[xiii] Just a few other examples include: helping students understand their intrinsic value system through mindfulness. Jan L. Jacobowitz, “Cultivating Professional Identity & Creating Community:  A Tale of Two Innovations”, 36 U. Ark. L. Rev. 319 (2014); finding happiness or personal value in being a lawyer, Steven Keeva, Transforming Practices – Finding Joy and Satisfaction in the Legal Life (2002); Lawrence S. Krrieger & Kennon M. Sheldon, “What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success,” 83 Geo. Wash. L. Rev. 554 (2015); and habituating a commitment to purpose and professional development, several articles from the Georgia Symposium on Ethics and Professionalism in 68 Mercer L. Rev. 583 (2017), including Timothy W. Floyd & Kendall L. Kerew, “Making the Path from Law Student to Lawyer:  Using Field Placement Courses to Facilitate the Deliberate Exploration of Professional Identity and Purpose,” 68 Mercer L. Rev. 767 (2017) and Neil Hamilton, “Off-the-Shelf Formative Assessments to Help Each Student Develop Toward a Professional Formation/Ethical Professional Identity Learning Outcome of an Internalized Commitment to the Student’s Own Professional Development,” 68 Mercer L. Rev. 687 (2017)(with some great ideas for lessons).
[xiv] Preference for resource allocation and value assigned to potential outcomes of that distribution is the main focus of social value orientation study.  Resources are broadly defined and can include economic resources, but also such things as access to legal process, and perhaps the legal process itself.  The studies focus on outcomes – not on a strategy for allocation. Although, understanding social value orientation and the growing research on how the interplay between the parties prompts cooperative and competitive behavior in the other may provide a basis for strategy or to alter or adapt preferences. The studies do not, however, focus on whether one’s religion, or custom or personal morality are somehow preferable, nor does it directly measure orientation to those types of values.
[xv] Wing Tung Au and Jessica Y.Y. Kwong, “Measurements and Effects of Social-Value Orientation in Social Dilemas,” 71, Contemporary Research on Social Dilemmas (Suleiman et al eds 2004); Paul A.M. van Lange, “From Generosity to Aggression, Five Interpersonal Orientations Relevant to Social Dilemmas,” 3-9 Contemporary Research on Social Dilemmas (Suleiman et al eds 2004).
[xvi] Paul A.M. van Lange, “From Generosity to Aggression, Five Interpersonal Orientations Relevant to Social Dilemas,” at 9.
[xvii] Aggression – tendency to purposefully minimize outcomes for the other.
[xviii] Au & Kwong, at 71.
[xix] Id.
[xx]See, e.g., Ryan O. Murphy et al “Measuring Social Value Orientation,” 6 Judgment and Decision Making 771-781 (2011).
[xxi] Research in social value orientation considers many permutations and situations – integration of the orientations, consequences when competing orientations intersect, underlying relationships of participants, incorporation of other considerations such as risk preference or risk aversion, trust and trustworthiness, “tit for tat” strategies, effect of uncertainty, relationship between leader and group member, just to name a few.  This entry is meant solely to introduce the very basic concept of social value orientation.
[xxii] I’d note that one who is individualistic to the point of aggression is most likely to ramp up competition in the face of anything other than complete cooperation in the other.
[xxiii] Most material written on social value orientation comes from other disciplines and much of that comes from Europe.
[xxiv] Rebecca Hollander-Blumoff, “Social Value Orientation and the Law,” 59 William & Mary Law Review ___ (2017).  This is a great, in depth article.
[xxv] Figuring out social value orientation is a little like assessing body language in, say, your classroom for a new set of students – the results are fascinating if not distracting.

Gathering Institutional Learning Outcomes Data

As law schools engage in outcomes assessment a key question involves how to collect institutional data on student achievement.  In A Simple Low Cost Institutional Learning Outcomes Assessment Process, I suggest one way to engage in data collection that requires relatively little additional law faculty time, relatively minimal expense, and does not require faculty to change how we teach or assess in our own courses.

Law school institutional learning outcomes require measuring nuanced skills that develop over time. Rather than look at achievement just in our own courses, institutional outcome-measures assessment requires collective faculty engagement and critical thinking about our students’ overall acquisition of the skills, knowledge, and qualities that ensure they graduate with the competencies necessary to begin life as professionals. Even for those who believe outcomes assessment is a positive move in legal education, in an era of limited budgets and already over-burdened faculty, the data collection necessary to engage in the new mandated outcomes assessment process raises cost and workload concerns.

To address those concerns, the article describes a process being used by Georgia State University College of Law [GSU COL] to collect institutional learning outcomes data.  GSU COL has developed a rubric method to assess a wide array of learning outcomes.

We modeled our process on work being done both by the American Association of Colleges and Universities [AAC& U] Values Rubrics Project and medical educators’ Milestones Project .  Those educators use rubrics to assess a wide range of nuanced skills such as critical thinking, written and oral communication, problem-solving, intercultural competence, teamwork, and foundations and skills for life-long learning.

Below, I briefly describe  GSU COL’s process for collecting institutional learning outcomes data.

The Institutional Data Collection Process

After identifying our institutional learning outcomes, we developed a five step institutional outcomes assessment process to collect data from GSU COL faculty.  The faculty data focuses on law student performance in various courses.

  1. Draft rubrics

First, we engaged our assessment committee and, in some cases, ad hoc faculty committees, in drafting rubrics. The rubrics had to be general enough that they were usable across a wide range of courses and adaptable to various types of course assessments. To draft the rubrics, we looked to our own experience and other sample rubrics such as those developed by AAC&U and medical educators as well as those developed by legal educators.  The article’s appendix contains GSU COL’s draft rubrics for our eight learning outcomes.

  1. Pilot test rubrics

Second, we identified courses that would use the rubric – courses where the skills being measured were already being assessed.  For example, for the basic legal knowledge and analysis outcomes, we chose first year and upper level doctrinal courses.  For self-reflection and client interaction outcomes, we chose clinics, etc.

We are pilot testing each rubric with faculty who will use the rubric and using their feedback to refine the rubric.  Because our assessment process is cyclical, each year, we pilot two rubrics and use two rubrics for actual data collection.  Thus, our rubric development process remains a work in progress and it engages a significant number of faculty members.  This helps ensure validity, engages faculty outside the assessment committee, and, hopefully, builds faculty buy-in.

  1. Use the rubrics

Third, every year, we ask faculty in designated courses to assess and grade as they usually do, adding only one more step – completion of a short rubric for each student.  Most faculty members have said this process adds very little additional time to grading.

Given our different outcomes and the cyclical nature of our assessment process, each year, different faculty will use the rubrics.  For example, one year, legal knowledge and analysis rubrics will be completed by doctrinal faculty.  The next year, legal research and writing faculty as well as  seminar faculty who assign papers will complete rubrics focused on legal research and writing, etc.  Thus, we spread the workload and engage as many faculty members as possible in the institutional outcomes assessment process.

  1. Enter the data

Fourth, we enter the rubric data from each course into a computer. This data entry process can simply involve an Excel spreadsheet, an SPSS program, or it can be more complicated.  For example, we worked with GSU university computer programming graduate school GRAs to develop software compatible with the university computer system to allow us to manipulate the data in numerous ways. We currently are working on developing the software program so that it can be used by other institutions.

  1. Use the data to analyze student learning and make changes if necessary

Finally, we are using the data to prepare reports about institutional level student outcome achievement.  In order to increase the validity of our findings, our reports contain information collected from multiple sources. For example, for each institutional outcome we have data from the rubrics faculty complete and externship site supervisor evaluations. Additionally,  LSSSEE survey data has information relevant to many of our outcomes.  The results from all that data are included in the faculty learning outcomes assessment report.

This Fall, our faculty will discuss our findings on the first two outcomes we measured – legal knowledge and legal reasoning and analysis.  While I noted at the outset that the data collection process does not require faculty to change how we teach or assess, our discussions in light of the data we have gathered may lead us to collective decisions that  some of us will adjust our teaching and assessment processes in an effort to improve student learning.  That is the entire point and purpose of the learning outcomes measurement process. However, before we can begin that work, we had to figure out how to get  information that allows us to have informed discussions.  The steps summarized above, and described in more detail in the article, are one way to do that.

Other resources

The data collection method above can be used both to measure institutional and even course level learning outcomes.  However, multiple ways to collect data exist.  Other good resources with concrete data collection methodologies include Andrea Funk’s excellent book: The Art of Assessment, and Lori Shaw and Victoria Van Sandt’s seminal work, Student Learning Outcomes and Law School Assessment.

 

How You and Your Students Can Benefit From Stone Soup Next Year

The University of Missouri Law School started the Stone Soup Project about a year ago to incorporate more knowledge about actual practice in legal education.

Stone Soup contributes to a more balanced educational diet, adding context of disputes and more focus on parties.  Readings on legal doctrine generally are extremely acontextual.  Of course, students get value in reading excerpts of appellate case reports to learn about legal doctrine and analysis.  Similarly, students get value in reading about practice theory.

But I think that most law students get too little education about how cases actually look to lawyers.  In real life, cases are full of facts, evidence, uncertainty, risk analysis, interests, relationships, and emotions, which provide context that is systematically stripped out of most of our teaching materials.

And parties – central characters in lawyers’ work – typically are portrayed as cardboard figures who are included merely to demonstrate our teachings, not as the principals, who lawyers serve.

Readers of this blog know this.  People – maybe including you – have been saying this for a long, long time.  Indeed, this has been a major motivation for clinical and other practice-oriented instruction.

Stone Soup is another systematic effort to provide a more balanced educational diet for students by including more of these perspectives in our teaching.

How Stone Soup Works

Since we started the Project about a year ago, we have engaged almost 1000 students in 40 classes covering 12 subjects, taught by 32 faculty from 25 schools in 3 countries.

Faculty generally have assigned students to conduct interviews about actual cases and/or practitioners’ backgrounds, philosophies, and practices.  Some faculty assigned students to observe court proceedings or mediations.  You can tailor an assignment to fit your educational objectives.

Most assignments were in traditional ADR courses, but faculty also used Stone Soup assignments in other courses including Access to Justice, Evidence, Relational Lawyering, Resolving Community Civil Rights Disputes, and Trusts and Estates.  Faculty could use them in almost any course, such as Labor Law, Employment Discrimination, Professional Responsibility, Civil Procedure, and Criminal Law, among many others.

Stone Soup faculty assessed their courses, identifying what worked well, what students learned that they would not have learned without the assignment, and what faculty would do differently in the future.  Here’s a collection of their assessments.

Faculty consistently reported outstanding results that far exceeded our expectations.  Stone Soup has provided many benefits including:

  • increasing students’ exposure to the real world of practice
  • helping students develop critically-important interviewing and analysis skills
  • identifying how theory does and doesn’t map well onto actual practice
  • supplementing faculty’s knowledge, especially for faculty who haven’t practiced in the subjects they are teaching – or haven’t practiced at all
  • increasing students’ and faculty’s enjoyment of the courses

Faculty who used Stone Soup assignments in their courses this year generally plan to use Stone Soup again with little or no change.

How You Can Use Stone Soup

The first year’s experiences yield some general suggestions for using Stone Soup.  In particular, faculty should require students to complete interviews or observations as soon as appropriate in a course, and should schedule time in class to discuss what students learned.  Discussing insights from these assignments early in a semester provides a base of experience that everyone can refer to during the rest of the course.

Here’s a table identifying characteristics of Stone Soup courses and including links to faculty assessments of the courses.  The table demonstrates the incredible creativity of faculty in tailoring assignments to fit their instructional goals and circumstances.  For each course, it shows:

  • Class size
  • Description of the Stone Soup assignment
  • Whether the assignment was required, one option of an assignment, or extra credit
  • Assigned paper length, if any
  • Due date
  • Percentage of grade, if any
  • Whether the results of the assignment were discussed in class

Some faculty like the Stone Soup idea generally but wonder if it work in their courses or feel hesitant for other reasons.  This post identifies some colleagues’ concerns and responses to those concerns.  In particular, the assignments need not add much, if any, workload, students generally can find interview subjects without faculty assistance, and Stone Soup can work well in almost any law school course.

If you would like more information, you can read this report on the Project’s first year and/or get in touch with me.

If you would like to join the roster of colleagues using a Stone Soup assignment next year, please let me know the courses(s) and semester(s) in which you would use it.

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