Kiser’s Soft Skills for the Effective Lawyer

I was really pleased to meet Randall Kiser at a recent conference.  I was very impressed by his important study (co-authored with Martin Asher and Blakeley McShane), Let’s Not Make a Deal: An Empirical Examination of Decision Making in Unsuccessful Negotiations.  The top-line finding was that in 85.5% of cases, parties went to trial when one of the parties would have been better off to accept the other side’s last offer.  Plaintiffs received an award less than or equal to the defendant’s last offer in 61.2% of the cases and defendants were ordered to pay more than the plaintiff’s last demand in 24.3% of the cases.

Randy is the principal analyst at DecisionSet®, which consults with lawyers and law firms to improve their effectiveness.  He has written several books including Beyond Right and Wrong: The Power of Effective Decision Making For Attorneys and Clients and How Leading Lawyers Think: Expert Insights Into Judgment and Advocacy.

He just came out with an excellent new book, Soft Skills for the Effective Lawyer, continuing his work to help lawyers do and be the best they can.  He defines soft skills as including “intrapersonal and interpersonal competencies such as practical problem solving, stress management, self-confidence, initiative, optimism, interpersonal communication, the ability to convey empathy to another, the ability to see a situation from another’s perspective, teamwork, collaboration, client relations, business development, and the like” (quoting Susan Daicoff).

He presents research showing that legal clients especially value these skills in lawyers.  Much research on lawyers, such as the Institute for the Advancement of the American Legal System’s “Foundations of Practice” study, shows that many practicing lawyers also highly value these skills – often much more than the skills we generally emphasize in law school.

Many readers of this blog would recognize these as precisely the skills we focus on in our theory, teaching, and practice.  The chapters deal with self-awareness, self-development, social proficiency, wisdom, leadership, and professionalism.  Each of these subjects include quite a number of specific skills.

The book synthesizes a great deal of research on psychology and lawyers, citing numerous empirical studies.  Teachers probably wouldn’t assign this as a required reading, but it would be useful as a recommended reading for law students who want to get a head-start on honing skills that they will really need after graduation.  It would also be of interest to faculty and administrators for decisions about what to emphasize in their courses and academic support activities.  Scholars interested in this subject would find this book of particular value.

 

 

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Survey of Applied Legal Education

Report on 2016-17 Survey of Applied Legal Education Now Available

The Center for the Study of Applied Legal Education’s (CSALE) report on “The 2016-17 Survey of Applied Legal Education” is now available: http://www.csale.org/results.html. Over 1,100 law clinic and externship faculty from 187 law schools (94% of ABA accredited U.S. schools) participated in CSALE’s latest tri-annual survey. The 2016-17 survey (CSALE’s fourth) provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty. The report summarizes the collective responses from schools and their faculty on questions relating to program design, capacity, administration, staffing, funding, and pedagogy, and the role of clinical legal education and educators in the legal academy. In addition to the report, upon request CSALE provides customized information on various aspects of the data to law schools, legal educators, scholars, and oversight agencies.

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Teaching “Too Big to Fail”?

What is Too Big to Fail?  Tragically, it is clear, not a law school, an American city, or a government-constructed storm levee.  But banks, or more accurately certain staggeringly rich banks, are the raison d’etre  for the quasi-legal phrase “Too Big to Fail.”  This week I teach on corporate fraud and attorney liability in my Legal Ethics course. We will be zooming the lens way out and starting with a look at the 2008 financial meltdown and the government’s multi-billion dollar bailout of the banking industry.

What is the connection to lawyer liability in corporate fraud cases? As the casebook I’ve adopted points out, the financial scandals of the post-World War II U.S. economy have drawn public attention to fraud by accountants and other financial professionals. But lawyers? Not so much.  And not for lack of involvement.

What is the law, if not a rubric to regulate human behavior? We reward and punish each other with laws, take away with one hand and feed with the other, all in a messy attempt to keep ourselves in check.  When we behave badly, the law metes out a corrective measure, overtly or tacitly. We trust that, by and large, this approach yields ever better results over time. As citizens, we honor this code with order when it works and dissidence when it doesn’t.

As teachers, though, how do we teach these distinctions?  More importantly, how do we teach self-regulation to future lawyers in a time when lawyer culpability is barely visible?  Lawyers are vilified in many contexts, to be sure. But our responsibilities for corporate governance and, at least in part then,  for our nation’s economic health, are crucial aspects of a budding lawyer’s knowledge base.  I think ethical inquiry belongs in every law school classroom, and gives our students the foundation they need to strengthen our legal system’s scaffolding.

 

Dealing with Causes as Well as Symptoms of Law Students’ and Lawyers’ Lack of Well-Being

The National Task Force on Lawyer Well-Being just issued its report, The Path to Lawyer Well-Being:  Practical Recommendations for Positive Change.

It’s a thoughtful, constructive effort to address problems that lawyers face in practice and to promote their well-being.  It deals with serious issues including substance abuse, mental health problems, and suicide.  It includes recommendations for better education, fostering collegiality and civility, enhancing lawyers’ sense of control, mentoring, and systematic monitoring colleagues’ well-being, among many others.  It addresses legal education, recommending adjustment of the admissions process to promote well-being, detection and assistance of students experiencing problems, addressing of issues of well-being in professional responsibility courses, and provision of onsite counselors, among other things.

An appendix suggests topics for educational programs, including conflict management.  This section reads, “Our legal system is adversarial—it’s rooted in conflict.  Even so, lawyers generally are not trained on how to constructively handle conflict and to adapt tactics based on context—from necessary work-related conflicts to inter-personal conflicts with clients, opposing counsel, colleagues, or loved ones.  Conflict is inevitable and can be both positive and negative.  But chronic, unmanaged conflict creates physical, psychological, and behavioral stress.  Research suggests that conflict management training can reduce the negative stressful effects of conflict and possibly produce better, more productive lawyers.” [Footnotes omitted in this and subsequent quotations.]

Dealing with Causes of Law Students’ Problems

I believe that many students’ and lawyers’ problems are caused by law school and legal practice.  To the extent that’s so, treating the symptoms will not fundamentally deal with the systemic causes of the problems.  Rather, significant changes in the nature of legal education and practice – not merely dealing with the symptoms – would be necessary to prevent many of these problems from arising.

I recently wrote a piece, Escaping from Lawyers’ Prison of Fear, in which I examined lawyers’ fears about negotiation and a long list of other things.  I summarized evidence that “the law school experience often is highly stressful and stimulates fear-related responses.  Patterns of fear initiated in law school can persist and grow as students move into legal practice. … Several studies have found that law students ‘consistently report more anxiety than the general population. … Although some students obviously thrive in law school, for others, law school is an experience of ‘fear and loathing.’ … During law school, [] symptom levels are elevated significantly when compared with the normal population.  These symptoms include obsessive-compulsive behavior, interpersonal sensitivity, depression, anxiety, hostility, phobic anxiety, paranoid ideation, and psychoticism (social alienation and isolation).  Elevations of symptom levels significantly increase for law students during the first to third years of law school.   Depending on the symptom, 20-40% of any given class reports significant symptom elevations.  Finally, further longitudinal analysis showed that the symptom elevations do not significantly decrease between the spring of the third year and the next two years of law practice as alumni.”

“It is not clear what causes law students’ distress. Theorists have suggested various features of legal education may be causal factors including ‘overvaluing theoretical scholarship and undervaluing the teaching function, employing generally unsound teaching and testing methods, and emphasizing abstract theory rather than providing practical training.’  In particular, some things causing distress may include an intimidating Socratic teaching method, novelty of the subject matter, ambiguity of the law, heavy work load, competition, lack of grades in most courses until the end of the semester, feelings of isolation, de-emphasizing personal relationships, ignoring emotional reactions, and reluctance to get help.  Some have compared the first year of law school to ‘military indoctrination’ in which instructors intimidate students, who are ‘stripped naked, so to speak, so that [they] may be remade’ as lawyers and, as a result, become passive and fearful.  Some scholars argue that legal education trains students to ignore their own values, which undermines their self-confidence.  For example, Dean Edward Rubin argues that lawyers experience ‘ethical stress’ where ‘lawyers [and law students] are required to be insincere, to speak words they themselves do not necessarily believe.’”

The Task Force Report recommends that faculty “assess law school practices and offer faculty education on promoting well-being in the classroom.”  It cites Larry Kreiger and Kennon Sheldon’s research suggesting that “potential culprits that undercut student well-being includ[e] hierarchical markers of worth such as comparative grading, mandatory curves, status seeking placement practices, lack of clear and timely feedback, and teaching practices that are isolating and intimidating.”

The Report recommends “that law schools assess their classroom and organizational practices, make modifications where possible, and offer faculty programming on supporting student well-being while continuing to uphold high standards of excellence.”

If law school faculty and administrators want to take serious action to prevent law students’ mental health problems and lack of well-being, they should conduct a careful examination of features of their programs that unnecessarily contribute to these problems.  Students with manifest problems are like canaries in the coal mine for a much larger group of students who experience great stress but whose problems do not manifest outwardly.  Thus dealing with fundamental causes of students’ problems could benefit a large portion of the student population.

As I wrote in connection with the Stone Soup Project, students may do better if they feel that their studies are relevant to professional goals — and fun.

Obviously, no set of measures dealing with causes or symptoms would completely prevent students’ problems.  And there is a long list of pressures inhibiting law schools from making substantial changes in their educational practices, so change would be hard.  But changing the law school environment – and not only addressing individual students’ issues – might be necessary to effectively address the cause of many students’ problems.

Dealing with Causes of Lawyers’ Problems

Most lawyers’ work is stressful.  Litigation is inherently adversarial and transactional work involves efforts to gain competitive advantage.  So the stress of constantly being immersed in conflict is unavoidable to some extent.  But not completely unavoidable.

Some lawyers view their roles as problem-solvers and, as such, seek to de-escalate conflict whenever appropriate while always providing diligent representation.  Even these lawyers need to fight hard when dealing with untrustworthy adversaries.  But they do so only when needed.

The culture in some practice communities is generally adversarial.  Acting tough is the default and the norm, not something that lawyers do to deal with a few exceptionally problematic cases.

This culture seems unnecessary and counterproductive both for clients and lawyers.  I believe that changing this culture would substantially improve lawyers’ well-being.  This is not merely being civil, which is good but doesn’t fundamentally change lawyers’ approach to their work.  Rather, this involves a legal culture where problem-solving is the norm for the way that lawyers serve their clients.  My book on lawyering with planned early negotiation is one of many efforts encouraging this approach.

As with changes in legal education, changing legal practice culture is not easy nor a complete solution to the problems.  But I think that seeking such changes is worth the effort.  Hopefully, such changes would produce better education and client service – with the side-effects of improving law students’ and lawyers’ well-being.

“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.

 

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