The Kids Are Alright

Regardless of your position on gun regulation, the work of the students of Marjory Stoneman Douglas High School in Parkland, the latest victims of yet another act of senseless gun violence, has to be inspiring, if not a little humbling.  They are putting adults to shame, literally and figuratively.  Their eloquence, passion, and even their social media smarts, are creating a moment of reckoning in this country.  The so-called “adults in the room” cannot hold a candle to these students’ capacity to mobilize, empathize, reach across difference, and move a nation to action.

Many seem surprised by this. As an educator who teaches many millennial law students, I am not.  I see my students accomplish amazing things, and am constantly inspired by their intelligence, willingness to roll up their sleeves, and go to work.  Moreover, as a former law student myself (although, admittedly, nearly three decades ago), I saw students work together in the face of resistance, and the stories I have read about the work of the Parkland students and the thousands more who have taken up this fight resonate and are reminiscent of work that has occurred and will continue to occur, carried out by eager and passionate students who won’t take no for an answer and continue to “Call BS” when necessary.

What we are seeing in action is perhaps the greatest student project ever undertaken.  From the outside looking in, it looks like the students are working collaboratively and sharing the spotlight among themselves and with others outside their immediate circle.  They appear incredibly supportive of one another, are pressing ahead in support of a cause larger than themselves though grounded in their personal experiences of tragedy, and are reaching out to others to build bridges across geographies and communities. They are accomplishing slow and steady wins that help to build momentum, sustain their energy, and create confidence to take on the next challenge. In short, they are doing all of the things that a group needs to do in order to produce meaningful change.

In academia, many fear the group project.  But it is how the world functions, and how humans have been operating for millennia.  In fact, our capacity for cooperation is probably what makes us human.

Such group activity can also can have its downsides, and not just in terms of the free rider who benefits from the work of others.  Rather groups can take on a life of their own, and distorted and harmful collective understandings can emerge as a result.  In the wake of the collective tragedies of Nazism and Stalinism, “groupthink” became a source of serious academic study. But on the brink of World War II, Hungarian sociologist Karl Mannheim wrote about how industrialization and urbanization was impacting our collective capacity for this sort of groupthink as follows: “life among the masses of a large town tends to make people much more subject to suggestion, uncontrolled outbursts of impulses and psychic regressions than those who are organically integrated and held firm in the smaller type of groups.  Thus industrialized mass society tends to produce the most self-contradictory behavior not only in society but also in the personal life of the individual.”

The students of Parkland and the many others who are emerging into the broader spotlight are organizing themselves at the local level, school-by-school and community-by-community, and helping the rest of us see the disastrous and ruinous groupthink that has captured the collective imagination around gun control.  And they are doing it in remarkable ways, sustaining their collective energy in the wake of tragedy.

Recent research into how groups can work effectively, carried out by Google in what it called “Project Aristotle,” identified a series of common components in effective groups, including the following:

  • Dependability: getting things done on time and accurately;
  • Structure and Clarity: having clear goals and clear roles;
  • Meaning: the work is personally important to the team members;
  • Impact: team members think their work matters and will bring about change;
  • Psychological Safety: team members feel safe to take risks and be vulnerable in front of others.

From the outside looking in, the Parkland students and the many others who have been working for meaningful responses to gun violence who have gained greater attention because of the Parkland tragedy, appear to meet these criteria for successful groups.  They pulled off hundreds of simultaneous rallies across the country in a matter of weeks.  They could not have done so had they not had some structure and clarity to their work, did not see the importance of their work, and did not derive meaning from it.  And it would appear that they are incredibly supportive of each other, both within their own groups and in relation to each other.  For example, during Saturday’s march in Washington, when a student, Samantha Fuentes, who was wounded in Parkland, was addressing the crowd, she paused a moment, turned away from the lectern, and vomited.  Other students rushed to her side, urged her to keep going.  She emerged from being doubled over to proclaim: “I just threw up on international television and it feels great!”

The students leading this campaign should be an inspiration to everyone who wants to bring about change, and can help us understand how we can do it collectively, because it is in such group efforts that real change is possible. I have written about my own experience as a law student working on a case, brought by a law school clinic, that challenged the U.S. government’s treatment of Haitian refugees in the early 1990s, a case which ultimately went to the Supreme Court.  In ways that echo the work of the Parkland students, but by no measure on the same scale or with the same impact, the team effort there, led by students, invoked many of these themes as well, and can help show how law schools can harness the collective capacities law students have for bringing about change.

In an oft-quoted phrase, Margaret Mead said to “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”  How such groups should actually go about doing that is another question, and the Parkland students and the thousands of others who have been inspired by their work, or who have finally gotten the attention they deserve, may just show us the way.

Advertisements

Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

Forbes article focusing on law schools, competencies and skills development

Earlier this week, Forbes contributor Mark A. Cohen discussed what he calls “the interdependency — and misalignment —   of law school stakeholders.”  Cohen refers to a comment in a recent speech by Mark Smolik, the general counsel of DHL Supply Chain Americas, that  “he would no longer subsidize on-the-job-training of law firm associates.”  According to Cohen, Smolick’s remarks are an

indictment of the Academy for its failure to produce practice-ready graduates with required skillsets and a swipe at law firms for their failure to more fully invest in associate training to drive client value.

Cohen is urging today’s law students to look to the marketplace for “efficient, accessible, cost-effective, and just-in-time learning tools available to fill knowledge gaps and to teach new skills.” He boasts about one product that produces “high quality videos” and uses “flipped classrooms.”

I don’t disagree that law schools need to transform faster, provide more skill building,  emphasize the business context in which lawyers are hired to help, and prepare law students for the team realities of today and tomorrow’s economy.  And I appreciate Cohen’s raising this issue and inviting discussion. But his claim that only a “handful” of law schools are savvy on these issues – or as he put it have “yet to read the memo” – made my Irish blood boil. Maybe it is because it is the end of the week and I’m just tired? Maybe it is because I  just recently (September 13th) hosted yet another Flipping (every pun intended) workshop at our school showcasing all the great work being done by my colleagues in flipping their classroom? Maybe it is because if Cohen googled law schools and flipping classrooms,  he would have found Michele Pistone’s fabulous LegalED information? Maybe it is because he could have found this blogsite pretty high up on that google search and clicked on a number of posts such as here and here  and here and here and here  and here ?  Maybe it is because  nobody is noticing the work of folks like my faculty colleague Antony Haynes on innovative online opportunities?

I invite you to read the article, see what you think and tell us on this blog about what Cohen missed happening at your school!

Experience with Peer Support, Peer Review and Feedback on Teaching?  

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

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.

Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

What is a “Fact”? A “Story”?

In Washington D.C., on the GWU campus, there is a statue of a hippopotamus. A nearby sign explains that the statue was placed there because hippos once could be found in the Potomac. George and Martha Washington liked watching them from their Mount Vernon porch. They were also a favorite of children visiting the estate. George Washington even had a false set of teeth made of hippopotamus ivory.

As you have likely guessed, that sign offers readers what we might call mendacities, misrepresentations, falsehoods, alternative facts, untruths, lies, or bulls**t. To end any suspense, there really is a statue, the sign really does say most of these things, and George Washington really did have a false set of teeth made of hippo ivory. But the Washingtons never saw hippos frolicking in the Potomac and no one would have children anywhere near the Potomac if there were. To see hippopotami in the Potomac, someone would have had travel to Sub-Saharan Africa, capture a pod of hippos (they are social creatures) without being attacked (they are very dangerous, killing 3,000 people each year), carry them across land to seafaring boats, make the trek across the Atlantic, and then to the Potomac—all while keeping the animals’ skin moist at all times. The hippos might freeze in the winter if not recaptured and quartered somewhere warmer. Hippos are also very large, weighing in at 1.5 tons or more.

Nevertheless, these facts and falsehoods hang together as a story. When did you begin to question that story? When you began to question, did you then question the entirety of the facts or were you willing to believe any of the information as fact? As lawyers, you know that stories are composed of facts, but if asked for a definition of a fact or of a story, can you provide one?

More importantly, we want the next generation of lawyers to fully appreciate the answers to those questions. With the decentralization of information, I find that I need to be more deliberate in my approach to teaching different categories of facts: actual facts such as the sun rising in the east on our planet; verifiable facts, such as the natural habitat of hippopotami; and debatable facts, such as whether this sentence should have used “whether or not” instead of “whether.” I also spend a significant amount of time distinguishing facts from characterizations, which are essentially the opinions or judgments of the writer. Someone’s “lovely summer-preview week in April” is someone else’s “torturous week in April” if that second someone suffers from summer Seasonal Affect Disorder. And, now, sadly, I am spending more time teaching the difference between facts and misrepresentations or falsehoods, such as a statement that this blog post focuses primarily on hippopotami (a misrepresentation) or on cat memes (a falsehood).

For several years, I have also spent several class hours on the importance of story structure as the delivery vehicle for facts and story strategy as a driving force in persuasion. A story involves characters, a setting, and hurdles or challenges that a particular character or characters must overcome to reach a desired goal. Implicit in that definition is the passage of time, i.e. a beginning, middle, and end. It is easy to see how legal matters exist as stories. The nub is in the teaching of the re-telling, from the client’s perspective, using description and detail—that is, facts—rather than characterizations.

Facts must be presented as a narrative rather than as a list if the author wants the audience to interact with those facts and remember them. Facts by themselves don’t persuade. Stories persuade. That’s not my opinion, but has been demonstrated by science across a variety of fields. We think, act, make decisions in story. As those of us studying and writing on applied legal storytelling know, former Oceanographer at the Department of Energy, Kendall Haven has published books to help professionals digest the vast amount of science out there. For yourself, take the simple but germinal test in the study conducted in 1944 by Drs, Fritz Heider and Marianne Simmel. Look at the video and see if you can answer a few of the questions. If you can, you have demonstrated that you think in story. To demonstrate this to my students, before showing the video I divide the class in thirds and assign each group a client to represent. After showing the video twice I ask each group to tell a story from that client’s perspective.

Contrary to what we may call our lawyer’s sense of justice when the verifiable facts disprove falsehoods, citing just the facts by themselves may actually backfire–here’s a great Harvard Business Review article with links to the original studies that will help explain why. In law, there are several studies of jurors that demonstrate the power of story, but only a handful of studies testing legal audiences. In a 2010 article Ken Chestek wrote about a study that used carefully constructed briefs to study the preferences of judges, court staff attorneys, newer attorneys serving as law clerks, appellate attorneys, and law professors. From the data, he concluded that stories are more persuasive to decision makers than syllogistic reasoning by itself. Attorneys and judges with more than five years of practice overwhelmingly chose a storied version of an advocacy document over a straight-up law/application version. Only the attorneys newly out of law school deviated from this pattern—begging the question, are we doing something in law school that skews this number so much from what judges and seasoned attorneys believe to be effective lawyering?

Assuming you are on board that our students should graduate knowing what facts are and knowing that representing clients means being able to appreciate and tell their clients’ stories, the last question to answer is the curricular locale for teaching these things. Historically, the clinic and externship programs at law schools have been celebrated for focusing students on facts and narrative in a capstone experience. I am a true believer that those programs will continue to be the locales in which students will most strongly make the connections between legal and narrative reasoning. But we do students a stronger service if they enter the capstone experiences with a strong foundation. The casebook authors can include more story so that teaching professors can reinforce the ideas of facts and narrative. The skills professors of the trial advocacy and practicum courses include some training, but the first and heavy lift most appropriately belongs in the required first-year legal research, analysis & communication course series. Gone are the days when we can teach those courses by indulging in the pedagogy of a legal document’s traditional text-based sections or on a singular paradigm for organizing legal reasoning. In 2017 we must focus on making students client-ready. Written and verbal communication in law occurs in a variety of mediums, to a variety of audiences, and in a variety of different rhetorical situations. The connecting universals across law and legal communications will always include law, facts, and story.

*Thank you to Courtney Knight, Class of 2017, Rutgers Law School, for the story idea.
%d bloggers like this: