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. 

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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.

New Article: “When Interests Converge: An Access-to-Justice Mission for Law Schools”

These are challenging times in law schools.  Law school enrollments remain low and graduate unemployment remains high.  Many claim there are too many lawyers to go around and law schools are just making matters worse by continuing to educate prospective lawyers.  But the problem is not really that there are too many lawyers.  Indeed, roughly 80% of low-income and half of middle-income Americans face their legal problems without a lawyer.  Too many face their legal issues without the benefit of legal representation at a time when too many law school graduates are unemployed or underemployed.  In order to overcome this paradox, I argue in a forthcoming piece in the Georgetown Journal on Poverty Law & Policy,  that law schools should embrace an access-to-justice mission, one that would help focus law school teaching, scholarship, and service on the justice gap and help align the interests of those who want to ensure everyone has access to a lawyer who needs one with those who want law schools to continue the important work of educating the next generation of lawyers.  Below is the abstract to “When Interests Converge: An Access-to-Justice Mission for Law Schools.”  A draft can be downloaded here.  Comments welcome.

In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools.  Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem.  There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that.  This Article uses this interest convergence—and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it—as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans.  It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.

 

Finding Meaning

As national and international events continue to develop in uncertain and unsettling ways, educating the next generation of lawyers continues to be obviously and critically important. What should our laws be, how are they interpreted and enforced, how are our leaders elected, and what can be done to move toward justice? Legal education prepares leaders to contribute (wisely, we hope) to all aspects of civic governance – and yet – the institutions that provide legal education are still finding their way.

Word got out that most graduates do not become rich law firm partners within 7 years, or ever, and this is among the reasons why far fewer people want to attend law school. The boom and eventual bloat in legal education shouldn’t have been about the money, but, for many, it was. Now some large firm salaries have recently increased, in perhaps a hopeful sign of a rebound. But Professor Frank H. Wu’s comments resonate:

I have nothing against a young person declaring that they wish to make money — of course they do. My point is if that is the primary consideration in your career choice, there are better methods for doing so. Joining a profession in which you represent someone else entails making a sacrifice in the name of principle.

Society needs members of the legal profession who embrace the significance of their noble, helping role, apart from whether it brings wealth (and even though in many cases it won’t). Likewise, legal education needs students who seek potential meaning in their work, and also faculty, staff, and administrators who recognize that educating new lawyers might be more of a helping profession than a ramp toward remuneration. The disruption of the past several years has taught us that lesson, but without this underlying nugget of optimism:  As described by Will Storr in his recent New Yorker article, maybe Aristotle’s prescription for the good life was on target. Preliminary findings show that being engaged in meaningful work improves health and lifespan. Guiding our institutions and untangling the current state of affairs provide serious opportunities for lawyers to take on and benefit from this vital, meaningful work.

. . . because there is no social justice

Yesterday, I reviewed a student reflection that broke my heart a little bit. The student responded to my prompt, which asked her to comment on her summer work experience in the context of advancing social justice, by describing an intractable problem with her indigent client. She described hours upon days of work attempting to resolve an unjustified power shutoff for the client, and she ended her piece by explaining that she would continue to work with this case, this issue, and this client “because there is no social justice.”

My response to the student in part, was as follows:

As I sit here preparing to write a piece about the disintegration of our criminal “justice” system, prompted by yet another set of police homicides of men of color this week, your comment that “there is no social justice” certainly resonates with me. The need for us as lawyers, mentors and teachers to reflect with our students about that harsh reality, and to get up and do our jobs as public interest lawyers again the next day, is sometimes overwhelming. I share your frustration, which is not even the right term. I often feel in working with domestic violence victims in my clinic as if we are just rearranging deck chairs on the Titanic. The fact that we do not stop, though, is what keeps the ship of justice afloat. Battered, barely making it, but afloat. I fear it is at greater risk now than ever in this nation, though, and advocates like you will be critical to affect change from inside. Please keep doing what you are doing.

I like the sound of that metaphor about a ship of justice. But I’m frankly not sure if it is even apt.  What ship? What justice? As my colleague Leigh Goodmark noted yesterday, “As soon as I saw the news about Dallas this morning, I thought, I can’t. I just can’t face another day of violence and death and destruction.

That’s privilege. I don’t have to face the reality that when my son leaves the house, he might not come back. That my husband–or I– could be pulled over for a broken taillight and shot as we reached for identification. I don’t have to go into the streets to protest and die trying to protect my children from sniper’s bullets. Because I don’t live in black or brown skin, with a threat hanging over me every minute of every day.

That’s why we have to keep looking. Keep talking. Keep posting. Keep letting our friends of color know that we hear them, we see them, we value their lives, and we love them. Keep demanding better from our police, our government, ourselves. Our friends don’t ever get to say, I can’t. We shouldn’t either.”

Our privilege as law professors goes beyond skin color, but make no mistake, it is seeped in elitism.  Today I am using that privilege on this blog to say these words. That is all. It is not enough. It will never be enough. But I won’t stop. I don’t know if there is social justice. But I know there is a movement towards it, and I want to be a part of it.

 

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