Let Me Introduce Myself

My name is John Lande and I just became a blogger with BPLE.  I want to tell you about my background and interests and the kinds of things I expect to write about in this blog.  This post also includes links to some resources you might be interested in.

I taught at the University of Missouri starting in 2000 and I retired a year ago, beginning what I call “unbundled retirement.”  I don’t teach or attend faculty meetings anymore, but I still want to stay involved in things that I care about.

Two years ago, I started blogging on Indisputably, a blog of law professors who focus on dispute resolution.  I love blogging, which I will continue in retirement.

Here’s a link to my website, which includes more information about me and links to my publications, some of which are not on ssrn.

Focus on Dispute Resolution

My career has focused on dispute resolution.  I graduated from law school in 1980 and practiced law for a while.  I felt uncomfortable with the adversarial dynamics of legal practice and I took my first mediation training in 1982 and then practiced law and mediation for several years.

In 1989, I went to grad school in sociology at the University of Wisconsin, studying sociology of law and dispute resolution.  For my masters thesis, I interviewed people who handled employment discrimination disputes within their organizations.  For my doctoral dissertation, I interviewed business lawyers and executives about their attitudes about litigation and ADR.

Most people in the “ADR” field, including me, think that it is misleading to refer to it as “alternative dispute resolution,” but the label has stuck.  I don’t think that there’s an ideal alternative and many of us simply use the term “dispute resolution” or “DR,” even though that’s problematic too.

Many people in the DR world think of “ADR” as involving neutrals (other than judges).  But focusing only on neutrals doesn’t fit because unmediated negotiation is recognized as a major sub-field.  Indeed, much of what we teach and do is advocacy in processes like mediation and arbitration.  Here’s one post I wrote musing about what ADR is and isn’t and here’s another one.  They reflect my view that lawyers and judges are dispute resolution professionals, not just mediators and arbitrators.

In the last decade, I wrote a series of articles about collaborative law and cooperative law, which are processes in which lawyers and clients start by trying to negotiate instead of starting in litigation and negotiating at the end of a case, after most discovery has been completed.

I think that these processes have real value though they are used almost exclusively in family law cases and only by agreement of both sides.  Collaborative law involves a “disqualification agreement,” which precludes the collaborative lawyers from representing the clients in litigation if needed.  This makes the process a non-starter for many lawyers and parties, especially in cases other than family law.

I wrote a book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, in which I applied some concepts from collaborative and cooperative law to describe an approach that lawyers can use unilaterally in any type of case.  This book was based, in part, on interviews with lawyers who actually use this general approach as opposed to lawyering with unplanned late negotiation.  I later did another study along the same lines based on more interviews with lawyers, Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better.

Focus on Legal Education

I developed and maintain a website, Dispute Resolution Resources for Legal Education (DRLE), which includes syllabi, teaching materials, and a list of DR programs and links.  It also includes instructions for subscribing to a listserv promoting discussion of issues relevant to DR in legal education.

In 2010, I wrote my first article on legal education, co-authored with Jean Sternlight, The Potential Contribution of ADR to an Integrated Curriculum: Preparing Law Students for Real World Lawyering.  This piece describes how ADR concepts and skills are integrated into other courses and suggests ways that this could be done more.

This article inspired the development of the Legal Education, ADR, and Problem-Solving (LEAPS) Project of the ABA Section of Dispute Resolution.  LEAPS developed a great website with lots of resources about how to increasingly incorporate “practical problem solving” into law school curricula.  Perhaps of particular interest to BPLE readers, this website has a list of textbooks in a wide variety of subjects which include a problem-solving approach as well as a list of colleagues who would be happy to help you incorporate problem-solving techniques in your courses in particular subjects (e.g., civ pro, contracts, etc.).

In 2012, I organized a symposium at Missouri entitled, “Overcoming Barriers in Preparing Law Students for Real-World Practice.”   For the symposium, I wrote an article, Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, which incorporated major themes in the symposium and included my ideas about legal education reform.

That year I also started teaching negotiation and I experimented with lots of techniques in that course.  In Teaching Students to Negotiate Like a Lawyer, which I wrote as I embarked on this experiment, I described these techniques.  In Lessons from Teaching Students to Negotiate Like a Lawyer, I described what worked and what didn’t work so well the first time I taught it.

One of my major insights from this experience was the great value of using multi-stage simulations in addition to one-stage simulations.  Most DR courses rely primarily or exclusively on one-stage simulations in which students are given fact patterns to enact for perhaps 10-60 minutes.  While these simulations are useful in prompting students to get into roles of lawyers, clients, and others, students don’t get into their roles in single-stage simulations as much as multi-stage simulations.

I described my use of multi-stage simulations in the two articles I just mentioned about teaching negotiation.  I prepared an eight-page document with suggestions for instructors who want to use multi-stage simulations in their courses.  And I solicited descriptions from colleagues about how they use multi-stage simulations in a wide range of courses, which are posted on the DRLE website.

I recently wrote my “Last Lecture” article, summarizing advice for law students based on my teaching and scholarship.

Blogging for BPLE

As a blogger on Indisputably, I have written various posts about legal education, generally tagged “for teachers and students.”  I have written some on particular topics that BPLE readers might be interested, including simulations, legal skills and techniques, and student assessment and grading.

I have occasionally passed along some posts to Mary Lynch that I thought BPLE readers would be interested in.  After I wrote one recently, I thought it would make sense for me to post some myself from time to time.

For example, you might be interested in my posts Non-Apology Apologies, Ethics, and Lawyers and Training Law Students to be Leaders.

By joining BPLE, I hope that I can serve as a bridge between faculty particularly interested in dispute resolution and those particularly interested in legal education issues.  If you have some interest in DR, you might check out or subscribe to Indisputably.  Conversely, I am encouraging my friends on Indisputably to check out or subscribe to BPLE.

I hope that you enjoy my posts.  I welcome your comments online or off.

 

 

Learning and Teaching – the Progression

I have become interested in progression and ordering lately.  Not so much with chickens and eggs, but more with respect to progressions used in the classroom.  Traditionally, I would start a class with a case and deploy it to open up an area of substantive law, utilizing questions, problems, canons of interpretation, and other cases to explore the meaning of concepts presented in the initial case or topic. The substantive areas depended on the course and ran from appurtenant easements (Property Law), to impeachment by prior untruthful acts (Evidence), to searches incident to lawful arrests (Criminal Procedure). My interest in ordering made me aware of the fact that I approached each class with a duality of teaching and learning.  Teaching usually was first in my progression.  The spotlight was on me as the teacher; I opened and conducted the class and then ended it when time ran out. I had many assumptions.  I assumed student motivation existed; that students started, followed, and ended the class with me; that students had effective practices of adding information to their understanding; and that students readily retrieved the information when needed.

But I wondered what would happen if I reversed the norm of ordering?  What if I placed learning first in the progression, especially in reference to motivation?  Motivation in law school is a lot like a roller coaster (at least it was for me) – it ebbs and flows quite a bit, sometimes within the same day. Motivation is often invisible to the classroom, but weighs heavily on learning.  Early in the first year there is a surfeit of it, and by the third year, well, lets just say there is not as much of it.

This reversal of progression, with learning first, changed a lot for me in the classroom.  In the past year or two, it has allowed for more variation, for greater focus on student improvement, for more experiential “doing” as part of basic courses, and for more direct consideration of student motivation.  For example, in this new progression, students fill out cards explaining what motivates them to learn the most and the least. Students also start each class by indicating where we are in the tapestry of subject matter – something they were used to me doing.  Since experiences often are helpful motivators, many more experiences are blended into the course — students now interview real world participants in law (e.g., police officers in a Criminal Procedure course) or Evidence (trial lawyers) and create short but deep PowerPoint presentations or videos in all courses about a point in the course that was worth further exploration.  These presentations served to recap what people had learned and to offer a combined “outline” of sorts for exam preparation.  Further, classes now end (at the students’ request) with a brief synopsis of what we did, to see if everyone finished around the same place.

In all, I found that focusing on learning generally, and motivation in particular, were very worthwhile.  I enjoyed the new way of guiding the course even more than I did the old.   There were different assumptions made, but I think they were more accurate.  Priorities can inform progression.

AALS Video Series on Law Teaching

Recently, a fellow blogger sent us a very helpful tool, that we wanted to share with our readers.  Last year, during the 2015 AALS Clinical Conference, a series of informative videos was created for law professors about the complications associated with law teaching.  The entire series is about an hour long, with each individual video being only about 5 minutes long.  These videos address some of the important pedagogical issues that law professors are currently grappling with, such as assessment, adding experiential learning to doctrinal courses, reflection, and technology.

This in the link to the entire series:

Competencies-Based Legal Education

[This was originally posted by the Clayton Christensen Institute on Disruptive Innovation]

 Last week, I discussed why law schools need to respond to the changing marketplace for legal services and legal education.  In thinking about how best to prepare for that changing world, law schools need to consider how competency-based educational models can be employed to advance educational objectives for students seeking to enter the market for legal services.  As Michael Horn and I explain in our new whitepaper, Disrupting Law School, regulatory protections that have sheltered law schools from competition will continue to subside.  In this new environment, law schools need to reimagine themselves as educators for students interested in learning about the legal services sector, not simply those seeking a JD.

One way to do this is to think about legal education from a blank slate.  Rather that try to retrofit our current pedagogy to address 21st century needs, instead we need to think about it from its inception — if one were to start a school today to educate those who want a career in the legal services field, what would that school look like?

Upstart competency-based education programs have done just that in other parts of higher education.  They provide at least three new considerations for traditional law school as they begin to think about and prepare for the future.

1. Time is no longer the measure of accomplishment

Online competency-based learning reverses the traditional relationship in education between time and student learning. In the traditional educational model, time is fixed while each student’s learning is variable. With online competency-based learning, the relationship between time and learning is reversed — time becomes the variable and each student’s learning becomes essentially fixed. Students process at their own pace, moving from topic to topic upon mastery of each. Those who need more time to master a concept before moving on to the next take the time they need, while others move ahead to the next set of material and learning objectives.

2. Centrality of competencies, learning outcomes, and assessments

Online competency-based programs shift the teaching pedagogy toward student-centered learning. In an online, competency-based program, faculty and instructional designers start by identifying the competencies students must master to achieve the desired learning outcomes and then work through each to understand how a student would demonstrate mastery of those objectives. Through constant feedback, students know how they are doing and what they need to do next and teachers can determine when students have mastered competencies and are ready to move forward. The assessments in other words are both forward looking—assessments that help determine what a student studies nextand backward looking —assessments that indicate whether a student has mastered the material.

3.  Modularization of course material provides more flexibility and different business models

Online competency-based learning is also changing key elements of the traditional higher education business model. Online technologies make it possible to modularize the learning process—that is, to break usual semester-long courses into shorter learning units or modules, which can be studied in sequence or separately. When material is packaged in online modules, it is easier to use for multiple educational purposes and multiple audiences in different combinations.

Stackable modules allow students to create individualized curricula based on their own learning goals and objectives. For students who attend law school knowing the area of law in which they want to practice—a segment of the student body currently underserved due to limited course offerings in any one topic at any one law school—modules open up opportunities to stack credentials from multiple sources. The long tail of the Internet opens up these opportunities; there may be sufficient student demand if online courses can aggregate demand and serve students from around the country or even the world.

Modules also eliminate duplication and optimize teaching resources. This flexible architecture can create an entirely new business model for law-related education. When learning is broken down into competencies—rather than semester-long courses—modules of learning can be packaged into different scalable programs for very different audiences—for example, paralegals, legal technicians, law students, lawyers (CLE), judges, administrative agencies, non-JDs working in law-related fields, foreign students, high school/college moot court teams, undergraduate students, journalists, clients, life-long learners, and so forth.  The possibilities abound.

This exercise can take us in a lot of different directions.  Every direction, though, will ask us to change and move beyond the status quo.  While change is hard, it is also necessary.  I hope our whitepaper provides sufficient impetus to get started.

Teaching Tips to Think about Early in the New Semester- By Steven Friedland

With the beginning of a new semester upon us, these thoughts and tips are a great thing to keep in the back of everyone’s mind whether you are a student or a professor.  This great post was done by Steven Friedland.

Flexibility and Mobility in Law School Learning

As a professor who has been teaching for more than two decades, it is easy to feel like a dinosaur in classes populated by students mostly in their 20s.  But within that notion lies the fact that not only do ages change, but cultures as well.  It is evident that within the born-digital generation, cultural understandings, particularly involving learning, are different than mine.

While I think cross-cultural competency is more important than ever in this global era, it also applies to us teaching dinosaurs.  I learned in law school in a linear and fixed fashion – go to class, take notes, go to the library, study and prepare for the next class.  Based on studies and my own anecdotal evidence, there is an increasing preference for mobility and flexibility in learning.  I am becoming a believer in both — using Web platforms like TWEN, Blackboard or Moodle as integral parts of a course, and allowing students to have flexibility in where and when they learn.

I am now experimenting in doctrinal courses to include several flex classes — audiotaped, with an option to take each over a 24 hour period in a self-paced fashion.  These self-paced classes are combined with deliverables — writing an answer to a problem based on the class material and then posting it on the Web platform, or doing some other relevant task based on the material to ensure that some form of learning has occurred.  So far, these classes have been well-received; to my surprise, students like the flexibility about when they take class as much as the remote opportunity. I am enjoying shaking it up in this way.  What is the saying?  Even an old dinosaur can learn….

 

Note-Taking Breaks

In a law school class, there are a variety of note-takers.  Some are the “court reporters,” taking down every word.  Some take far fewer notes, within their own organizational schemes. Many students are using computers, with note-taking programs. I also have had some “deep observers,” who appear to take no notes at all.

But all students seem to rely on the notes they take in putting a course together for deep understanding, especially in the first year of school.  Interestingly, teachers do not generally know how students are taking notes and whether those notes taken are even accurate.  This is why I have started using a colleague’s technique (yes, I like borrowing good ideas from others, no hiding there), of taking “note breaks” in the middle of a doctrinal class — allowing students to check their notes with other students, particularly about important rules, principles or insights. I usually prompt the break by asking, “What were the most important points in class so far?”  This has several effects.  Everyone perks up and the students appear present and engaged.  Students also are more likely to ask questions about what has occurred thus far.  I get useful feedback on what I have communicated well and what I have done poorly.  So all the way around, I find it to be a helpful technique. When students walk out of class, they should be able to rely on and have ready access to useful notes.

 

Retention and Retrieval

Lots of studies have been done that show experts learn differently than novices.  In any educational process, the goal is to move up the scale, from unconscious incompetence, to conscious incompetence, to conscious competence, to the highest level, unconscious competence.  I know about the lowest level, having been there in law school and many other contexts (just thinking back on the longest years of my life taking piano lessons).  The highest level of competence is epitomized by Captain Sully, the U.S. Air pilot who landed his commercial plane without engines in the Hudson River.

So what learning features are associated with experts? Experts recognize patterns of information, have deep understanding of material within a domain, organize their information well for ready access, and constantly self-monitor.  We can learn from these characteristics in law school.  It is traditional for law school professors to evaluate student performance through a single final examination, (although sometimes mid-terms are also offered).  The traditional summative evaluation framework promotes a particular type of studying.  Students study like crazy just before an exam, and then dump all of their knowledge on the test. (This approach was a familiar one for me when I was in school.) To help students progress from novice to expert, though, we should teach for long-term retention and retrieval.  This can occur through the use of numerous problems and opportunities throughout a course by which to practice organizing and storing material before a final exam, the use of structures or outlines by which to approach topics, and a greater emphasis on mnemonics, anchor words and other learning devices.   Sometimes, in our desire to cover great swaths of material, we don’t drill as deeply as we could or should.

Ten Questions to Ask Yourself Before Volunteering

As a follow-up to my previous post on “-crastination”, Creativity and the Importance of Downtime, I’m sharing a copy of my favorite handout for helping all of us, students and faculty alike, learn to engage in discernment around saying no, and yes.

TEN QUESTIONS
Ask yourself these questions

Before volunteering your time, skills & energy to ANYTHING!

  • Is there a chance I will find myself changed by this work?
  • Does this work express my values, the things I say are important to me?
  • Will this put me with people I want to know better?
  • Will doing this help me know myself better?
  • Do I enjoy thinking of myself as a person who would do this?
  • Do I have a special gift to share?
  • When I look back in a year or ten years, will I remember doing this?
  • Will this make me feel more connected or more disjointed?
  • What will I need to say NO to in order to say YES to this?
  • Will it be FUN!

 

Thanks for Maylin Harndon for sharing her version of this with me.

 

 

 

“-crastination”, Creativity & the Importance of Downtime

A colleague who was in my Civil Procedure class when I was a baby law professor tells me that what he remembers best from the class is my comment along the lines of:  “When you are stuck  — can’t make sense of what you are reading, struggling with a project — take a break, do something else, work in the garden.  When you come back to your task after clearing your mind, you’ll make better progress.”  (An illustration of Judith Wegner’s recent reflections on teaching, emphasizing sharing what we know??)  I have no memory of making such a comment (and no, it’s not old age kicking in; I couldn’t remember when he told me about it 15 years ago). But I like to think it’s something I would have said.

I was reminded of this story when I read the recent NY Times column “Why I Taught Myself to Procrastinate” by Adam Grant.   A professor of management & psychology, Grant is a self-proclaimed pre-crastinator who habitually used to meet deadlines in advance —  even months in advance for big projects!  Now, however, he’s trying to train himself to, as he terms it, procrastinate. Citing experiments by one of his graduate students showing that people were rated as more creative in coming up with new business ideas when they engaged in an unrelated activity for five minutes before answering the question, Grant  argues that procrastination can be a good thing.

This blog post is testament to the potential value of procrastinating.  When I read the column I was, in fact, procrastinating on my blogging efforts.  Reading a bit aimlessly, casting around for a topic. And voila, thanks to Grant, I found one.

Nonetheless, I happen to think that Grant fails to distinguish between people who are truly procrastinating  and those who simply  operate at a pace that provides downtime for recharging and percolating.  In my book, procrastinators stick their heads in the proverbial sand, put off the task, often feeling guilty or stressed about it, but aren’t necessarily mentally percolating it. For instance, until I became an attorney and my point of view was dictated, I habitually put off writing projects until the deadline loomed.  Unable to “find truth in fifteen pages”  — or worse, engage in creative writing — and not understanding that the point was typically the less daunting one of saying something interesting, I froze until the pressure of the deadline overcame the urge to procrastinate. I suspect that the delay was rarely  generative, as I won’t think hard, unless I write.  And it certainly left no time for the multiple drafts required for quality work. Prescribing procrastination for students like my younger self? Not productive.

With many present day law students, the challenge seems less to be procrastination of the type I struggled with, and more actual lack of time.  So many of our students are simply waaay over-committed.  In the current environment, students seem to feel they must take advantage of every opportunity that presents itself. I suspect that for them, the remedy is learning to say to to over-busyness, incorporating the periodic downtime that a more human pace allows.  And we could do them a big favor by helping them with that process.  Whether we call that procrastination, or not.

 

 

 

 

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