CROSS-BORDER TEACHING AND COLLABORATION

By: Stephen A. Rosenbaum

STEVE ROSENBAUM, John and Elizabeth Boalt Lecturer, teaches social justice and professional skills courses at Berkeley Law and is a Visiting Researcher Scholar at UC Berkeley’s Haas Institute for a Fair & Inclusive Society. He contributed to a chapter section on Cross-Border Teaching and Collaboration in Building on Best Practices and is currently the international leader of BABSEACLE’s Myanmar team, helping to strengthen externship preparation and street law courses under the auspices of the European Union and British Council.

I joined colleagues Kim Ambrose, Bill Fernholz, Catherine Klein, Dana Raigrodski and Leah Wortham a few years ago to share thoughts in print about principles and experience under the rubric of Cross-Border Teaching and Collaboration (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2558255). As a Visiting Senior Lecturer at the University of Washington, my focus then was on engagement with LLM students from Afghanistan and Indonesia. A handful of State Department and USAID grantees came to UW each year to obtain their masters and hone clinical skills, while working in situ with clinicians. The objective of this particular global clinical niche was to establish or improve upon clinical education activities in the home countries of these junior faculty members upon their return. My attention has since turned to the flip side of cross-border teaching, namely, building teaching capacity abroad.

I’ve always been a big tent advocate when it comes to defining clinical education—with room for externships (and internships), street law, mock trials, moot competitions, and even classroom simulations under the tarp. I’m painfully aware of the pecking order and schisms that have surfaced in the United States as we parse the terms “clinic” and “clinical” and position ourselves on various rungs of the academic ladders. As much as I’ve cautioned Egyptian faculty and students against viewing the legal clinic as simply a room with a sign on the door, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354525 I also urge US clinicians to recognize that building clinical capacity abroad may be as modest as mentoring a moot arbitration competition team, collaborating with community-based organizations to host legal awareness-raising events, and sending students to local NGOs and law offices to apprentice with practitioners, without having firmly in place all the best practices. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2710518. We must always be mindful of the mantra that clinics evolve organically, and there is more than one path to follow.

Myanmar (formerly Burma-formerly Myanmar-formerly Burma) presents its own set of unique challenges. I’ve been here for nearly a year as international leader on a NGO team (www.babseacle.org), funded by the EU and “implemented” by British Council, in the midst of marital dissolution proceedings between the Brussels Eurocracy and UK Parliament. Myanmar’s attorneys, law officers, judges and law teachers are slowly emerging from the isolated world they inhabited while the country pursued a post-independence “Burmese Way to Socialism” and then decades of military authoritarianism. The nation burst triumphantly into an era of transitional democracy almost a decade ago, championed by the charismatic daughter of a charismatic national liberation leader.

Since then, the juridical and educational elite have essentially been sorting through grains of white rice and fermented tea leaves, choosing which law and lawyering ingredients they want to retain from the British colonial past and which donor-advised post-Socialist and neo-Liberal legal practices they should graft onto the physically and intellectually decayed tertiary educational infrastructure. The march toward democratic reform proceeds under the watchful eye of military careerists and civilian bureaucrats. Meanwhile, decades old inter-ethnic armed conflict continues to internally displace thousands of Myanmar children and adults—and that doesn’t even count the more internationally publicized major human rights abuses committed against the Rohingya Muslim minority, and their exile to neighboring Bangladesh.

The eight principles that my US-based colleagues and I laid out to guide cross-border teaching contexts in our Building on Best Practices sub-chapter strike me as commonsensical today as at the time of our joint writing. These principles include: a good dose of cultural competency, humility, self-awareness, recognition of the ultimate utility abroad of a legal education and the sustainability of long-term collaboration. Nonetheless, there are some implementation impediments in Myanmar that are noteworthy. These cover the gamut, from heavy hierarchy and centralized bureaucracy, to unpredictability in scheduling, enrollment and teacher tenure, and from a dearth of pedagogical advances to lack of autonomy and a reluctance to outshine one’s colleagues.

On the surface, democratic lingo is very appealing: References to “Access to Justice” and “Rule of Law” are as plentiful as seasonal mangoes. Even “Human Rights” is discretely uttered in certain settings. (Earlier this week we celebrated the 70th anniversary of the United Nations’ adoption of the Universal Declaration of Human Rights). Also, parenthetically, the Myanmar Supreme Court justices and influential Attorney General’s Office cadre routinely attend briefings and workshops on LGBTQI rights and gender-based violence in a country where the colonial era penal code criminalizing “carnal intercourse against the order of nature” is still enforced and the Ministry of Social Welfare, Relief and Resettlement has taken over four years to draft an Anti-Violence Against Women Law).

For almost six years, BABSEACLE (formerly Bridges Across Borders SouthEast Asia Clinical Legal Education Initiative) has been branding “CLE”—which translates either as “Clinical Legal Education” or “Community Legal Education” or both, or neither—through workshops, conferences and other activities conducted with faculty at most of Myanmar’s 18 university law departments. Government investment in higher education is slowly rising, after a period of heavy reliance on “distance education.” This mode of instruction, introduced by the military regime in 1975, was meant to address university overcrowding and allow a degree to be earned for lower tuition. It had the added advantage of preempting campus protests. Law students, in particular, were key protagonists in the pro-Democracy movement, resulting in killings and long-term school closures. Students are issued outdated textbooks and attend two weeks of intensive classes per semester, followed by an examination. Unlike its American counterpart, there is no on-line component. Formal, institutionalized learning is based on absorption of theoretical knowledge, without a focus on development of legal professional skills or ethical training. Teaching is characterized by classroom call-and-response, a mélange of Little Red Schoolhouse and Buddhist chanting. And, plagiarism and rote memorization in exam-taking are as widespread as the chewing of betel nut. Critical thinking, problem-based learning and learning-by-doing are virtually non-existent at most law faculties. As well, faculty members have no history of collegiality, as they are subservient to the department head, known as the P1. They also have had little to no contact with the outside legal sector. Law teachers themselves have been removed from the realities of justice issues, and are unable to train future graduates with the skills needed to effectively address rule of law and access to justice issues. At the same time, social justice organizations and pro bono firms have had a dearth of trained law graduate personnel to assist their clients and inform target communities.

Offsetting these ingrained features of the educational system and creating a new culture requires more than a training-of-trainers, the hasty convening of stakeholder roundtables or the signing of a memorandum of understanding with the university rector. Donor agencies have their own recipes for reform, usually well-intentioned and sometimes well-informed. In the law and development world one speaks of support, partnerships and challenges when working with academic or practitioner peers. While striving to provide genuine support, the partnerships may resemble more often a Mandalay marionette performance, given the disparity in academic background, teaching style and language between the visiting clinician and his local counterpart.

Challenges can be akin to traversing the Irrawaddy River. For instance, we are accustomed to encountering countries with centrally devised curricula, national educational protocols and administrators who operate in top-down or truly autocratic fashion. But, after a university signs an agreement with a donor or NGO partner, should the P1 be able to control all communications, handpick the students or select the teachers who will be allowed—or assigned—to experiment with new pedagogy? Worse yet, should she be able to reverse course in the middle of the academic year?  Frequent transfer from one campus to another is a fact of higher educational life in Myanmar. It ostensibly reallocates resources from popular to unpopular destinations, but seems guided more by favoritism or seniority, with no regard to one’s substantive expertise. Instructors are treated as fungible commodities, moving from one location to another mid-semester, with little notice, thereby severely reducing the corps of those already trained in a new methodology, disrupting bonding with fellow faculty or students and with no certainty that the transferees’ newly acquired skills and knowledge will be applied at the campus where they are relocated.

English is indeed the international idiom of scholarly and professional research and networking. But, why maintain the fiction that the instructional lingua franca of law school is English simply because extracts of old British Codes are sprinkled throughout textbooks which are otherwise devoid of much commentary or analysis? Although students usually have a better grasp of the language than their teachers, their books are filled with scribbled translations of whole passages. This extra layer of complexity only creates a barrier to mastering legal concepts. Finally, does the Ministry of Education actually need 45-day notice before a “foreigner” is permitted to venture onto university grounds? There seems to be no vetting of would-be agitators or a review of the visitors’ credentials. It is doubtful that the CV and agenda of each foreigner—a term as alienating as “alien” under US law—are even read by anyone. Under this pernicious permissions protocol, many a potential visit by an international clinician to a classroom or on-campus event can be thwarted if the paperwork is not timely submitted.

Notwithstanding the historic legacy and continuing obstacles, there are signs of hope. Students and faculty often embrace the new curriculum and interactive teaching with enthusiasm. A new generation is eager to engage with a world long closed-off, where individual initiative was either culturally frowned upon or politically perilous. This is also about building confidence—in oneself, one’s colleagues and students, and in the nation’s future. I find myself telling international colleagues who volunteer for on-campus short-term residencies that if they arrive with an open mind as to what constitutes clinical education, and a patience for change, they will undoubtedly add value to the enterprise and come away with new attitudes and friendships.

One of our BBP cross-cutting principles is: “Teachers are not endowed by citizenship with the authority to tell others ‘how to do it right.’ One can provide information on ‘how we do it in [fill-in-the-blank],’ but should not assume that is ‘the answer’ for how things should be done elsewhere.” Nonetheless, it’s hard to escape the conclusion that certain practices really are universal, and for a good reason. We can only hope that the “trust, respect, and mutual understanding” between teachers, which is another of our guiding principles in transnational collaboration, can eventually overcome the structural barriers that otherwise stand in the way of genuine transformation.

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Legal Stress

In a recent post, I described the intense stress that individual and organizational litigants often undergo as a result of litigation.  The legal system attracts and magnifies stressful conflicts, which affects everyone in its ambit.  In addition to litigants, this includes law students, lawyers, and legal academics.

This post provides excerpts from my research summarizing significant stresses affecting each of these groups and notes resources and ideas for dealing with them.

Law Students

Escaping from Lawyers’ Prison of Fear, 82 UMKC L. Rev. 485 (2014) (footnotes omitted) focuses mostly on lawyers’ psychology, but it includes the following excerpts suggesting that some of lawyers’ dysfunctions can be traced back to their law school experiences.

Research suggests that many lawyers’ problems arise during law school.  Prior to law school, law students generally had “relatively normal” mental health reflected by rates of “psychiatric distress, such as anxiety, depression, hostility, and irritability” comparable to the general population.  Although studies have found that law students generally are socially confident (or at least project confidence outwardly), some research suggests that this image may be a social mask hiding feelings of inadequacy, uncertainty, and nervousness in some students.  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.”

An especially well-designed study found that, as a group, law students experience serious distress in law school that continues afterward.  Professor G. Andrew H. Benjamin and his colleagues surveyed students shortly before they entered law school and found that the proportion who were depressed was comparable to the normal population.

During law school, however, 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.

Moreover, a related study found that although medical students generally experienced more distress than the normal population, law students generally experienced even more distress than the medical students.

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.”  He argues:

Very little of this stress [in legal education] is productive and just as little of it is necessary.  Modern learning theory not only provides no support for the Socratic Method as it is practiced in law schools, but also fails to support the idea, championed by the real Socrates, that education must be painful.  When subjected to stress, people tend to become defensive, constricted, and instrumental.

While such curricular and pedagogical factors certainly are plausible causes of some students’ distress, other factors (that may or may not be related to features of legal education) may be responsible for students’ distress, such as changes in personal relationships or influences from their employment.

Lawyers

The article continues …

After graduation from law school, lawyers frequently experience “psychological problems, substance abuse, depression, anxiety, and job dissatisfaction.”  In one study, researcher Connie Beck and her colleagues find that “throughout their career span, a large percentage of practicing lawyers are experiencing a variety of significant psychological distress symptoms well beyond that expected in a normal population.”  Beck estimates that “[a]pproximately 70% of the lawyers in the sample are likely to develop alcohol problems over their lifetime.”  Some of the causes of these problems may be related to aspects of legal practice including frequent deadline pressures, heavy workload, interpersonal and political conflicts in law offices, competition with other lawyers and law offices, financial pressures, ambivalence about their obligation of loyalty to clients regardless of the effect on others, and the competitive nature of adversary representation.  In particular, the adversarial legal system predictably leads some lawyers “to suspect everyone of ulterior motives, and encourages secretiveness, manipulativeness, and selfishness.”

Individual characteristics of some lawyers may contribute to their stress including “aggressiveness, competitiveness, need for achievement and dominance, low self-esteem, fear expressed through awkwardness, paranoia, and insecurity, ways of coping with anxiety, inflexibility and intolerance for change expressed through authoritarianism.”  High needs for achievement, success, and dominance can become maladaptive in practice, leading to “workaholism and perfectionism, which are at first rewarded by professional and financial success [but] when used in the extreme, however, exact a greater toll on the individual than the benefits they provide, resulting in stress, interpersonal difficulties, and substance abuse.”

The analogies between legal and military work may help explain lawyers’ patterns of stress and fear.  As legal warriors, lawyers engage in high-stakes conflict in which they fight complex battles under conditions of great uncertainty and risk.  Lawyers may crave exhilarating “highs” of victory but also fear the agonizing pain of defeat.  Lawyers must champion their clients’ interests even when the lawyers disagree with the clients’ decisions about how to handle a matter.  Most lawyers cannot act only as gladiators in adversarial adjudication but must also represent clients in negotiation, which requires a more nuanced form of advocacy, including conflict prevention as well as negotiation with clients, allies, and opponents.  For lawyers with a gladiator mindset, this nuanced advocacy can be disorienting and stressful as they may feel inhibited from responding in an adversarial manner because it may be counterproductive.  Lawyers with more of a peacemaker mindset may also experience stress, fearing that they may not adequately protect their clients in the face of hostile action by adversaries.  In such uncomfortable situations, lawyers can easily freeze, perform ineffectively, and exhibit counterproductive patterns including procrastination, tardiness, fatigue, depression, and alcohol and other drug abuse.

Legal Academics

In Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, 2013 Journal of Dispute Resolution 1 (footnotes omitted), I catalogued the following long list of pressures buffeting law schools and faculty, which I compiled from a symposium on legal education.

Law schools are facing what Professor A. Benjamin Spencer calls a “perfect storm” of pressures.  Symposium contributors identified many pressures on law schools, some of which may lead to increased practical education though some may actually limit schools’ abilities or motivations to move in that direction.  These pressures include the following.

Law School Market Pressures

  • shrinking pool of law school applicants
  • negative publicity due, in part, to misleading consumer information that exaggerates the benefits of law degrees
  • increased number of law schools, leading to increased competition between law schools to get students and between law school graduates to get jobs
  • need to maximize (or at least not fall in) the U.S. News rankings
  • high tuition levels and large student debt loads
  • reduced job market opportunities and income for law school graduates
  • demands by various constituencies that law schools do more to prepare new lawyers for practice, both for graduates working in big firms—whose clients are less willing to pay for new lawyers’ time during law firms’ traditional ““apprenticeship” period—as well as graduates working in solo practices or small firms that cannot provide much mentoring

Pressures to Prepare Students for Changing Legal Practice

  • increasing demands by clients for greater efficiency in legal services
  • increasing influence of technology on law practice
  • growth of alternatives to traditional litigation and changes in court-connected dispute resolution processes
  • unbundling of legal services
  • increasing competition from non-lawyers
  • globalization of the law and legal practice

Curricular Pressures

  • need to maximize student bar passage rate
  • interest in maximizing “coverage” of topics in courses, especially bar courses
  • skepticism by some faculty about the value of skills courses and a belief that students should learn practical skills after graduation
  • high priority for law schools and individual faculty to focus on producing prestigious scholarship, reducing time available for instruction
  • increased curricular requirements in current and proposed ABA standards

Organizational Pressures Within Law Schools

  • time pressure on faculty, staff, and administrators due to increasing work expectations
  • reluctance of some faculty to change an educational process that they believe worked well for them as students
  • competing views among law faculty about optimal educational goals and methods, which are often related to the approaches they use and their personnel status as doctrinal, clinical, or legal writing faculty
  • effects of the tenure system, which can reduce the interest and ability of faculty to collaborate
  • need for greater diversity in law schools and the legal profession

Pressures to Satisfy Students’ Needs

  • variation in students’ readiness for law school, including significant problems of gaps in professional preparation and inadequate student abilities as well as varied learning needs of digital-age, second career, disadvantaged, disabled, and international students
  • difficulty keeping students engaged in course work after the first year of law school
  • pressures on lawyers to specialize early in their careers, leading to increasingly specialized curricula

Institutional Pressures

  • increasing demands for strategic planning by law schools
  • increasing law school budget constraints
  • relatively high cost of clinical and skills courses compared with doctrinal courses
  • reduced funding from universities and law school donors.

Although law schools have faced many of these pressures in the past, the number and intensity of the pressures has increased markedly in recent years.  Recognition of the need for reform has become conventional wisdom within the legal academy, especially since the publication of the Carnegie Report in 2007.  Even when law school faculty and administrators have a serious desire to improve the practical education provided by their schools, however, the process for planning and implementing such changes can be quite challenging due to the multiple pressures that often push in different directions.

In Plain Sight

It will not shock any reader of this blog that the adversarial legal system produces a lot of contentious conflict that can be extremely stressful for virtually everyone involved.  Although people may be generally aware of this situation, they may not be aware of specific mechanisms of legal stress and the symptoms they produce.  The research summarized above can help us identify, monitor, and address these mechanisms and symptoms.

Some counterproductive conflict related to the legal system is inevitable.  Some isn’t.

There is a lot of literature suggesting ways to alleviate these problems.  My colleague, Richard Reuben, pointed to two important recent reports.  The National Task Force on Lawyer Well-Being published The Path to Lawyer Well-Being: Practical Recommendations For Positive Change and the ABA published a Well-Being Toolkit For Lawyers and Legal Employers.

The articles linked above in this post contribute to this literature, including suggestions about how to reduce stress on law students, lawyers, and legal academics.  The book that I am writing with Michaela Keet and Heather Heavin, How to Help Clients Make Smart Litigation Decisions: Carefully Assessing Clients’ Interests and Risks, will include detailed procedures for lawyers and mediators to help clients manage litigation as successfully as possible, in part, by recognizing and addressing potential stresses that clients are likely to be concerned about.

We have to talk about the bar exam

Thank you very much to the team at Best Practices for Legal Education for inviting me to blog this week.  My particular thanks to Elizabeth Murad for administering the blog, Professor Mary Lynch, Kate Stoneman Chair in Law and Democracy & Director, Center for Excellence in Law and President & Dean Alicia Ouellette of Albany Law School for hosting this blog.  It is an honor to join such a distinguished group of scholars and teachers.

We knew it was going to be a bad bar year when on Sept 14, 2018 the NCBE announced that “the national average MBE Score for July 2018” had decreased “about 2.2. points from the July 2018 average.”  And, indeed, as states have announced the pass rates based on their own individual formula of MBE plus essays plus the MPT (multistate performance test) plus their own individualized questions, the results were bad.  A lot of our students failed the bar exam.  Pass rates were down in New York, in California, Georgia, Florida, in Texas, and lots of other places.  Yet at the same time, individual schools saw significant success in raising pass rates in the face of grim news all around them.  All of this makes for glib headlines and much handwringing, but in the context of a blog post on “Best Practices for Legal Education” it is more helpful to take a step back and assess the tools we, as legal educators, have available to us in addressing bar passage in our individual schools.  I do so from my Ph.D. studies in higher education as well as from my experience as a dean, associate dean, law professor, and medical school professor.

One of my main themes this week will be to argue for individualized problem solving.  If anyone comes to you with a product to solve all your bar passage problems, I hope after this week you will be able to ask some questions about the data on which they base their claims.    Because a productive discussion of bar exam passage really rests on two questions—1. Why aren’t the students at your law school passing the bar exam at the rate they “should” and 2. What should you do about it?

I am going to use this week to share with you some of the resources available to law schools, to individual faculty members, and even to law students who want to increase their chances of passing the bar the first time.  Along the way, I hope to address some of the unhelpful myths that have arisen and to endorse a very old idea borrowed from the then revolutionary 1960s era child rearing techniques of Dr. Benjamin Spock: These are your students—and you know more than you think do.  Trust your judgement.  Ask questions.  That doesn’t mean that you can do everything yourself—it’s fine to consult with experts, but in the end addressing bar exam passage issues is a school wide effort and everyone has relevant information to add and a valuable role to play.

To get started, it’s helpful to have an overview of the players.  As a matter of foundational Constitutional Law, each state retains the power to license and regulate professionals.  (more detail here).   As a result, every state and territory has its own process for setting criteria for bar passage.   Almost every state contracts with the National Conference of Bar Examiners which develops the annual exam, grades it, and spends a lot of time explaining itself.  If you have any interest in this topic, a free subscription to The Bar Examiner will quickly bring you up to speed.

Tomorrow–how a test from the 1950’s trips up today’s digital natives (or “Do we need a Tardis to match law school curriculum to the bar exam?”)

Best Practices: What Law Schools Might Learn from one of Basketball’s Greatest Coaches, John Wooden

By: Sara Berman

Law schools are responsible for educating today’s lawyers and for reimagining themselves to also best prepare tomorrow’s lawyers—not an easy task, by any stretch. But there are lessons we may be able to learn from a perhaps unlikely comparison. In this post, we look at the law school as a “team” and ask how some of the best leadership and management advice from the legendary basketball coach John Wooden might help improve outcomes.

John Wooden and Steve Jamison’s Coach Wooden’s Leadership Game Plan for Success: 12 Lessons for Extraordinary Performance and Personal Excellence, (McGraw-Hill Education, 2009; hereinafter Wooden’s Leadership) is an easy winter break read and/or it may perhaps be reading suitable for a faculty retreat; the book’s lessons might well help law schools achieve their potential and realize far greater returns on their investments in student success. Wooden adopted many success principles; this post considers three suggestions from Wooden’s lessons, adapted to the law school context:

1.) Encourage every stakeholder in the law school “village” to view him or herself as a team member;

2.) Replace the current externally competitive model with internally driven success measures;

3.) Stress, teach, and role model characteristics such as “listening attentively” and “arriving on time”—qualities that law firms seek in new lawyers (See IAALS, Foundations for Practice: The Whole Lawyer and the Character Quotient, 2016; hereinafter Character Quotient Foundations) and character traits that, when effectively cultivated, may well help improve bar scores, employment, and the practice of law for our graduates.

I. Application of Three Basketball Success Principles to Law Schools

1. The Team

For all of us who have spent time in them, law schools feel a bit like countries: they have their own governance structure, history, cultures and customs, and even (in acronyms at least) their own language. Like many countries today, including our own, law schools are often sharply divided. Law school departments, including those that have symbiotic missions and would benefit from greater cohesion, are often siloed. An example of this is in one of my areas of expertise, bar preparation. The work of 1L doctrinal faculty and at least three departments, Student Affairs, Academic Support (ASP), and Legal Writing (LRW), are all closely aligned with student success, yet rarely do the individuals in these silos meet and plan together, or even think of themselves as members of the same “team.”

Law schools might well benefit from replacing the current siloed, “fiefdom” model with Wooden’s team-centered philosophy. Law student mastery of both doctrine and skills might improve, and bar passage rates might increase, if the stakeholders noted above (1L doctrinal faculty, Student Affairs, ASP, and LRW) joined with Career Development, students, and alumni to embrace the belief that “the star of the team is the whole team…As a coach, it was a fundamental principle of his philosophy. Even with superstars such as Kareem Abdul-Jabbar or Bill Walton, the team was the star.” (Wooden’s Leadership at 12–13, emphasis in original).

It is well known in law schools that certain faculties have “stars.” Similarly, most everyone on campus will see students who make law review or are in the top ten percent of the class as “stars.” And the ability to become a “star” is often relatively “fixed.” Star professors are likely to have been star students at elite law schools. And even a student whose final GPA has dramatically increased from a low 1L GPA “starting level” to a much higher 3L GPA “end game score” may have a fairly low cumulative GPA.

While I am in no way suggesting that any one in any school, faculty or student, refrain from any personal ambition (quite the contrary), I am wondering what would happen if everyone in a law school believed the school itself were the primary and most important star. If every student who passed 1L year, no matter the GPA, believed he or she could pass the bar the first time, and, not only could do so but believed that there was a duty to the “team” to do everything in his or her power to do so to lift up the team, what effect might that have on bar passage?

It is clearly in every graduate’s personal interest to pass the bar the first time around, but do students and faculty realize, and do law schools enforce the message sufficiently, that the success of every individual enhances the prestige of the institution? If every student believed that the moment she or he passed the bar exam, the diploma of every alumnus of the law school became more valuable, what might that change? If every “rock star” faculty member believed that it was critical to mentor less experienced faculty so that the school as a whole shined as brightly as that one faculty member did, what effect might that have on the institution and on student success?

2. Internal Competition

A law school’s bar passage rate is a bit like a sports team’s score in the big game (national championship, Super Bowl, World Series, etc.) Class rankings, forced-curve grading systems, and selected GPA-dependent honors (including law review in many schools) and other law school traditions pit students against one another.

Some believe that form of win-lose competition, which mirrors litigation in some ways, is essential to improve bar pass rates. It seems worth at least a pilot study,

however, to determine whether adopting Wooden’s definition of internally driven success might improve test scores and morale in law school.

Law students currently experience anxiety, stress, and mental health challenges in geometrically greater numbers than the general population. (See Jerome M. Organ, David B. Jaffe, and Katherine M. Bender, Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ. 116, 2016). Would it make any difference if, “What mattered most was not how [they] fared in comparison to others, but how close [they] came to…ceaseless effort in bringing forth [their] own potential,” (Wooden’s Leadership at 8).

In basketball, a scored game, where the end result matters more than anything, Wooden achieved sustained success, for decades, by not allow[ing] the scoreboard to define success. Rather, his definition centered on this: “Strive to accomplish the very best that you are capable of. Nothing less than your best effort will suffice. You may fool others, but you can never fool yourself. Self-satisfaction will come from the knowledge that you left no stone unturned in an effort to accomplish everything possible under the circumstances.” Id. Imagine how bar results might change if this were the law school culture. Imagine the difference in outcomes if “joy” were “derived from the struggle itself—the journey—because only in that great effort of preparation and performance is their great opportunity to bring forth [their] best” (Wooden’s Leadership at 67).

3. Stress character traits

Law firms want law school graduates who listen well, show up on time, are courteous to and respectful of others, and who demonstrate commitment and a strong work ethic. According to the IAALS Character Quotient Foundations study, cited above, “The lawyers we surveyed –numbering more than 24,000—were clear that characteristics (such as integrity and trustworthiness, conscientiousness, and common sense), as well as professional competencies (such as listening attentively speaking and writing, and arriving on time), were far more important in brand new lawyers than legal skills (such as the use of dispute resolution techniques to prevent or handle conflicts, drafting policies, preparing a case for trial, and conducting and defending depositions).”

Wooden demanded just these sorts of characteristics and competencies of his players—even when they didn’t seem related to the “end game.” Wooden’s Leadership includes countless examples of teaching the most minute details, “… even showing players how to correctly put on socks and lace and tie shoelaces on sneakers to prevent blisters.” The comparison in law school might be teaching students to calendar appointments, to engage in effective active listening, and to read critically. And, lest anyone think these foundations are too minor to matter or that they are beneath graduate students, remember that Wooden’s team was

comprised of all players who had already proven themselves as star players in high school. I am sure it wasn’t any easier to tell them, “Now we are going to practice tying shoes” as it is to tell law students, “Now we are going to train our critical reading skills.” But it is equally if not more important to the success of the future of law schools to teach lessons that extend beyond doctrine and skills.

What Wooden realized in return was consistent positive results. One example in the book where Wooden left two “star players” behind for a big game because they did not show up on time for the bus. This reminded me of my own classes where when a student walked in late, I would often interrupt my lesson to point at the student and declare “If this were a courtroom, your being late might well have just lost your client her home or his child custody rights.” But many faculty members say nothing to students who wander in late or spend the majority of class surfing or shopping online. Some faculty are (justifiably) fearful of retaliation in student evaluations; others are simply weary of feeling as if they want the education for their students more than their students seem to want it themselves. Either way, in law schools we generally do not hold students accountable enough, nor do we demand that they learn and demonstrate many of the basic foundations, including arriving on time, yet, again, that is a competency that Character Quotient Foundations underscores is more valued by potential legal employers than most academic knowledge or skills.

Developing promptness in our students is low hanging fruit. So is teaching active listening. Imagine the virtuous cycle that might flow from an emphasis on developing listening skills starting in 1L! Not only would graduates be better prepared for and valued by their employers, but also they would likely listen and learn more effectively in class and later in bar review—especially if they were not also “multitasking” (and thus not paying full attention). Many professors are experimenting with and assessing the benefits of banning laptops. Why not pepper classes with listening skills training such as stopping frequently to summarize parts of lessons or speaking aloud (to one’s neighbor or to oneself in a voice recording) to assess what one understands after completing certain material? I recently had the pleasure of observing a class taught by Professor Steve Friedland of Elon University School of Law who regularly incorporates such active listening and comprehension exercises into his teaching with great success in student engagement and outcomes.

II. Steps for the Future

Below are a few suggestions law schools might implement –and then assess annually to determine whether the changes are having a positive effect.

* Read the Wooden’s Leadership as a law school team (administration, faculty, staff, and students), replacing basketball with law school analogies, and complete the fill-in-the blank exercises;

* Study the IAALS Character Quotient Foundations report;

* Hold discussion groups among and between stakeholders (team members) about these two resources, encouraging discussion among faculty, staff, and administration about how we as legal educators can both teach and role model many of the foundations our students will need to be effective professionals, and among students about how they can most effectively approach their learning to become the best they can be;

* Encourage all team members to prepare a list of three attitude changes and three assessable action items that they agree to try as part of their respective teaching, learning, and/or management responsibilities, for one year;

* Assess efficacy of such changes using focus groups, town halls, anonymous comment boxes, and other agreed upon measures; and

* Meet again to evaluate the efficacy of those changes and discuss new goals the next year.

Many law schools today are as driven by the need to improve bar passage as great sports coaches are by the pressure to win championships. And law school success more broadly includes not only effective teaching and learning, but also preparing students with the competencies most sought after by employers when they graduate. Why not learn from a master—or at least test the hypothesis to determine whether any of Wooden’s lessons from basketball success are transferable to law schools.

Mid-Term Exams, One-Handed Catches, and Deliberate Practice

Wide receiver Odell Beckham, Jr., of the New York Giants has already passed into football legend and even popular culture for his ability to make remarkable, one-handed catches.  For some this might suggest that “OBJ,” as he is often called, has innate talent, which he certainly does.  But a little digging on the internet shows that he actually practices these catches, again and again and again, outside of games.  He may be supremely talented, but he also works at perfecting his craft.

Recently, in an excellent post on this blog, Carrie Sperling discussed some of the benefits of offering mid-term assessments in her law school classes. For her, offering mid-terms, when coupled with a “growth mindset,” helps propel students toward mastery of a given subject.  Sperling identifies at least three reasons for offering mid-term assessments: students learn first, “whether they are using the right strategies,” second, “whether they have put forth enough effort,” and third, the ways “they can change course in order to grow their intelligence before the final exam.”  I have also found these to be true as a result of my own use of mid-terms.  I could not agree more and wish to offer an additional reason why mid-term assessments are valuable in education generally, and particularly valuable in legal education, where students are seeking to develop a lasting grasp on material that will stay with them beyond the end-of-semester exam, hopefully throughout their careers, while also seeking to develop the meta-skill of “learning how to learn” in a profession that is constantly evolving.  In addition to developing both substantive knowledge as well as feedback on how they are going about acquiring that knowledge in their studying, mid-terms can also serve as an opportunity for students to engage in a particular type of practice, practice that has proven effective in developing mastery, and which is generally not available when a student is assigned a summative evaluation at the end of a semester.

Anders Ericsson is perhaps best known for being the source of Malcolm Gladwell’s “10,000 Hour Rule”, popularized in Gladwell’s “Outliers: The Story of Success”: the notion that anyone can be an expert at anything after 10,000 hours of practice.  But Ericsson responded to Gladwell’s claim by reporting that one becomes an expert not by just putting in those 10,000 hours, but, rather, putting in those 10,000 hours using a particular approach to practice.  The type of practice necessary to develop expertise is what he and others call “deliberate practice.” In their work “Peak: Secrets from the New Science of Expertise,” Ericsson and Robert Pool describe deliberate practice as encompassing the following components:

  • It is challenging and gets individuals out of their comfort zone.
  • It has well-defined and specific goals that “often involve[] improving some aspect of the target performance.” In other words, it is not directed, loosely, toward “vague overall improvement.”
  • It requires an individual’s full attention.
  • It includes opportunities for feedback and modification of efforts, first by a coach and then, with practice, by the individual, him- or herself.
  • It generally is overseen by a coach, someone who has the desired knowledge base and knows how to teach mastery over the subject.
  • It involves the development of effective mental models that help a person solve a particular problem; in time, those mental models strengthen, become more detailed, and their deployment becomes more habitual. (pp. 98-99)

The authors sum up the idea as follows: “Deliberate practice nearly always involves building or modifying previously acquired skills by focusing on particular aspects of those skills and working to improve them specifically; over time this step-by-step improvement will eventually lead to expert performance.”  (Id.)

Mid-terms (and lots of practice quizzes as well) help students deploy the components of deliberate practice.  In my Civil Procedure and Legal Ethics classes (large format, lecture-style classes), I have worked over the last few years to develop multiple mid-term assessments, usually involving multiple-choice questions.  At first it was a bit of a struggle.  Writing good and effective multiple-choice questions that hit the “Goldilocks Standard” is a challenge: they can’t be too hard, or too easy.  They have to be just right.  It is thus time-consuming and painstaking work.  What’s more, students did not just want exam questions, they wanted (and still want) practice exam questions too.  In order for students to really learn from the process of taking these quizzes and exams, I also wanted students to have the chance to review the questions and answers after the exam.  As a result, I could not just recycle the same exam questions each year.  Developing a repository of questions, both practice and graded, at least at first, required a good bit of work.  Over time, though, I have built up a bank of literally hundreds of multiple-choice questions in each class.  And each year, I have more practice questions to give to the students, as old graded exams become new practice quizzes, which students really appreciate.

Even though it is more work, giving students the opportunity to review the questions after they are administered helps them build towards mastery: the ultimate goal of giving them these quizzes and exams.  Moreover, the graded mid-terms themselves build on the practice questions, and I give two mid-terms each year, with the first one typically representing just ten percent of a student’s final grade.  As I write new questions for the graded exams, I often riff off of the questions in the practice quizzes, sometimes involving similar fact patterns as the practice questions, with critical facts changed that likely have an impact on the ultimate outcome of the question (e.g., changing the state of incorporation of a defendant in a civil procedure problem can sometimes wreak havoc on subject matter jurisdiction, personal jurisdiction, joinder, etc.).  This approach is, I believe, an example of deliberate practice in practice.  Students have learned how to spot the issue in one factual setting and have had to address it. When the facts change, they are challenged to not just identify the new issues in a somewhat changed factual setting but also to understand how that change can have downstream impacts on the outcome.  In addition, I can introduce more complicated problems in this way, starting from the basics, then introducing the exceptions, and finally addressing the exceptions to the exceptions, knowing that students have to crawl and then walk before they can run.  Slowly, the learning is additive.  Students learn a bit at a time, and are encouraged to review their prior quizzes and exams as often as they like to make sure the information is sinking in.  If there is some material that is challenging them, and they keep coming up short with questions that address it, they can focus in on that subject matter until they master it.  And once they do, they then can move on to new questions when the lessons from those older questions have taken hold.

Although I write my own questions, those not comfortable writing multiple-choice questions (and they can be tricky, I don’t think I’ve yet fully mastered the skill myself) can turn to commercial products for this sort of material.  In my Civil Procedure class, I have recently enlisted the help of a commercial entity, ExamSoft, that has begun to make a bank of multiple-choice practice questions available, aligned with the material in the text I use for this course, Stephen Yeazell’s “Civil Procedure” (which also contains practice, multiple-choice questions throughout).  This Law Class Feedback program does cost students money, but, for those faculty who prefer writing more traditional essay-style exams, which still certainly have a role to play in legal education, these commercial multiple-choice questions can supplement and complement the material students are asked to deal with throughout the semester, assist student learning, and build mastery through deliberate practice.  It also contains excellent data analytics that can show an instructor how the students are doing with particular questions and subject matter.

While I certainly believe this approach is helpful in large-format classes, where individualized feedback can sometimes be a challenge, this type of practice is not just reserved for multiple-choice-style questions given to students in those classes.  In seminars I teach, I also use deliberate practice, as students work throughout the semester and prepare multiple drafts of papers they will present at the end of the semester.  They then practice their final presentations of those papers until they can really deliver their material in an engaging and professional manner.  For this type of work, deliberate practice is also particularly useful, and students gain a great deal through the cultivation of their writing and public speaking skills; they also start to understand how much work a professional puts into the generation of great written work product and an impactful presentation.  (If of interest, I have written about the use of deliberate practice in my Law and Social Innovation seminar here.)

Long gone are the days (thankfully), when a student’s law school grade was determined by how he or she performed on a single exam at the end of two semesters in a year-long course.  As more and more law faculty move toward formative assessment through mid-terms, students can learn to master the material and start logging those 10,000 hours. This mastery can serve them well, and well beyond the exam, as it is critical to the development of their own professional identity as they learn substantive knowledge.  But it also teaches them to learn how to learn, a critical skill a lawyer must deploy throughout his or her career.  This type of deliberate practice is a means to an end, for sure, but also an end in itself: a process which, should they master it, can serve students well as they engage in a life and career in the ever-changing world of legal practice. We do call it “the practice of law” after all. And the more deliberate we can make that practice, the better.

Mid-terms Matter

It’s mid-term season. While we all have elections on our minds, many of our students are thinking about mid-term exams. Mid-terms have become more popular as formative assessment in law schools increases. Mid-terms can be an effective, somewhat low-stakes experience that closely mirrors the experience of the final exam. That’s important because many of our first-year students have never faced the kind of exams we traditionally give in the law school setting. And research shows that students turn in better performances when they practice for high-stakes exams under similar conditions.

It’s possible that students don’t like the added stress that mid-terms bring, and it’s equally as possible that professors dislike the stress of delivering valuable but often hard-to-swallow feedback about their students’ performance.

Law schools, by design, are competitive. Therefore, assume that students will be using their mid-term results to judge themselves. This crucial time in a student’s first semester calls for evidence-based feedback.

Decades of research demonstrates that at least half of our students will become demotivated when faced with a disappointing result. That’s because they believe that just one exam is a judgment on their intelligence—how much they currently have and how much they can expect to have in the future. These students have what researchers call a fixed mindset. When these students ace their first exam, they go forward feeling confident in their performance and their ability to continue their success with the same amount of effort. When these students are not as successful on their first exam, they tend to believe that they just don’t have what it takes to be a high performer. They often disengage and under-perform because they believe the die has already been cast.

Fortunately, not all students see exam results the same way. For students with a growth mindset, the mid-term is not a judgment of what kind of law students they are, how intelligent they are, or how well they can expect to do in law school. The exam result is exactly what it’s meant to be—a way to gauge their current performance and rethink their learning strategies. These students believe that intelligence grows through effort and effective strategies. They will see your feedback, good or bad, as helpful information that will prepare them for a better performance on the final exam.

The good news is that students’ mindsets change based on the information they receive through teachers, coaches, and their environment. So what messages should faculty give students as they assess the mid-terms? Students should understand the purposes of taking a mid-term are to learn: (1) whether they are using the right strategies, (2) whether they have put forth enough effort, and (3) how they can change course in order to grow their intelligence before the final exam. Professors who share stories of their own struggles and their strategies to overcome them create a classroom where learning thrives. When professors show how they developed effective strategies in learning, they invite students to do the same. Students will more likely accept the feedback with gratitude and use the feedback in the way it was intended, to increase their learning and develop strategies for demonstrating their knowledge when the stakes are much higher.

“Hum”s in the Classroom

Today I had the opportunity to learn from my students. I started my class with some commentary about the Project on Integrating Spirituality into Law And Politics (“PISLAP”) conference I attended last week at American University’s Washington College of Law–my alma mater. I told the students I learned much about cultivating a learning atmosphere that recognizes our shared humanity and cultivates learning by dialogue. As I began, though, a front row student pointed out that I had misspelled the word “blackboard” on the blackboard, by writing it as “blackboad.” Laughing at myself along with them, I explained this was a perfect way to begin–with humility.

The PISLAP conference, I told the students, was rich with dialogue about the use of humility for law professors, and the ways we can learn from our students and from other actors in the legal system and in higher education to best deliver a solid legal education that also values empathy and positive outcomes.

My very minor contribution at PISLAP, as I shared in class today, was the “notecard” system that another law teacher at another school generously shared with me. I give each student an index card on Day One of my Professional Responsibility class. Students turn in their cards with a note to me explaining what they want to do with their law degree, and one fact about themselves that might surprise us. It humanizes the bodies in the room and breaks down barriers to the rich dialogue that a law school classroom otherwise can thrive on. I share each student’s “note,” if they consent, sometime during the semester during class. Today we learned that one student can wiggle both ears independently as well as simultaneously, one has never lost a staring contest, and that same student wants to “help and serve others” after law school. That last one hit me hard. Our students are grappling with many challenges, and most of them are in law school for reasons that boil down to wanting to do something positive for this world and their fellow humans. Naming that in a Professional Responsibility classroom with the student who wrote it nodding in affirmation was a powerful moment. This is why we do what we do, or at least why I do what I do.

Later in today’s class, another “hum” word provided our closing theme. This one was harder. I shared a conflicts of interest anecdote from my own experience. Years ago, in private practice, I mistakenly missed spotting a potential conflict in the first instance, and had to resign from the case early in the representation as a result. I explained that although my staff “should” have discovered and screened out the conflict earlier, that I take ultimate responsibility as the lawyer–and that they should as well. I stressed that my primary regret was that the client had to find new counsel and deal with the mental stress of the turn of events.  I also shared that my secondary regret was my own humiliation. I felt terribly ashamed, and contrite, but it was appropriate that I dealt with those feelings and moved on. My humiliation]was a lesson in humility, and humility is a pretty decent North Star for lawyers. I urged my students to approach their careers and their law school studies with humility–it’s intrinsic to our Professional Responsibility.

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