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.

How Can We Fix Legal System Failures to Properly Handle Sexual Offenses?

Over the past year, we have witnessed growing evidence of the massive failures of our legal system to deal properly with a rampant system in which powerful men sexually dominate others, especially women.

This post describes the nature, magnitude, and consequences of a long-term history of criminal and civil sexual offenses in the US and how the legal system has contributed to the denial of access to justice, enabling these offenses to be perpetuated.   This post suggests how law professors might use increasing awareness of these problems to ask students to reflect about how the legal system can fix these problems and what individual lawyers might do when representing clients in cases involving sexual offenses.

Massive Sexual Crime Wave

With publicity about gross violence perpetuated by powerful men like Harvey Weinstein, Roger Ailes, and Bill Cosby, among many others, there has been an increasing awareness of how pervasively they have been able to take sexual advantage with impunity.  There have been a stream of stories about such men in virtually all walks of life and of different political persuasions.  After the “dam burst,” with a series of  revelations about prominent men, it might have seemed as if all men “do it,” though that’s obviously not true.

The flow of credible allegations has unleashed a flood of stories by victims at every level of society about a wide variety of offenses committed by men, famous and not.  Most prominent have been the stories of Dr. Christine Blasey Ford and others who accused now-Justice Brett Kavanaugh of committing sexual offenses as a young man and lying now about his behavior back then.

These events have prompted many women to recall and describe offenses that happened to them a long time ago that they told few, if any, people, and often never reported to the police.  Washington Post columnist Monica Hesse wrote a poignant essay about the varied reasons that victims are afraid to tell people how they were harmed: “Dear Dads: Your Daughters Told Me about Their Assaults.  This Is Why They Never Told You.”

These personal stories are reflected in statistics about the problem.  According to the Rape, Abuse & Incest National Network, almost 400,000 Americans are sexually assaulted each year and a sexual assault occurs, on average, more than once every two minutes.  Most victims do not report their assaults.  Here’s an excerpt from the National Institute of Justice website.

The Bureau of Justice Statistics (BJS) reports that the majority of rapes and sexual assaults perpetrated against women and girls in the United States between 1992 and 2000 were not reported to the police.  Only 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported.  Reasons for not reporting assault vary among individuals, but one study identified the following as common:

  • Self-blame or guilt.
  • Shame, embarrassment, or desire to keep the assault a private matter.
  • Humiliation or fear of the perpetrator or other individual’s perceptions.
  • Fear of not being believed or of being accused of playing a role in the crime.
  • Lack of trust in the criminal justice system.

In the NIJ funded Sexual Assault Among Latinas Study (SALAS), it was found that victims did not commonly seek help from the criminal justice system, but did seek informal sources of help such as family and friends.  However, one third of the women included in the study did not report their victimization to anyone.

Washington Post reporter Andrew Van Dam summarized data about consequences of sexual offenses: “Less than 1% of Rapes Lead to Felony Convictions. At Least 89% of Victims Face Emotional and Physical Consequences.”  This article also stated, “The specter of false accusation looms large in the backlash chronicled by [Philip] Rucker and [Robert] Costa, but a 2009 review of research from around the world, based on credible sources, indicates only between 2 and 8 percent of all sexual assault reports were false.”

To summarize, there has been a massive crime wave for a very long time in which victims  are understandably terrified to report the crimes and virtually all offenders have escaped accountability and legal sanction.  Indeed, for survivors, participating in the legal system itself can become a form of re-victimization.

In a forthcoming book about how practitioners should help clients assess their interests and risks in litigation, Michaela Keet, Heather Heavin, and I describe litigation stress generally and particularly in cases of sexual offenses.  Based on their extensive research, here’s an excerpt from an early draft of the book:

Victims of sexual assault and sexual harassment may use civil litigation to achieve important goals, though the strains of the process can extract significant physical and emotional costs.  The emotional vulnerability of sexual assault and harassment victims can be exacerbated by the anxieties of litigation.  These parties often enter the litigation process with reduced feelings of safety, autonomy, and self-worth.  Many sexual assault victims engage in civil litigation as a response to a crisis, such as a nervous breakdown or suicide attempt.  The ordinary stress of litigation is magnified by the necessity of discussing traumatic events and possibility of facing the assailants in court.  Women who engage in sexual assault litigation often report poorer adjustment at work and at home.

Sexual harassment litigation may exacerbate or perpetuate symptoms developed as a result of the original harassment.  The physical symptoms related to sexual harassment may include gastrointestinal disturbances, jaw tightness and teeth grinding, nervousness, binge eating, headaches, inability to sleep, tiredness, nausea, loss of appetite, weight loss, and crying spells.  The emotional responses to harassment may include anger, fear, depression, anxiety, irritability, lowered self-esteem, feelings of humiliation and alienation, as well as a sense of helplessness and vulnerability.

Plaintiffs may experience the litigation itself as a “crisis event” and may not have the psychological and emotional resources or skills to manage it.  Because parties are coping with the original harassment, they may be ill-equipped to take on the added burden of litigation stress.  Participation in sexual harassment litigation is associated with higher levels of PTSD symptoms, as well as lower levels of life satisfaction.  Women currently undergoing sexual harassment litigation more often exhibit demoralization, anxious arousal, fear, and self-blame.

Considering the huge risks of litigation (including many risks not listed above), it is not surprising that many victims learn to bury and repress memories of the crimes.

Our legal system enables offenders to get off without punishment or even publicity.  Powerful men who commit these crimes use lawyers to draft binding pre-dispute arbitration clauses and non-disclosure agreements to muzzle the victims.  Typically, the offenders are rich and powerful and the victims are poor and weak, so they are easily intimidated.  In many of the recent cases, offenders have lost their employment and suffered damage to their reputations, but almost all have gotten off without criminal punishment and have retained their wealth.  Because many of the acts occurred long ago, they are barred by statutes of limitations.  In any case, it would be difficult to clearly prove many of these cases because the evidence is stale and witnesses may not be available or would be afraid to testify truthfully.  And most victims think that the risks of engaging the legal system would far outweigh the potential benefits.

The Damage Wrought by the Kavanaugh Confirmation Process

The process used to investigate the allegations against now-Justice Kavanaugh demonstrates and perpetuates the problems I just described.  Although it was a legislative, rather than litigation, process, supporters of Justice Kavanaugh created a false narrative using litigation concepts.  This not only completely discredited the process in his situation, but it also spread false ideas about the legal framework for handling allegations of sexual offenses.

Of course, people will read the preceding paragraph with our increasingly polarized partisan biases.  As you read the following analysis, try using the de-biasing technique of considering the alternative – what we often call role reversals.  If the Democrats were in power and used the same approach as the White House and Congress did in this situation, would your conclusion differ?  Would the Republicans complain as much or as more as the Democrats have – or would they consider the process to have been fair and legitimate?

Justice Kavanaugh and his supporters portrayed him as a victim of false accusations and a political conspiracy.  This is a remarkable narrative considering that he was credibly accused as a serious offender who falsely denied the claims.  Justice Kavanaugh’s defenders falsely claimed that there was no corroborating evidence.  They imply that the only relevant charge is whether he assaulted Dr. Blasey Ford and that corroboration is limited to eye-witness testimony.  In fact, there is a serious issue whether Justice Kavanaugh made false statements under oath at his confirmation hearing, and she provided numerous sworn statements of people who she had told in the past about these events, which is a form of corroboration.  The Kavanaugh defenders also imply that these allegations of sexual assault would be insufficient without corroboration, which is not necessarily true.

Part of the deception was caused by the misleading narrative that this process was like a criminal trial in which the accusers had the burden of proving Justice Kavanaugh’s guilt beyond a reasonable doubt.  In fact, it was a legislative proceeding to determine his fitness to be confirmed under the Senate’s Constitutional advise and consent responsibility.  Framed that way, the standard might be whether there would be sufficient doubt to deny the confirmation, which is not an entitlement of the president or nominee.  In other words, the proponents of the nomination reasonably should have the burden of proof beyond a reasonable doubt – the exact opposite of what Justice Kavanaugh’s supporters claimed.  In my view, even if there wasn’t certainty that the allegations against him were true, if there were reasonable doubts about his truthfulness or fitness, it would be wrong to confirm him.

If Justice Kavanaugh and his supporters really wanted to establish the truth and restore his reputation, they would have insisted on a thorough independent investigation.  The Judiciary Committee hearing and FBI supplemental investigation obviously were designed to be inadequate so that they could be used to justify the decision to confirm him.  The Republicans’ bad faith is demonstrated by their determination to plow through Justice Kavanaugh’s nomination in a rush, without necessary investigation, after having decided not to even consider President Obama’s nomination of Judge Merrick Garland.  Moreover, the FBI was instructed not to interview many people who claimed to have relevant evidence.  Obviously, this was not a fair or legitimate process.

Unfortunately, this process sends a signal to victims of sexual offenses that they have good reason to fear talking about or reporting offenses committed against them.  Doing so exposes them to the risk of losing their privacy, dignity, reputation, opportunities, and material resources.  They may be ignored or re-traumatized – and the perpetrators are likely to get off scot free anyway.

On the other hand, these episodes have encouraged many people to reflect on their own experiences of sexual victimization.  This may stimulate demands for improvement and mobilization by survivors (and their supporters) who are furious about their treatment and that of Justice Kavanaugh’s accusers.

A Teaching Moment

Regardless of one’s views about the Kavanaugh situation, it should be clear that there has been a massive, long-standing failure of our legal system to protect victims of sexual offenses and punish the offenders.

Our country needs to radically improve this system.  Of course, this is much easier said than done.  People in power who have benefitted from a system usually do not give up power and agree to change without a struggle.

Putting aside the major practical problem of how to coalesce the political will to adopt and implement changes, it would not be easy to design a new system, considering the complexity of the problems and potentially competing legitimate interests.

Law professors could use this situation to ask students to identify the interests involved and how they should be addressed in designing a fair and legitimate system for encouraging survivors to get protection and compensation and for deterring and punishing sexual offenses.  (For some ideas, see this article listing reforms adopted this year in various sectors of society.)

Law professors can ask students how they would act if they represent someone who had a credible allegation of a sexual offense – or who has been credibly accused of a sexual offense.  For some students, it might be tempting – but naive – to simply advise victims to pursue a legal case or to advise actual perpetrators to admit guilt and accept full responsibility.  Real life is much more complicated than that.  Realistically, what would they do?

When plaintiffs bring such claims, they often end up negotiating confidential settlements with the defendants.  While both parties may want to make confidential settlements, they may be inappropriate in some situations, effectively covering up serious offenses.  When is it appropriate – or not – for lawyers to assist clients in negotiating these agreements?  What if the defendant is a serial offender?  I addressed these questions in this post.

Considering that a significant proportion of our population has been the victim of sexual offenses, it is important to be aware that some students may experience flashbacks or other traumatic reactions when discussing these issues.  Providing advance notice and an opportunity to opt out should be helpful.

Of course, this is a teaching moment for all of us, not just law students.  The coming weeks and months will show what we have (and haven’t) learned.


Storytelling, Social Media, Legal Education and the Law

Let me tell you what I wish I’d known

When I was young and dreamed of glory

You have no control

Who lives, who dies, who tells, your story.

Lin-Manuel Miranda, “Who Tells Your Story”


Late last week, two women confronted U.S. Senator Jeff Flake as he was entering an elevator when the Senate was considering how to proceed on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.  These fearless women, Ana Maria Archila and Maria Gallagher, both survivors of sexual assault themselves, confronted Flake and asked him how, by effectively ignoring the testimony of Dr. Christine Blasey Ford, he could silence the stories of countless victims of sexual assault who heard in Dr. Ford someone who told a credible story, one that was all too familiar to them.  Their passionate plea seemed to have worked, at least for the time being, and convinced Flake to pressure the Senate to agree to re-open the FBI investigation into the allegations against Kavanaugh.  This was, perhaps, the most powerful and effective “elevator pitch” in the history of elevator pitches!

Senator Flake is no stranger to these sorts of confrontations.  Last year, as Congress was in the midst of passing a massive tax cut that would have ramifications on health care throughout the United States, he was approached while on a plane by activist Ady Barkan, who works with the same organization as Ms. Archila, the Center for Popular Democracy.  Barkan, who is, himself, stricken by ALS, or Lou Gehrig’s Disease, asked Flake to consider the effects of Congress’s action on the lives of millions of Americans, including his own.  What Barkan, Archila and Gallagher were able to do was tell their personal stories to an individual in power, persuasively, personally, and with great and unbridled passion.

I do not know if elected officials have faced these sorts of interactions in the past.  It is safe to assume they have.  President Lincoln was known to receive visitors at the White House from people looking for patronage jobs or mothers asking about their sons who were off at war.  But never before have we had the ability to broadcast these interactions, practically in real time, and spread them, virally, through social media.  And it is this ability that is re-aligning power, placing new tools at the disposal of lay advocates and professional advocates alike.  It is what has helped to shape the discourse and allow people to not just tell their stories, but also to pass those stories along, instantly, and throughout the world.

The ability to tell stories, to bind people together, and to help them imagine a better future and the steps necessary to bring that future to fruition is what Yuval Noah Harari calls “mythical glue.”  For Harari, this ability sets us apart from other species; indeed, it’s what makes us human.  For the late Robert Cover, storytelling and narrative shape the law and even society itself. Now that we have the ability to connect over these stories like never before in human history, we also have the power to influence society by telling powerful stories in unfiltered, unmediated ways.

Just as the law, and, in turn, society, are shaped by stories, so, too, is the legal profession founded on storytelling.  Indeed, lawyers tell stories all the time: to juries, to judges in their briefs and in court, sometimes even to the press.  Storytelling is an essential part of lawyering, and judges are susceptible to effective stories.  A poorly told story, one that has gaps, or does not resonate, is not an effective form of advocacy.  As the Supreme Court found roughly twenty years ago in the case Old Chief v. United States:

A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Lawyers, as advocates schooled in the arts of persuasion, have long told stories, but, traditionally, they have been the masters of their clients’ stories, sometimes portraying their clients in ways that the lawyers thought judges or juries might want to hear, too often describing clients as victims rather than individuals with agency, as masters of their own lives and destinies.  Legal scholarship, including Critical Race Theory and Poverty Law Theory, has embraced the notion that clients should not only control and shape their stories, but should be invited to tell them as well.

Law students too can master their own stories.  In a recent press conference in Washington, DC, organized by students of Yale Law School to protest Judge Kavanaugh’s nomination, students found their own voices, and spoke, powerfully, about what a Supreme Court with Kavanaugh as the swing vote would mean for them, their families, and millions of Americans.

Today, a lawyer does not have to control her client’s story, or the means through which it is told.  Advocates and clients have new tools at their disposal to shape and spread their own stories, but can also be the ones telling them.  Lawyers should step aside and work with clients to help them tell their own stories, their truth, in powerful and persuasive ways.

As law professors, we should look to maximize opportunities to introduce client voice and student experience directly into the pedagogy, through flipped classrooms and other methodologies—like project-based initiatives and clinical teaching—that place students and clients at the center of the educational experience.  As part of that education, students should also experiment with new tools of communication that facilitate disintermediation: that powerful phenomenon that allows the clients to speak directly to each other, to those in the halls of power and authority, to those in the broader community who might be allies, and even to adversaries.  In reality, though, our students, digital natives, are probably better at the use of these tools than their professors and have a lot to teach us about their effective use in advocacy campaigns, as the students from Marjory Stoneman Douglas High School and many young people across the country are proving.  The importance of these new means of communication in contemporary times cannot be overstated. Indeed, when the President of the United States can now send a text message to every American with a cell phone, the tools of communication have never been more powerful, and the stakes, perhaps, never higher.

Ensuring law students understand effective storytelling in legal advocacy should always be at the core of a legal education, whether explicitly or implicitly.  (I prefer making it explicit.)   What is more, placing students in positions where they can begin to experiment and work within the new media landscape, to develop competencies in these areas and empower clients to tell their own stories, should also be an essential component of legal education today and tomorrow.

In a recent piece in the Southern California Interdisciplinary Law Journal I explore some of these issues and the role of new media tools in helping to decentralize and democratize storytelling in the law.  Please read it here.  Feedback always welcome.

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