A Cool Course Assignment and A Scholarship Opportunity

This post suggests that you might want to assign your students to interview a lawyer about an actual case and it provides some materials you could adapt if you are interested.  I realize that it is probably too late for you to incorporate this into your courses this semester, but you might want to do so in the future.

This idea grew out of a symposium I organized at the University of Missouri Law School about improving negotiation theory.  Two of the speakers, David Matz and Adrian Borbély, wrote an article arguing that too little negotiation theory is based on detailed analyses of actual negotiations.  I wrote a short essay agreeing with them and suggesting, among other things, that academics interview negotiators to collect and analyze detailed accounts.  Then it occurred to me that law students could do this as a course assignments.  I am particularly interested in research about negotiation, though you could use the same process to do interviews about virtually any aspect of legal practice.

Although this assignment might seem particularly appropriate for courses focusing on practical skills, it could be valuable in one focusing more on legal doctrine.  As an illustration, Stewart Macaulay’s classic article, Non-Contractual Relations in Business: A Preliminary Study, was based on his interviews with automobile executives who helped him understand how real-world business often deviated from what Macaulay taught in his contracts class.

You could require each student to interview a lawyer for up to an hour about a recent negotiation.  You could set the parameters of the assignment in terms of the types of cases, questions to ask lawyers, and content of the summaries.  These assignments could be fairly short papers that count for a small portion of a grade or longer papers that count for more.  Indeed, if you want to make this a bigger part of students’ learning, you could require students to do several interviews.

This assignment would have several benefits.  First, it would give students experience learning about actual cases that lawyers have handled, advancing the goal of preparing students for real-world practice.  Second, students would get a chance to practice interviewing, a difficult and critically-important generic skill.  Lawyers regularly interview people about sensitive matters and must develop rapport to get the candid information they need.  Third, it would give students a chance to practice protecting confidentiality.  Students would need to assure the lawyers they interview that they would not disclose certain matters, and then students would convey key information in their assignments while avoiding disclosure of unauthorized information.

Using Student Interviews for Your Research

Although most faculty would do this purely as a course assignment, you might want to use these papers as the basis for your own scholarship.  Many law faculty are curious about how people act in real-life legal situations, as distinct from principles from black letter law, theoretical analyses, anecdotes, “common sense,” etc.  They are tempted to do some empirical research, which they often assume requires surveys with large samples.  Not so.

As explained in my post, What Me – A Social Scientist?, this is a common misconception.  Moreover, doing good survey research is much, much harder than most novices realize – and is likely to produce less useful data than they expect.  The good news is that you can do very valuable research involving relatively small samples of semi-structured interviews like the ones described above.

If you assign students to conduct these interviews solely as a class assignment, presumably you would not need to get this approved by the Institutional Review Board (IRB) at your school because it would not be considered as research.  Of course, if you do plan to use these papers for your research, you would need IRB approval.  If in doubt, check with your IRB.

I described these ideas in more detail in a post on the Indisputably blog.  In a later post, I provided documents you could adapt for this assignment.  These documents include the assignment itself, guidance for students in conducting and writing up interviews, and model solicitation letters and should be useful in getting IRB approval.  Although you shouldn’t need IRB approval if this is purely a course assignment, these documents are useful in any case because they reflect good, ethical research practice.

 

 

 

 

 

 

 

 

 

 

PUBLIC OPPOSITION TO JEFF SESSIONS RESULTS IN AN OPEN RECORDS REQUEST

Along with 1,400 other law professors, I signed a letter opposing the nomination of Jeff Sessions for Attorney General of the United States. As a law professor, I signed this letter because of my concerns about maintaining the integrity of the legal system.

Shortly after the law professors’ letter was published, my university counsel’s office got an Open Records Act request seeking my emails.

The request, from a reporter working for a conservative political publication, sought: “a copy of each email (inbound, outbound, deleted, or double deleted) for the university email accounts of Andrea A. Curcio and [a colleague who also signed the letter] from the dates of December 15, 2016, to and including January 3, 2017, which includes any of the keywords “Sessions,” or “Jeff Sessions” or “Attorney General.””

A similar request was sent to university counsel for law professor signatories working at other public institutions.

Open records requests are a key to governmental transparency. Being personally subjected to one is unnerving.

How do you avoid such a request if you work at a public law school? You stay silent. Non-involvement with anything in the least bit controversial helps protect you from the possibility that anyone will ever ask to see the content of your emails.

I have often asked myself the theoretical question: if I had lived in Nazi Germany, or in the McCarthy era, would I have remained silent or would I have taken the risk and spoken up. That question is no longer theoretical.

Celebrating Martin Luther King, Jr. Day reminds us of the courage of those who stood up for what they believed was right. Today we again have a very visible choice about whether to step off the curb or to let fear silence us.

 

DO LAW SCHOOLS ADEQUATELY PREPARE STUDENTS FOR PRACTICE? SURVEYS SAY . . . NO! – Robert Kuehn, Washington University School of Law

Under ABA Accreditation Standard 301, law schools have two educational objectives: prepare their students “for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” There has been much concern lately over declining bar passage rates, focusing attention on whether some schools are admitting students who may not be capable of passing the bar exam and whether a school’s program of legal education adequately prepares its graduates for the exam.

In focusing on the bar exam, it’s important not to lose sight of legal education’s primary duty of ensuring that law school prepares students for entry into the legal profession and a successful career. If studies of practicing lawyers and recent law graduates matter, it is clear that law schools are failing, even worse than in preparation for bar admission, to adequately prepare their students for legal practice.

A 2012 study by the National Conference of Bar Examiners (NCBE) analyzed the job activities of newly-licensed lawyers to determine which knowledge domains and professional skills and abilities are most significant to their job. Acquisition of professional skills and abilities were deemed significantly more important to newly-licensed lawyers than legal knowledge — 25 skills and abilities were deemed more important than the highest rated knowledge domain. The percentages of lawyers using these 25 skills in their work (all rated between 89% to 100%) also were all greater than the percentage using the highest rated knowledge domain (86%). Yet these skills and abilities generally are not developed in traditional doctrinal law classes but in the experiential and first-year legal writing courses that, under the ABA standards, need only account for ten percent of a student’s legal education.

These important skills and abilities are also a small part of the bar exam, which purports to measure competence to begin the practice of law. Although the NCBE study was promoted as the basis for further development of the exam, since the study’s completion the portion of the exam devoted to testing skills remains the same (the 3-hour Multistate Performance Test). The NCBE’s only apparent response to the study’s dramatic finding that professional skills and abilities are what new lawyers need most for competent practice was to add civil procedure (the study’s highest rated knowledge domain) to the Multistate Bar Exam.

A report released this year by Educating Tomorrow’s Lawyers reinforces the disconnect between legal education’s overwhelming focus on legal knowledge and the competencies new lawyers need. A study of more than 24,000 lawyers in 50 states sought to determine the foundations entry-level lawyers need to launch successful careers in the legal profession. The study found “that characteristics (such as integrity and trustworthiness, conscientiousness, and comment 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.” Yet, again, only in clinical and first-year legal writing courses are there efforts in the law school curriculum to address the “soft skills” so necessary for the success of new lawyers.

These two studies mirror the findings of decades of earlier studies. In a 1978 study, mid-career lawyers rated the importance of 21 types of legal knowledge and skills in their daily work and the role of their law school training in attaining that knowledge or skill. With the exception of knowledge of statutory law, none of the eight areas of legal knowledge was considered very important for their work. In contrast, six of the methodology and skills areas were deemed of great importance.  When then asked to rate their law schools’ role in developing skills, two-thirds said their school had been “not helpful” or “played no role” in their ability to develop essential practice skills like interviewing, counseling clients, and negotiating; more than 40% said law school failed to train them to draft legal documents or effectively communicate orally.

A later study of Montana lawyers came to similar conclusions. It asked what level of competence a lawyer should have to perform in a professionally competent manner and what level of competence they observed first-year lawyers to have. The results indicated the need for greater emphasis in law school on the development of professional skills and the importance of character traits to a new lawyer’s successful transition to practice. A 1993 study of Chicago and Missouri lawyers found large gaps between the skills lawyers deemed most important to their practice and the attention law school paid to those skills, especially in the areas of oral and written communication, drafting legal documents, problem solving, negotiation, fact finding, counseling, and litigation. The lawyers believed that a majority of these practice skills could be learned in law school, if the focus of legal education were changed. A similar study of Minnesota lawyers found most did not believe they were well prepared immediately following law school on nine of seventeen important practice skills. Like respondents in other studies, those lawyers believed these skills can be effectively taught in law school.

More recent studies have not reflected any improvement in the role of legal education in preparing graduates for practice. The American Bar Foundation’s After the JD study tracks the careers of a sample of lawyers who passed the bar in 2000. It asked lawyers three and seven years of out of school if “law school prepared me well for my legal career.” On this fundamental objective of legal education, law schools failed miserably — 40% of lawyers after three years of practice and 50% after seven years said that law school did not adequately prepare them. Both groups overwhelmingly agreed that law school was too theoretical and unconcerned with real life practice. In another study of early-career lawyers, only 28% believed that law school prepared them to practice law.

Two studies by LexisNexis reinforce this view. In a 2009 survey, 90% of attorneys in private practice and corporate law offices said that law school does not teach the practical skills needed to practice law today. A similar study six years later found that legal education has not improved, contrary to the claims of some legal educators and regulators. In the 2015 survey, 95% of hiring partners and senior associates who supervise new attorneys responded that recently graduated students lack key practical skills at the time of hiring. The lawyers also believe its not a matter that law schools cannot teach these skills but that they simply refuse to do so: “Most attorneys involved with hiring and management of new lawyers agree practical skills can be effectively honed through clinics, internships, clerkships, and experience in actual or simulated application to a case.”

Law students who just graduated realize their need for more practical training — 87% say legal education needs to undergo significant changes to better prepare future attorneys; 97% favor a law school model that incorporates clinical experience. Judges agree. When asked what change would most benefit law schools, judges of all types of court (federal and state, appellate and trial) rated more coursework on practice-oriented skills the highest, far exceeding support for expanding the core curriculum.

Fifty years ago the dean of the University of Chicago School of Law stated that the aim of law school “is not to train lawyers, but to educate men [and women] for becoming lawyers.” If the attitude of the ABA and law school deans has changed since then, it isn’t reflected in the readiness of law school graduates for practice when over 90% of lawyers give legal education a failing grade. So while educators worry about declining grades on the bar exam, isn’t it also time to fix legal education’s longstanding failure to meet its duty to adequately prepare it students “for effective, ethical, and responsible participation as members of the legal profession”?

Do You Want to Engage Students More in Class? Consider Prohibiting Laptops.

Pace Law Professor Darren Rosenblum published an op-ed in the New York Times describing his experiences with and without laptops in his classroom.

He wrote, “When I started teaching, I assumed my ‘fun’ class, sexuality and the law, full of contemporary controversy, would prove gripping to the students.  One day, I provoked them with a point against marriage equality, and the response was a slew of laptops staring back.  The screens seemed to block our classroom connection.”

He then described what probably all instructors know these days, that many students are distracted by their online world and don’t pay attention in class.  He reported observing a colleague’s class, where he could see that many students were shopping online or surfing Facebook.  His article cites research consistent with these concerns.

After banning the laptops, he found that, “With constant eye contact, I could see and feel when they understood me, and when they did not.  Energized by the connection, we moved faster, further and deeper into the material.”

I prohibited laptops in my classes and found that students were much more engaged.  Banning laptops also reduced distraction by nearby classmates as well as my own distraction watching student clack away, obviously not related to the class discussion.  When I mentioned my policy at a faculty meeting, several colleagues enthusiastically endorsed this idea based on their own positive experiences.

About 25% of syllabi posted on the Dispute Resolution Resources in Legal Education website either prohibit or restrict use of laptops.

If you prohibit laptops, some students may resist, coming up with all sorts of cockamamie reasons why using laptops really promote their learning.  Although there can be some merit to these pleas, I think we all knew that they mostly wanted the freedom to mentally check out of class without detection.  Fortunately, most students accepted this policy without complaint, especially if it was presented decisively.  Indeed, I think that some students actually were relieved to be protected from this addictive form of distraction.  It probably also helps if a critical mass of colleagues at your school have the same policy so that it doesn’t seem as if you are just a single mean old Luddite when all your colleagues allow laptops.

If you are going to ban laptops, you should also prohibit use of cell phones except in emergency.  You probably have had the experience of seeing students appear to be fascinated by their laps as they check their phones beneath their desks.  I told students that they should let me know if they had a particular reason why they needed to check their phones.  For example, one student’s wife was expecting to deliver a baby and he wanted to know if he needed to rush to the hospital.

Here’s the language I used in my syllabus (including the following link): “You may not use laptop computers in class.  After many years of allowing students to use laptops in class, I decided to prohibit them because they distract students too much.  You may not use smartphones or other electronic devices in class except if you may have to deal with an urgent matter (such as a medical situation of a relative).  If you anticipate needing to deal with an urgent matter, please let me know at the beginning of class.”

It also helps if you provide students with some of the material of your presentations so that they don’t need to madly transcribe all your words of wisdom.  Even before I banned laptops, I posted on TWEN outlines of the class material for the day, which I think that also helped students focus on the class discussion.  Part of the trick is providing enough detail so that students have confidence that your notes provide the basic information they need but not providing so much that they feel they can get all they need just by reading your notes without paying attention in class.

Have you banned (or restricted) laptop and/or cell phone use in your class?  If so, what changes, if any, did you observe?

Best Legal Education Articles of 2016

At Tax Prof Blog, Scott Fruehwald has posted the Best Legal Education Articles for 2016. You can find it here. Cognitive science themes play a prominent role in the list, as well as interesting articles on professional formation by Louis Bilionis and assessment by Adam Lamparello. On the topic of professional formation, I would add Neil Hamilton and Jerry Organ’s article Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity. Add your “best of 2016” in the comments.

Teaching Self Reflection

Self reflection is a valuable skill which should be taught across the law school curriculum.   Engaging in self reflection will serve students’ life long personal and professional development.  While self reflection is perhaps not the first topic that comes to mind when thinking  of a typical law school curriculum,  it may be one of the most important, as self reflection aids learning in all areas.  To reflect, we process information, synthesizing and evaluating data with the hope of translating what we’ve learned about ourselves to contexts beyond the original situation in which we learned.  That is what lawyers do with every new client or situation.   Shouldn’t we teach this important skill alongside others fundamental to lawyering?

Students may not have thought concretely and specifically about their learning processes prior to entering law school. They may view their academic successes and failures as isolated and unrelated events.  However, upon reflection there likely are threads which run through those successes and failures which could prove instrumental to further development.  Law school requires higher order thinking, which may not have been required of students before.  To allow students to develop these abilities, in addition to teaching black letter law, we must also teach students to reflect:  on their work to enhance its meaning and on their experiences to encourage insight and complex learning.

While self reelection might appear to be an inward and solitary process, that is not always true. Reflection can be enhanced by thinking about our learning with others and the classroom is a perfect place to introduce it to students.  In fact, the ABA has opined in relation to revised standard 302(d) that self evaluation may be one of the “[o]ther professional skills needed for competent and ethical participation as a member of the legal profession”. While clinicians have been teaching self evaluation and reflection for some time, it is a skill which can be taught and practiced in any law school classroom.

Some easy ways to introduce self reflection into a class include:

  1.  Ask students to complete a self reflection of the content of their graded work–what did they do well, what do they plan to improve upon, etc.  This helps students to actively internalize their role in the learning process, rather than being passive recipients of grades and information.
  2. Have students reflect on the process of doing the work itself– what came easily, what did they struggle with, and why.  This allows students to become better learners as they implement changes in response to their own observations. This can be done in writing or orally in class if time permits.  If your class is too big to allow every student to share their reflections, have students volunteer or randomly select a sampling of students.  This way students can also appreciate others students’ learning process.
  3. After students receive a graded assignment back and have had time to review it, have students comment on something they have now “learned”, after looking back at their work.  To the extent a common thread appears in the students’ reflections, the teacher can identify topics with which students may have collectively struggled.  The teacher can model self reflection by commenting on how their teaching of those topics could be adapted in the future.  Even better, the teacher should continue to reflect and make appropriate changes as needed.
  4. One of my favorites:   I ask my students to identify questions they wish they had asked me before an assignment was due. This helps students once again recognize that they are not merely passive recipients of information, but rather, that they can and should control the process and seek guidance when appropriate. If they recognize this, it will allow them to ask for help and take charge of their own learning more appropriately in the future.

Bilingual Legal Education for Spanish-English Speakers

A few years ago, I wrote a piece for the Journal of Legal Education asking whether it was time to think about providing bilingual education in the United States (see S.I. Strong, Review Essay – Bilingual Education in the United States: An Idea Whose Time Has Come, 64 J. Legal Educ. 354 (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2884836).  In that piece, I noted that although the longstanding connection between law, language and the state traditionally led law schools to provide legal education in a single language, contemporary lawyers are increasingly likely to need foreign language skills in both domestic and international settings. As a result, I suggested that U.S. law schools might consider taking steps to improve U.S. lawyers’ ability to operate in multiple languages, as is routinely done in a number of European nations.

This is not to say that U.S. law schools do not offer courses meant to help students achieve fluency in the legal language of other jurisdictions. Some do.  However, U.S. law schools lag far behind their European counterparts in this regard.  Furthermore, U.S. legal educators suffer from a lack of resources for instructors of foreign legal language courses and from the absence of any discussion about what constitutes best practices in the field.

Some help in this regard may be forthcoming as the result of the work of the International Academy of Comparative Law, which will be considering bilingual education in 2018 at its upcoming World Congress in Japan (see http://iuscomparatum.info/recent-news-test-2/).  Various members of the American Society of Comparative Law will be in attendance at that meeting and will hopefully be able to bring back some ideas about how U.S. law schools can improve their curricular offerings.

In the meantime, however, there is a resource already available to those teaching across the Spanish-English linguistic divide that provides a new, potentially revolutionary approach to bilingual legal education. Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing, Ltd., 2016) (see http://www.e-elgar.com/shop/comparative-law-for-spanish-english-lawyers) is an entirely bilingual text that goes “both ways,” as it were, so as to help those involved in teaching legal Spanish to native English speakers (as would be the case with many J.D. candidates) as well as those involved in teaching legal English to native Spanish speakers (as would be the case with certain foreign LL.M.s).

The goal of the book is to help those who are conversationally fluent in a second language achieve legal fluency in that language while also contextualizing the analysis in a comparative paradigm.  The text was co-written by Professor S.I. Strong of the University of Missouri, Professor Katia Fach Gómez of the University of Zaragoza and Professor Laura Carballo Piñeiro of the University of Santiago de Compostela to offer practical, doctrinal and linguistic insights into a variety of English- and Spanish-speaking jurisdictions, thereby providing comparisons not only across the Spanish-English divide but also within each language.  Given the nature of this particular language pairing, the book necessarily addresses various issues resulting from the differences between the common law and civil law, although the discussion is not limited to that type of binary analysis. The book is suitable for both group and individual study, and provides useful tips for academics, practitioners and law students.

Hopefully books like this will not only help those who are currently interested in Spanish-English bilingual legal education, they will also trigger a larger discussion about both the need for and the shape of bilingual legal education in the United States and elsewhere. Indeed, that sort of conversation seems long overdue.

 

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