Friday, November 25, 2005
Session number four of the six-week "How to Respond to Law School Exams" workshop series I host each year includes a video featuring Kent Syverud, a Vanderbilt Law Professor and Dean. (Dean Syverud has recently been named Dean of the School of Law at Washington University in St. Louis, effective Jan. 1, 2006.)
Dean Syverud explains how to handle nearly any exam question a student might encounter, including what he calls "the weird" question.
Recently, I discovered the unedited version of this video is online!
Law students in their first year or fourth, can all benefit from Dean Syverud’s advice.
Suggest to your students that instead of watching a one-hour TV program during the next few days, they consider watching/listening to Dean Syverud coach them through exams! Here is the link to the video (courtesy of the University of Michigan Law School), and supporting text. (djt)
Tuesday, November 22, 2005
In keeping with the holiday, I'll say that I am thankful for something that makes our students' lives miserable in the first year. I know that sounds sadistic, but stick with me for a minute, and I'll try to explain.
What I am thankful for is the maddeningly elusive and generally misunderstood art of "thinking like a lawyer."
First-year students become deeply frustrated by the phrase while we faculty throw it around with abandon. "Thinking like a lawyer." We'll teach them, we say, to think like lawyers; but we seldom define exactly what we mean — as if, like obscenity, they'll know it when they see it.
The problem, of course, is that they do not see it clearly at all in the first months of law school; and what they are attempting to see and eventually master is quite different from what many of them have ever seen or attempted in their lives to this point. The difficulty is compounded by popular notions of lawyers as clever tricksters who bend and twist words to mean whatever the lawyers wish them to mean. (See the Nov. 20 posting, "Looking Before One Leaps" for some insightful observations about the corrupting influence of such notions.)
So what is learning to "think like a lawyer" and why is it so hard to master? Well, let me suggest a definition that may help answer those questions: learning to think like a lawyer is learning to think with exacting precision about human relationships and human events. It's a loaded definition.
It means defining as precisely as possible where duties begin and where they end. It means determining the exact contours of rights and the precise limits of privileges. It means carefully and methodically tracing causes and effects at levels of precision lay persons seldom consider, at least in terms of human conduct.
It also means doing this type of thinking — difficult in its own right — alongside the even more difficult and foreign art of text-based reasoning. Most of our students have never been asked to interpret text with any sort of rigor or precision. Most have sat through endless high school and undergraduate "discussions" of literature that were little more than pooled ignorance. Most were never taught to analyze and interpret text with any demonstrable accuracy or precision. Most were never required to prove, using the text itself, that what they believe it says is what the author actually intended to convey. Most were taught that if to them, the central lesson of Macbeth is to avoid ambitious women, then that is what Macbeth means because, after all, that is what it meant to them.
Judges and lawyers won't put up with that nonsense. So our students must abandon their trust in their own gut reactions and lazy musings and learn to think clearly and precisely about human relationships and human events, even when those relationships and events defy clarity and precision; and they have to do it using a language riddled with vagueness and ambiguity.
Perhaps it is this demand for precision despite the unavoidable imprecision of human language and the profound complexity of even the simplest relationships that creates the impression of cleverness for cleverness' sake. Lawyers are forced to press logic to its breaking points to determine where its soundness ends, and judges are routinely forced to choose between equally compelling arguments that rest on equally compelling moral imperatives placed in tension by an accident of the human condition.
From a comfortable lay world of imprecise thinking, our students are thrust into a world where every argument is vigorously examined for flaws and missteps and where every proposition must be supported carefully and completely. They find a world where notions of justice are challenged, dissected, and pressed to reveal where they hold up and where they do not.
No wonder our students find law school so daunting. No wonder they lose confidence in their intellectual abilities for a time and even in their sense of justice and injustice.
It falls to us to combat the discouragement and cynicism that so easily overtakes them. The task falls to us because we know that despite what cynics say or bad results imply, most legal thinking is done, in the end, by most lawyers and most judges, to promote justice in human affairs. Lawyers may cynically growl that justice is not what is likely to occur in court, but precious few believe that justice does not matter or that the causes for which they themselves plead are unjust.
Truly learning to think like a lawyer is a profoundly good thing. Without those who are willing to devote themselves to the intellectually and morally hard work of defining precisely the contours of justice, the nation is left to the murky reasoning of casual thinkers or, worse, to the calculated thinking of those who have no moral bearings.
So we have a duty to help our students understand what thinking like a lawyer is and what it should be. Some, of course, will fail altogether to master it; and some will master its mechanics without seeing the moral substance in which it must be rooted.
Most, however, will learn to think like lawyers in the best sense of that phrase. Because of them, our profession will always be something more than a collection of tricksters and illusionists.
That's something to be thankful for; and here's another: we have the privilege of helping them get there. Not a bad way to spend our lives, is it? (dbw)
Monday, November 21, 2005
This is the time of year to think about all we are thankful for. I am more than thankful for the health and happiness of my family and friends. I am also thankful for the file I keep in the middle drawer of my desk.
What is in this file? Notes, printed e-mails, wedding and baby pictures -- all from students. I do get quite a few notes from the moot court board thanking me for skewering their various members (by means of judging moot court rounds -- I am known to be quite vicious!), but the personal notes and other messages from students are the ones that go into my file and stay in my heart (I get so hokey around this time of year...).
I have e-mails from students saying they passed the bar. I have Christmas cards from former students: you know, the picture kind that show their growing families. I have a few wedding pictures, one in particular from a former student who asked me to help decide on bridesmaids' dresses (her mother had died immediately before she began law school, and I like to think of myself as a full service academic support professional). They all looked so happy. I have birth announcements, and I hope to add an adoption announcement really soon.
I have personal, handwritten notes from students who came and cried to me or had me write them recommendations or asked me to call someone on their behalf. I treasure these. I can always find my file of "thank you's," but I cannot always place my hands on my last performance review.
So I guess I am, in my ASP persona, most thankful for being thanked. I am thankful that I have a job where I can possibly make a difference in someone's life. I am thankful you read my ramblings; but above all, I am thankful this semester is almost over. Have a wonderful Thanksgiving!!!!(ezs)
Sunday, November 20, 2005
Of course, I should have brought along the digital camera to take a group photo. Kris Franklin (pictured, right) organized another wonderful NY-centered worskshop on Friday, November 18.
Academic Supporters from Maryland, Pace, NYLS, Touro, Hofstra (see Richard Neumann, at right) , Quinnipiac (see Gail Stern, at left), Roger Williams, Fordham and Cuny gathered to discuss, learn and work together.
You shoulda' been there! Suzanne Darrow-Kleinhaus and Myra Berman taught us how to use "IRAC Diagraming" to help students "...see IRAC in action." Fabulous.
Mark Padin sparked a discussion about LSAT/diversity-minority/bar-pass issues, concerns and controversies ... not the least of which was the mandatory vs. voluntary participation controversy, which led ... as you would expect ... to the stigma/backlash controversy. Mark not only offered his own comments and experiences, but distributed material documenting the disturbing fact that "minority representation among law students has dropped for the past two years, from 20.6 percent in 2001-2002 to 20.3 percent in 2003-2004" (based on ABA statistics).
[By the way, one of the articles Mark handed out was from a publication you may be unaware of: Minority Law Journal Student Edition. This particular article featured the FIU and FAMU attempts to "increase the legal profession's diversity in Florida." ed.]
Kris Franklin ran us through a drill which required us to analyze two (actual) students' exam answers, then discuss how to best help each student. For this part, I passed out four-color pens, and explained the Dan Wilson (see tribute to Dan by his Denver students) method of helping students analyze their own answers. Kris provided a typed transcript of her detailed voice recording commentary that she delivered to the student (a method which provides the opportunity to offer detailed, lengthy and – one would hope – more helpful advice to struggling students).
Note to workshop participants: consider writing a short version of your impressions of what went on during the workshop, and I'll post them here. Send them as an attachment. (djt)
Does this make you think? Like a lawyer? ...
Law students are told on every possible occasion that they must learn to think like a lawyer, and since they are eager to become lawyers and trust their teachers, they are eager to lend their mind to legal thinking. But the problem, as briefly noted here, is that they are given no instruction as to the powers and pathologies associated with legal thinking, or to the possibilities that clients may pursue. The logic seems inexorable: to be a lawyer you must think like a lawyer, to think like a lawyer you need a Legal Mind, to acquire this mind you must submit to teachers who know how to help you train for and develop this kind of mind-set. Law school provides a logic, a kind of thinking, and the mind willing to do it. But like Hippocrates, the law student, seems oblivious to how this Legal Mind might shape her character, or what might happen with the persistent use of such a mind.
Professor Elkins builds on the work of others, adding his own gloss to earlier writings warning of the dangers inherent in a legal education. He notes, for example, the words of UCLA's Professor of Law Emeritus Paul Bergman (photo below, right)...
Whether lawyers are heroes or bums, our culture often views courtroom lawyers as deviously clever tricksters. Perhaps good lawyers have the ability to master mountains of evidence and the patience to prepare for trial by endlessly culling through depositions. But the best lawyers can outsmart their adversaries, bamboozling witnesses and capturing the fancy of judges and jurors, with parlor tricks. Paul Bergman, Pranks for the Memory, 30 U. S. F. L. Rev. 1235, 1235-1236 (1996)
From time to time, we need to put our work into perspective. (djt)