Friday, February 22, 2013

Leave Your Point of View at the Fact Pattern Door: Part 1 of 2 (Guest Post by Seth Aiken, UMass Law)

For some law students, life experience and a strongly held point of view can be immense stumbling blocks to law school success.

I began to think about this last semester working with several students in my 1L class. Relative to the majority of law students, these students were older, which is to say they had lives after undergrad – careers, families, mortgages and other “grown-up” milestones. Each came to law school with a clear point of view, seeing his or her world through a lens of experiences, beliefs and ideals accumulated over years. One student had been a nurse and another was a university librarian. One had struggled with substance abuse and one student, already a working mother of four young children had recently earned her undergraduate degree.  When I met these students it was clear that each was rightfully proud of where they had been, or at least what they had overcome to get here. They remained very mindful of and connected to the lessons learned in former lives and seemed hesitant to loosen their grip on those memories for fear of losing themselves in the disorienting new world of law school.

As I worked with these students on ways to approach hypothetical fact patterns, I noticed that many had great difficulty issue-spotting. They focused rather on the implausibility of the fact pattern and how unlikely or unfair a scenario seemed in the context of their own experience or personal values. Most often, talking with a student about why he or she didn’t raise a certain important issue in his or her practice answer, I would find out that the student saw the issue, but chose not to raise it, deciding that in “real life” nobody would seriously go to court over those facts, or that it didn’t make sense to spend time discussing an action that would be obviously unsuccessful. Years of engaging in moral reasoning and practical life decision-making seemed to have handicapped these students’ ability to engage in effective legal analysis.

This challenge posed a difficult conundrum.  In order to support my students, I needed to connect with them, earn their trust and demonstrate that I sincerely understood and valued who they were and where they had come from to get here. On the other hand, I had to ask them to look past those valuable former-life lessons and experiences in order to develop the analytical flexibility required to succeed in the law.

So my compromise solution has been to adapt an essay exam strategy that capitalizes on the likelihood my students would focus on the story and the actions of the parties in a fact pattern before recognizing the legally significant issues.

I start with one general instruction:  Always, always always add a single phrase to the beginning of the first sentence of every essay question, “On an island that you’ve never been to and where no visitors ever go…(essay question begins).  I remind them that fact patterns exist in isolation, as if on an island. No facts can be added and no additional facts are needed. They must also be mindful of the island’s inherent hostility and distrust toward visitors, outside opinions or new perspectives. A student’s point of view and common-sense life lessons, while personally valuable and hard-won, will prove confusing and unwelcome if brought to the island and applied to the facts.  With this simple, starting prompt, I hope to remind students, whether they are prone to mix life experience with legal reasoning or not, to keep an objective mind about the fact pattern so that they, in turn, don’t  lose the objective of the exam.  The additional tools I give students to avoid this pitfall and others will follow in a later post.

 

Seth-Thomas Aitken, UMass School of Law - Dartmouth

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