February 24, 2013
Leave Your Point of View at the Fact Pattern Door: Part 2 of 2 (Guest post by Seth Aiken, UMass Law)
In the first installment of this post, I suggested that for some law students, life experience and a strongly held point of view can get in the way of law school success. “Older” students, having lived and worked and experienced a little more than most of their peers can tend to let their own point of view and perceptions about the world interfere with legal reasoning. Rather than seeing the legally significant issues in a fact pattern, they focus on the implausibility of the facts and how unlikely or unfair a scenario seems in the context of their own experience or personal values.
With these students, my strategy is to have them start by adding a 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 want them to remember that a fact pattern is a closed universe and that adding facts or injecting personal insights into it will only derail their best efforts.
Then I give my students five steps for looking at a fact pattern and drawing out the legally important issues:
- Call of the Question – Start at the end of the exam and read the call of the question so you understand what you are being asked to do.
- Acts – Rather than trying to spot and analyze whole issues, start instead by reading the fact pattern sentence-by-sentence and highlighting any act or failure to act by a party – anything someone in your fact pattern says, does, or chooses not to do.
- Resist Judgment – You do not have enough information yet to know whether any of these acts give rise to a legally significant issue. Resist making any judgment about whether the act is relevant, worthwhile, good, bad or otherwise because all you know right now, is that somebody said or did something.
- Elements – Assuming you studied and know all the elements of every issue you might be tested on, go to each act and consider if it could be one element of an issue. Remember, don’t skip or overlook an act just because it seems like a little thing. The seriousness or severity of the action doesn’t matter. Whether you think the action would lead to a legal action in real life doesn’t matter. What matters is whether that act in the fact pattern, taken at face value could satisfy one element of something you are being tested on. On the other hand, you don’t want to force an issue that simply isn’t relevant. Some facts ARE there to tempt you into a time-wasting, grade-crushing wild goose chase. In order to stay on target, ask:
a) Is the issue you’re thinking about within the testable universe? (i.e. DO NOT analyze a Criminal Law issue in a Torts exam.)
b) Is this issue relevant to the call of the question? (i.e. DO NOT discuss the rights of B vs. C when the question is asking only about the rights of A vs. B.)
c) Are there other facts that satisfy each of the other necessary elements to make out this issue? DO NOT speculate about other elements based on your common sense or some past experience.
Success vs. Relevance – This is the fifth and final step I ask my students to think about because I want the word “success” to trigger a few different cautionary flags.
The success of the issue: Just because a complaining party has a weak case (weak elements) and is likely to lose doesn’t mean the issue isn’t worth raising. If you can make a good faith, “straight-faced” argument that each of your elements is supported by some fact or facts, it is probably a relevant issue, win or lose. In fact if you can make a good faith argument that MOST of your elements are supported by facts, you should raise the issue. Weak facts or a missing element bear on the success of an issue, but are never a reason to not raise it. Being able to explain to your professor why an issue fails is just as important as being able to show why an issue succeeds.
The successes a student brings into the exam: You are walking into the exam with a point of view based in your life experience. Your successes and accomplishments have equipped you to identify and solve many challenging problems, to relate to people and empathize with their circumstances. HOWEVER – here in this exam, you must leave those successes and accomplishments behind. Relating to the people in your fact pattern and empathizing with their circumstances will distract you from seeing what is relevant and keep you from engaging in effective legal analysis.
Seth-Thomas Aitken, UMass School of Law - Dartmouth
June 14, 2011
The "one size fits all" flaw
ASP'ers know from their daily discussions with law students that there is a great deal of diversity within a student body. Law schools as entities, however, sometimes ignore that law students are unique from one another more than they have ever been before in legal education.
- Some law students come to us straight out of undergraduate school. Some law students worked for years before undergraduate school. Some law students worked for years after undergraduate school. Some law students have graduate/professional degrees already.
- Some law students are single parents. Some law students are married. Some law students are married with children. Spouses may be working or stay-at-home. Some law students are responsible for the care of parents, grandparents, or siblings.
- Some law students are 20-something. Some are 30-something. Some are 40-something. And some are much older.
- Law students are visual learners, verbal learners, aural learners, oral learners, kinesthetic learners, tactile learners, or any combination of these styles.
- Law students are global thinkers, intuitive thinkers, sequential thinkers, sensing thinkers, and pairs of these processing styles.
- Some law students have learning disabilities, ADHD, visual impairments, mobility impairments, or other characteristics that result in their having accommodations.
- Some law students are battling chronic illness, financial problems, family problems, or personal problems.
- Some law students want to practice. Some want to be law librarians. Some want to go into business. Some have no idea what type of law career they want.
- Some law students have English as a second language. Some law students have weak writing backgrounds. Some law students are deficient in math skills.
In short there is NO one size fits all for law students. Yet, so many types of decisions track what has been done in the past rather than consciously considering today's student body characteristics. Diversity in students can affect a myriad of areas including:
- orientation schedules
- class schedules
- tutoring times
- make-up class schedules
- review sessions for exams
- teaching methods
- testing methods
- support services
- emergency loan programs
- school-sponsored insurance
- curricular options.
(By the way, do not assume that one type of law school automatically does a better job on these decisions than another type. All law schools could do better on decision-making with diversity in mind - some may be farther ahead in this type of input, but none is perfect.)
So, why is it that well-meaning law schools sometimes make decisions that ignore the differences? In this day and age, I doubt that it is because of a lack of knowledge regarding all the different aspects of diversity. Instead, I think the decisions occur because of:
- budget cuts ("if it is across the board, everyone suffers equally" or "we never provided that support service before"),
- lack of planning ("we need to move now on this idea" or "we can worry about that later"),
- insensitivity ("it has always been that way" or "there are not a lot of students with that problem"), or
- lack of information from students telling us when there is a procedure or policy adversely affecting students ("five of us had child-care problems and couldn't attend that make-up class" or "international students run into extreme health care cost problems because the school insurance plan is not required").
Don't misunderstand me. I am not saying that law schools need to change everything just because some students desire things to be different. I am saying that we need to consider whether there are characteristics of our students that we are missing when we make decisions. We can then at least weigh possible implications for learning and success and determine whether there is an appropriate modification that would work better than the way we had planned/always done it.
After-the-fact information from several students, for example, has made me re-think how I will schedule make-up classes next year. I want to try some new delivery methods to reach more students with scheduling conflicts. Several expertise areas are ones that I need to investigate to be more helpful to my students with disabilities. And I want to find ways to integrate my students' prior experiences in Europe into my EU course. (Amy Jarmon)
January 11, 2007
Diversity and Doctrinal Courses
At last week's meeting of the AALS Section on Academic Support, the audience was asked to share with one another ways in which doctrinal professors could inject diversity considerations into their classes. One fairly simple assignment I have used in my course, Legal Aspects of Higher Education, has received a very positive reception from students, so I thought I would share it with you.
As one would expect, part of the course is taken up with covering affirmative action at the college and university level. To introduce the material, I give the following assignment three or four weeks in advance, timing the due date to coincide with the beginning of our discussion of affirmative action.
Assignment: Choose three persons, all of the same race or ethnicity as one another, but of a race or ethnicity different from your own. Consider choosing across age ranges as well. Interview each separately regarding that person’s views and personal anecdotes regarding affirmative action and race. Summarize each interview briefly and write a two- to three-page essay summarizing your own reactions or new insights based on all three interviews.
Students are generally surprised at the diversity of thought among just three people chosen at random from an ethnic group other than their own (they shouldn't be, but they are), and they gain new and more rounded perspectives on the controversies, complexities, and passions associated with affirmative action.
The approach could be used with a variety of topics in a variety of courses, so you might consider incorporating it into one of your classes. The depth of insight the students bring to the table after this exercise makes it well worth their effort, and they seem to really enjoy it. (dbw)
June 30, 2006
One of the problems that often plagues ASP programs is the stigma that can attend students' participation in academic support efforts. Because academic support at the undergraduate level is usually directed at those students who are struggling in their studies, law students often perceive ASP programs as remedial in nature, reserved for those who cannot perform adequately in law school without special help.
As a result, those students who participate in the programs, often at the urging of the school, find it tough to shake the perception that they are not as smart or as qualified as their peers. That perception does double damage: it lowers the ASP participants' confidence in their own abilities, and it leads to the fear that others will regard them as less capable than typical law students. The effect is magnified for minority students who must already face the mentality among some students and faculty that most minorities ride into school on the backs of affirmative action programs rather than their own abilities.
One way to lessen the stigma so often associated with ASP programs is to widen the target group from "at-risk students" to the entire student body. In other words, the program can be based on the proposition that all students can use help transferring their existing academic skills into the peculiar demands of law school.
Few students arrive at law school knowing how to read and brief cases effectively, create useful outlines and flowcharts, etc. Most are forced to develop those skills through a kind of "accidental curriculum" made up of unpredictable relationships. A few are fortunate enough to have family and friends who have been through law school to help them uncover the best approaches. A few others arrive having had the good fortune to have been trained through earlier pursuits in the art of text-based analysis and reasoning.
Most just have to wing it until they stumble across model outlines or other study helps that may be floating out there in the law school ether. Whether what they stumble across is actually helpful is mostly a matter of luck. As result, the average law student is a much less efficient and effective learner than he could be.
Given those realities, an ASP program can be promoted as relevant to all students' law school efforts and can become accepted as merely another piece of the academic life of the typical law student. I like to tell my students that law professors rightly "hide the ball" when it comes to what the law means, because learning to find what the law means is the primary skill lawyers must possess. There are no tutors out in the practice. As for how one learns to find what the law means, however, I see nothing useful in hiding the ball. While every student must learn to outline her courses for herself, she needn't develop the skill out of thin air. While every student must learn to answer law school exam questions for himself, he needn't discover the best approaches by trial and error on real exams.
So I aim my program at all students on the theory that all students could learn the law more deeply and effectively and develop their analytical skills more efficiently if they did not have to spin their wheels trying to discover effective learning techniques with no guidance. In my estimation, an ASP program should serve to deepen the legal discourse among the entire student body by moving all students as rapidly as possible down the road of effective class preparation and review. To the extent that the program causes all students to engage the material in their classes more effectively and efficiently, it shifts the focus of the entire enterprise to deeper and more meaningful discourse about the law itself.
To further that goal, I have decided to send a letter this summer to every incoming first-year student, introducing them to the school's ASP program and telling them that I expect them to come to school having already read a text I use extensively in the program. I have also told them that I will be emailing each of them early in the semester to talk about how they are implementing the techniques and principles I will be presenting in ASP lectures. By taking the attitude that participation in ASP programming is normal and expected, I hope to eliminate the perception that only some students need instruction in the skills the program presents.
My goal is that every student will take advantage of ASP instruction so that their energies can be expended more effectively and efficiently from the outset. I hope that all students will more rapidly clear the elementary hurdles of learning how to prepare for class, examine and organize what they have begun to learn, and identify their gaps in learning. In doing so, they will be freed to enter into a level of legal discourse often missing among the majority of law students not only in their first semesters but through much of their law school careers. (dbw)
October 20, 2005
Is Academic Support Just Academic?
I often have students who make appointments to discuss more than just how to brief, outline, or take exams. They often want to talk about what is going on in their classrooms besides just substantive law and academic skills development. Students recognize (as should we) that Academic Support involves more than just academic skills assistance. Other things in a student's life will affect their academic performance. One of those, I think, is whether they feel welcomed by faculty and other students, and part of a community. That is, after all, one point of recognizing the importance of educational diversity in Law School. I have included a link to a piece I have written that addresses one type of diversity often not discussed: ideological diversity. What can Academic Support professionals do about promoting ideological diversity in the Law School community to make students feel more welcome and less isolated (and should they)? While I do not have a solution, recognizing this issue is an important beginning. Indeed, as my most long-time client says, "The solution to your problem often lies in its description." Please consider my observations at this link: Role Models.
Perhaps I am being churlish: it is difficult being part of a tiny ideological minority (particularly when, outside of academia, I am in the majority). However, as Academic Support professionals we can certainly track whether idelogical intimidation or just rudeness, particularly toward conservative students, is commonplace in our classrooms, and at least remind our colleagues how it can affect academic performance. (mwm)
August 05, 2005
This week I am in Milwaukee at the AHEAD (Association of Higher Education and Disability) annual summer conference.
Watch for posts in the coming days about issues we all face ... helping students with visible and invisible disabilities cope with the rigors of the law school curriculum. The conference includes presentations by attorney disability specialists from the Office of Civil Rights and private firms, as well as a plethora of presentations and workshops hosted by Disability Support Specialists (example: Dr. Jane Thierfeld Brown from University of Connecticut School of Law) bringing us up to date on the latest law, technology and trends in providing academic support for this segment of our diverse students.
In the coming posts, I will acquaint you with some of the lessons I have learned, and provide direction about where to turn when you run into a difficulty in handling situations in this area. (djt)