Tuesday, July 15, 2014

The Importance of Teaching Problem Solving in Law Schools

I have long been in favor of using the problem-solving method as a major teaching tool in legal education. While most of the courses I took in law school used the Socratic method or a lecture approach, a few courses, Tax, PR, UCC, and Bankruptcy, employed problems to a significant extent. I felt that I learned more in these courses than in my other courses because the teaching approach engaged me more in the class.

When I became a legal writing professor, I, of course, used the problem-solving method because problem solving is essential to doing legal writing projects. I also came to see the importance of problem solving in doctrinal courses because active learning helps students remember doctrine better than the Socratic, case method, and it helps them develop the ability to use doctrine. This view was reenforced by the publication of Best Practices and the Carnegie Report, as well as by numerous conferences I have attended on legal writing, legal skills, and legal education reform. I have concluded that problem solving should be a significant part of every doctrinal course.

Kathy Vinson’s new article on problem solving (here), which I discussed on this board last Friday, includes an excellent discussion on the importance of problem solving as a teaching tool in law school.

Professor Vinson’s major reason for stressing the importance of problem solving is that law practice is about the client. Problem solving makes graduates "client-ready," while the Socratic, case method does not. Professor Vison writes, "Upon graduation, students should not continue to think like students instead of thinking like lawyers engaged with the problems of their clients. Problem solving requires students to engage in and grapple with the nuances and messiness of a client’s problem, and possess an open mind to consider solutions outside of the law."

She continues, "While legal education may not be able to fully prepare students for the practice of law, instruction in problem solving can better prepare them and maximize their learning experience for success as law students and as lawyers. Legal education can better prepare students to solve client’s problems effectively by incorporating problem solving into the curriculum so they can engage in deeper understanding of the law and transfer what they learn to solve new problems in familiar or unfamiliar practice settings. Problem solving instruction in law schools can enhance students’ development as legal professionals and better prepare students for the challenges of today’s legal practice. As proactive problem solvers, students may also become more marketable."

Professor Vinson declares, "Legal education should focus on the client and how to use the law, theory, and skills to help a client solve her problem. Furthermore, students often work alone in law school in a competitive and sometimes isolating environment, yet, in practice, collaborative teamwork is essential. Finally, although professionalism, professional identity, and high emotional intelligence are critical skills to develop strong client relationships and succeed in practice, law school often does not discuss or develop these areas."

She then makes an important observation: "Unlike the Langdellian case method, which focuses on appellate cases and introduces students to client’s problems at the end— instead of the beginning—of the case, the problem solving method starts at the beginning of a case—before a student knows all the facts, learns the client’s goals, narrows the issues, clarifies the identity of the client, and considers the options. The case method only gives examples of how others, i.e., a judge, resolved the client’s problem; instead of focusing on judge-centered thinking, problem solving focuses on exposing students to lawyers’ thinking processes and their roles. A problem-solving approach also involves collaborative work and creative thinking." (emphasis added)

After reviewing various calls for using problem solving as a part of legal education reform, Professor Vinson mentions the cognitive deficiencies of many new law students, especially considering that law schools have been digging deeply into the applicant pool since the recession. She notes that "Problem solving requires self-regulated learning. . . Problem solving challenges prior learning and creates a cognitive conflict between understanding the law (i.e. the rules of evidence) and understanding how the law is a tool to solve a client’s problem (i.e. using the rules of evidence as a tool). Students should be taught how the underlying principles of problem solving skills/strategy allow for deep learning as that skill transfers to different types of problems. Problem solving requires students to engage in high levels of thinking." She adds, "Problem solving requires sophisticated cognitive skills of practicing lawyers, such as: identifying a client’s problem; proposing and evaluating solutions; developing a plan of action; implementing the plan; and reflecting and adjusting to information, ideas, and results. Problem solving skills build on more basic cognitive skills (i.e. lower levels of the pyramid) and require students to deal with complex, ambiguous problems, and analyze, synthesize, and evaluate to create solutions." In addition, "Problem solving provides a conceptual framework that allows students to transfer their learning and apply what was learned in one context to another." Moreover, "Adult learning theory suggests that students learn more, better retain information, and contextualize the material in active learning situations like simulations and exercises." Finally, problem solving helps students develop metacognition–the ability to think about thinking.

Problem solving can also help students overcome a fixed mindset–the notion that intelligence is fixed and that one cannot improve on the intelligence one is born with. Professor Vinson asserts, "Some students who may not excel on a traditional law school exam or when called in via the Socratic method may excel in experiential courses, such as problem solving, where they focus on the application of skills in a different way or different skills are critical to success, beyond book knowledge. By excelling in problem solving, a growth mindset is fostered, which can lead to future success." Those that criticize the Socratic method for how it affects women and minorities should be especially attentive to this idea.

The problem-solving method also helps deal with Millennials, who were raised on the internet. Vinson points out, "As a result of helicopter parenting, Millennials find it difficult to deal with ambiguity, may lack creativity, and avoid risking failure. In problem solving, they must embrace these."

Professor Vinson summarizes the benefits of a legal problem-solving approach to legal education: "Problem solving helps close the gap between academia and practice through experiential learning. By connecting legal knowledge, theory, and skills to help clients, students develop deep learning that they can transfer to practice. In addition, numerous additional benefits exist from incorporating problem solving into the legal education curriculum. Beyond the deep learning that students develop, there are numerous soft skills that are ancillary benefits, such as professionalism, professional identity, and emotional intelligence." Problem solving also helps students foster "creativity, flexibility, good judgment, common sense, reflective learning, relationship building, and practical wisdom." It can also lead to non-legal solutions to clients' problems.

I have spent a long time on Professor Vinson’s discussion of the importance of problem solving because I believe that problem solving is vital to legal education reform. Just making a few changes on the edges of legal education is not enough. As Professor Vinson concludes "Legal education is at a tipping point, and perhaps problem solving can balance the skills-doctrine ‘ship in the stormy seas of legal education’s "perfect storm" through the help of the beacon of the client-centered ‘lighthouse.’"

(Scott Fruehwald)

P.S. While I have concentrated on Vinson’s comments on the importance of problem solving, there is much more to her article, such as what is problem solving and how to implement it in law school. The article is worth reading several times. You can find the complete article here.


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Wentworth Miller of LEEWS has been railing against the scandal of modern law school teaching for over 30 years. I'm just about to finish reading the free book, Gaming Emperor Law School, he offers on his site. It's basically a sales pitch for his LEEWS; however, it's full of blistering and cogent criticisms of the pedagogical status quo. Worth reading. It's amazing that the law school scam has continued for so long.

Posted by: Alphonsus Jr. | Jul 16, 2014 11:28:50 AM

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