Thursday, August 14, 2014
Those of us who are senior teachers often have the responsibility of advising our junior colleagues. K-12 coach Elena Aguilar offers five good tips for coaching teachers. Here are excerpts:
Active Listening When I'm working with new coaches, the absence of active listening is sometimes what stands out the most. It's the first practice I explicitly teach and one that I think has the potential to shift everything else that happens in the conversation. I've written about this already, so read this post and watch this video to explore this idea more. And then try it!
Planning a Conversation Every time I ask coaches to spend 20-30 minutes planning a conversation, they come out of it with almost visible light bulbs above their heads, with epiphanous smiles on their faces. Yes, it is that powerful of an experience. It makes you feel confident and prepared, it deepens your empathy for your client, it warms up your mental pathways so that the words have already coursed through them and are primed to come out in the moment.
Short Observations But here's the thing about observations: I think that they can be as short as 7-10 minutes, and that a short observation can provide equally useful data to what we see in a 50 minute observation. Many observers and teachers have gotten into a mindset that observations should be an entire period. Most of the time, I disagree with this. In order for a coach to gather useful data, the coach needs to be observing for a very narrow and specific instructional practice such as checking for understanding, asking higher order thinking questions, having positive interactions . . . .
One Teacher, One Goal I want to suggest that we focus on one teacher and one goal. That doesn't mean that you neglect the other 79 teachers/17 goals, it means you FOCUS on one. You plan for conversations with that one teacher, you dig deep into what it'll take to meet that one goal.
When we focus we're much more likely to be successful, to learn in the process, to inspire others to attempt change, and to see results. Our schools are often operating in ways that are in stark contrast to best practices in making change, starting with this issue of being spread to wide and thin. See what happens this year if you identify one teacher whom you want to go deep with, who you'll observe every week, and for whom you'll plan and really prepare. It might be transformational.
Attend to Your Own Professional Learning What's one aspect of coaching that you want to work on this year? Listening? Using analytical frameworks to reflect on what you heard? Trying different coaching stances? Quelling your own judgments about other? Cultivating a quiet and calm mind? Gathering data that shifts instructional practice?
Identify one thing and then create your own learning plan. What are some activities that might help you refine this practice? If you're going to focus on using different kinds of coaching sentence stems, you can audio record conversations and analyze them afterwards. If you're doing to cultivate a quiet mind, you could try practicing mindfulness meditation. If you want to focus on strategic coaching conversations, you can start planning your conversations and reflecting on them afterwards.
You can read more here.
Wednesday, August 13, 2014
Law school applicants for 2014, as of 8/8/14, fell to 54,527 representing a 6.7% decline from 2013. Those applicants submitted a total of 352,406 applications which also represents a drop of 8.2% from last year. The LSAC website has more details including two graphs that track the decline in applicants and applications, respectively, for the past three years. Overall, this represents an almost 50% decline in total law school applicants from the high water mark set in 2004 when 100,600 prospective law students applied (submitting 552,400 applications) according to the LSAC.
Many law schools are launching innovative changes in their curricula. These changes may benefit the students, and they may help a particular school attract a few more students. However, they do not seem to increase the aggregate number of students applying to law schools.
Right now, the stock market is booming, and employment numbers are increasing steadily. But jobs for lawyers are barely moving upward. Hence, young people are discouraged from pursuing legal careers.
If law schools are going to survive, they also need to train people for careers other than law—they need to train students for law-related careers. By offering more career paths, law schools will increase their pool of potential applicants. Some of these programs may be certificate programs, for example, certificates training people to be administrators in various industries, such as law-related positions in human resources and medical organizations. Trying to attract potential law students only to JD programs is a problematic strategy.
One of the legal education reforms that I have advocated is explicitly teaching miniskills, such as rule-based reasoning, analogical reasoning, and case synthesis. I think that students need to master these skills before moving on to more advanced types of legal reasoning. Studies have shown that second- and third-year law students have problems with these and other miniskills. (E.g., here)
One miniskill that is rarely taught in depth in law school is distinguishing cases. Yet, this skill is basic for competent lawyers.
A lawyer can distinguish a case based on the facts or based on the reasoning/policy (or preferably both).
In distinguishing cases, the attorney demonstrates that the facts of case A (the precedent case) are not substantially similar to the facts of case B (your case) so that the rule from case A does not apply to case B. In other words, distinguishing cases is the opposite of reasoning by analogy. With reasoning by analogy, the advocate shows that the facts of case A (the precedent case) are substantially similar to the facts of case B (your case) so that the rule of case A applies to case B.
Distinguishing cases involves distinctions of degree so the lawyer must make the dissimilarities convincing. The opposing attorney will try to argue that the cases are similar enough for the rules to apply to both.
Judge Aldisert has developed criteria to test analogies:
* The acceptability of the analogy varies proportionally with the number of correlates that have been identified.
* The acceptability of the analogy depends on the number of positive resembles (similarities) and negative resemblances (dissimilarities).
* The acceptability of the analogy is influenced by the relevance of the purported analogies. An argument based on a single relevant analogy with a single instance will be more cogent than one which points out a dozen irrelevant resemblances. (Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 280 (Nat. Instit. Trial Advoc. 1996))
This test can be modified to apply to distinguishing cases: in making an attempt to distinguish a case convincing, find as many relevant distinguishing features as possible and compare the relevant differences with the relevant similarities.
An advocate can also distinguish cases based on the reasoning or policy of the cases. Case A (the precedent case) is distinguishable from case B because the policy (or the reasoning) behind case A is different than the policy (or the reasoning) of case B so the rule from case A does not apply to case B.
For more on distinguishing cases, including examples and exercises, see E. Scott Fruehwald, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals 186-96 (ABA Publishing 2013)
Tuesday, August 12, 2014
On Monday the ABA House of Delegates approved changes to the law school accreditation standards that, among other provisions, require students to take at least six hours of clinical coursework or other "experiential" learning opportunities. In addition, the new standards encourage students to engage in substantial pro bono work (see this story - here, here and here - about the New York State Bar Association rule mandating pro bono service for bar applicants) and remove the 20 hour per week limitation on student employment outside of school. The National Law Journal and ABA Journal Blog have more details here and here, respectively. Here's an excerpt from the former:
The American Bar Association’s governing body on Monday endorsed an extensive package of law school reforms designed to increase students’ clinical and distance-learning opportunities.
Standards for law schools would require students to take a minimum of six hours in a legal clinic or other “experiential” environment; encourage 50 hours of pro bono service; and allow students to take up to 15 credit hours of distance courses, up from 12. Students won’t be limited to 20 hours of outside work per week anymore.
To protect accreditation, law schools would have to shift toward assessments that focus on student outcomes—including bar-exam results and employment—rather than qualifications of incoming students or other factors.
“J.D. programs will remain a rigorous study of the law,” former Arizona Supreme Court Justice Ruth McGregor assured the ABA House of Delegates, which voted on the reforms during the ABA's annual meeting in Boston. “It will basically remain a three-year program.”
. . . .
Continue reading here.
I think students have long since tired of traditional powerpoint. If you are going to throw information up on the screen, go for pictures. At the Huffington Post, Nadine Hanafi,CEO of “We Are Visual,” explains why. It has to do with our cognitive limitations.
Q: Why are images more effective than bullet points?
A: The bullet point style of presentation simply doesn't align with our cognitive abilities and ignores what we know about how our brains work. Our brains are not capable of processing two streams of verbal information at the same time. So if you are speaking to your audience while showing them text on a slide, they must make a decision to either ignore your slides and listen to you or listen to you and ignore your slides. Either way, your slides become a distraction rather than a tool to emphasize and support what you are saying. On the other hand, we are perfectly capable of processing visual and verbal information simultaneously. So if a presenter is speaking and showing an image at the same time, it takes the audience a split second to take in and process the image while focusing on the presenter's words.
You can read more here.
The Task Force on the Financing of Legal Education held its first meeting last weekend. (here) The task force's purpose is to "gather information, data, and a wide set of views related to its charge. Overall, the Task Force aims to understand (a) the principal cost drivers of legal education and costs might be contained; and (b) the key mechanisms used by students and law schools to cover those costs." (here) "Beginning with the public hearing, the task force is delving into how law schools use merit scholarships, tuition discounts and need-based financial aid." (here)
Among the issues discussed at the meeting were
1. How federal student loan reform has affected law school tuition. Kyle McEntee "asked the task force to seek congressional action to stop what he considers the biggest problem: readily available student loans. 'Schools have a blank check for basically bringing in as many people as they can and charging them as much as they can,' McEntee said."
2. "[I]ncreasing law school tuition and skyrocketing debt, and specifically the impact that that has not only on an individual's ability to attend law school, but ultimately on the ability of law graduates to serve moderate- to low-income communities." Bucky Askew declared, "In terms of access to justice, there will be a terrible problem if we don't produce lawyers who will be able to serve communities in need." He continued, "I would say we're not over-lawyered here, we're under-lawyered."
3. How "decreases in state support of public law schools; a overall lowering of student/faculty ratios; and the resulting increase in the number of tenure-track and adjunct faculty" have affected law school tuition.
4. Dean Nicholas Allred attacked law school's dependence on rankings. Allard proposed "there be more open discussion and criticism of rankings. He also suggest[ed] law schools cut tuition, shifting ballooning scholarship budgets to tuition reductions so there's a 'scholarship to everybody.'"
Among these issues, the one that bothers the most is that many (most?) law schools are using merit scholarships funded by lower ranked students to move up in the U.S. News rankings. These are the students who will be taking the jobs helping the poor and middle class, but they will be unable to do so because of the large amount of debt they incurred in law school. I believe that law schools should have no merit scholarships that are funded by the tuition of other students.
Monday, August 11, 2014
New York State Bar Association issues social media guidelines to help lawyers navigate ethical issues
The Social Media Committee of the Federal and Commercial Litigation Section of the New York Bar Association has issued guidelines to help lawyers navigate the ethical issues raised by social media use to advertise services (see California ethics opinion warning social media "boasting" can be considered "solicitation), offer legal advice and gather information about prospective jurors among other concerns (see New York ethics opinion holding OK for lawyers to use social media to research jurors within limits). For those interested in incorporating some real-life professional ethics issues into your classroom simulations and assignments, these guidelines provide an excellent source of ideas for some of the questions our students will face when they enter practice. You can access the full report from the NYSBA Social Media Committee here. In the meantime, here is an excerpt from the introduction as well as some specific bullet point items the committee addressed.
Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association
Social media networks such as LinkedIn, Twitter and Facebook are becoming indispensable tools used by legal professionals and those with whom they communicate. Particularly, in conjunction with the expansion of mobile technologies in the legal profession, social media platforms have transformed the ways in which lawyers communicate. As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more technologically advanced, so too do the ethical issues facing lawyers. Accordingly, the Commercial and Federal Litigation Section of the New York State Bar Association developed these social media ethics guidelines (the “Guidelines”) to assist lawyers in understanding the ethical challenges of social media.
. . . .
Lawyers need to appreciate that social media communications that reach across multiple jurisdictions may implicate other states’ ethics rules. Lawyers should ensure compliance with the ethical requirements of each jurisdiction in which they practice, which may vary considerably. Lawyers must be conversant with the nuances of each social media network the lawyer or his or her client may use. This is a serious challenge that lawyers must appreciate and cannot take lightly.
Guideline No. 1.A - Applicability of Advertising Rules
A lawyer’s social media profile that is used only for personal purposes (i.e., to maintain contact with friends and family) is not subject to attorney advertising and solicitation rules. However, a social media profile that a lawyer primarily uses for the purpose of her and her law firm’s business is subject to such rules.
Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media.
Lawyers and law firms shall not advertise areas of practice under headings in social media platforms that include the terms “specialist,” unless the lawyer is certified by the appropriate accrediting body in the particular area.
Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content
When inviting others to view a lawyer’s social media network, account, or profile, a lawyer must be mindful of the traditional ethical restrictions relating to solicitation and the recommendations of lawyers. A lawyer is responsible for all content that the lawyer posts on her social media website or profile
. . . .
A lawyer has a duty to monitor her social media profile, as well as blogs, for comments and recommendations to ensure compliance with ethics rules.
Guideline No. 2.A: Provision of General Information
A lawyer may provide general answers to legal questions asked on social media. A lawyer, however, cannot provide specific legal advice on a social media network because a lawyer’s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.
Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications
Due to the “live” nature of real-time or interactive computer-accessed communications, which includes, among other things, instant messaging and communications transmitted through a chat room, a lawyer may not “solicit” business from the public through such means.
Guideline No. 3.A: Viewing a Public Portion of a Social Media Website
A lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer. However, the lawyer must be aware that certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person.
Guideline No. 3.B: Contacting an Unrepresented Party to View a Restricted Portion of a Social Media Website
A lawyer may request permission to view the restricted portion of an unrepresented person’s social media website or profile. However, the lawyer must use her full name and an accurate profile, and she may not create a different or false profile in order to mask her identity.
Guideline No. 3.C: Viewing A Represented Party’s Restricted Social Media Website
A lawyer shall not contact a represented person to seek to review the restricted portion of the person’s social media profile unless an express authorization has been furnished by such person.
Guideline No. 4.A: Removing Existing Social Media Information
A lawyer may advise a client as to what content may be maintained or made private on her social media account, as well as to what content may be “taken down” or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information.
Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.
. . . .
Guideline No. 5.A: Lawyers May Conduct Social Media Research
A lawyer may research a prospective or sitting juror’s public social media website, account, profile, and posts.
Guideline No. 5.B: A Juror’s Social Media Website, Profile, or Posts May Be Viewed As Long As There Is No Communication with the Juror
A lawyer may view the social media website, profile, or posts of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror.
Guideline No. 5.C: Deceit Shall Not Be Used to View a Juror’s Social Media Profile
A lawyer may not make misrepresentations or engage in deceit in order to be able to view the social media, account, profile, or posts of a prospective juror or sitting juror, nor may a lawyer direct others to do so.
Guideline No. 5.D: Juror Contact During Trial
After a juror has been sworn and until a trial is completed, a lawyer may view or monitor the social media profile or posts of a juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror.
. . . .
You can continue reading the full report here.
Hat tip to the ABA Section on Litigation Newsletter.
Classical Honour Moderations, the tests which second-year classicists face in Hilary of second year, are widely known as some of the most gruelling examinations in Oxford. Yet this year, for the first time, Mods will take place over ten days, rather than the usual eight. The change in the exam format may spell the end of Mods’ reputation as the hardest set of exams in the world.
Candidates will sit between 10 and 11 papers in the period spanning Monday of 7th week to Friday of 8th, with a break over the weekend, rather than between Wednesday of 7th and Wednesday of 8th with a Saturday exam, as in previous years.
Pure foolishness. You can read more here. I don’t know what law exams are like at Oxford, although I do know the saying: If you want to know what American law schools were like in the 1950s, go to Oxford.
Sunday, August 10, 2014
Grover Cleveland, author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer and a favorite of this blog (here and here), has posted some timely tips over at The Careerist Blog for those second and third year law students looking for advice on how to shine brightest in job interviews during this fall's OCI season.
- Own the room.
- Ask strategic questions.
- Don't ask about quality of life.
- Develop key messages.
- Listen closely to each question.
- Be memorable.
- Manage anxiety.
The ABA continues to say yes. However, the reliance on standardized tests is decreasing at the undergraduate level. Recently, both Temple University and Monclair State (N.J.) have made the SAT and ACT tests optional.
Montclair’s president, Dr. Susan Cole notes that university has found that a student’s high school GPA is three times as powerful as the SAT for demonstrating a student’s likely performance at Montclair State, She also argues that that standardized tests can have the undesirable effect of disadvantaging capable, striving students from middle and lower socio-economic backgrounds, many of whom do not have the benefit of costly preparation courses.
You can read more here At Temple:
Students who opt not to submit test scores will have to answer written questions designed to assess attributes such as leadership, self-awareness, goal-setting, determination, and "grit," Temple officials said.
This year, a study released by the National Association of College Admission Counseling found almost no difference in college GPAs and graduation rates between students who submitted SAT scores and those who did not at colleges where scores are optional.
You can read more here.
In the Philadelphia region, Bryn Mawr and St. Joseph’s University have already adopted similar policies, as has DePaul in Chicago.
I do not know of any relevant longitudinal studies looking at college GPAs, LSAT scores, College GPAs, and law school success, but I suspect they would find college GPAs to be the best predictors of law school success.
Saturday, August 9, 2014
Bonnie Blair (Creighton) has written an article on identifying and addressing the mental health needs of online students. It is easy to see the difficulties of reaching out to an online student as well as the ways that a trouble student can ruin an online discussion. Here is an abbreviated summary of the steps she recommends for addressing the issue:
- Pre-enrollment services: On the web-pages describing online programs and courses, self-assessment tools can be posted for students to evaluate their readiness for online programs. This "front-end" focus on the personality characteristics and work habits necessary for online academic success can possibly assist in preventing problems after admission and enrollment
- Mental Health Education: Provide links to articles on issues common to college students (e.g. stress, fatigue, depression, anxiety, eating disorders, substance abuse)
- Crisis Services: Prominently display phone numbers for crisis and/or suicide hotlines (See Appendix).
- Self-help Services: Provide access to tools for self-evaluation, with accompanying articles on strategies for coping with common mental health issues.
- Referral to disability services: Provide links to the institution's office for students with disabilities.
- Counseling services: Provide links to the campus counseling center and clearly state what services are/are not available to distance students.
You can read the full article here.
Friday, August 8, 2014
“The Economist” Compares Higher Education with Newspapers
In a recent issue of “The Economist,” the writer sees a bleak future for most of higher education and makes a comparison with the newspaper industry:
Were the market for higher education to perform in future as that for newspapers has done over the past decade or two, universities’ revenues would fall by more than half, employment in the industry would drop by nearly 30% and more than 700 institutions would shut their doors. The rest would need to reinvent themselves to survive.
You can read the full article here.
Thursday, August 7, 2014
The ABA House of Delegates is presently considering "sweeping reforms" to law school accreditation standards including a new focus on student learning outcomes and assessments. In this manuscript recently posted on SSRN entitled Achieving the American Bar Association's Pedagogy Mandate: Empowerment in the Midst of a Perfect Storm, Professor Cara Cunningham Warren (Detroit) discusses ways law professors schools can achieve this new "pedagogical mandate" based on a teaching effectiveness framework established by the National Research Council of the National Academies. From the abstract:
Ironically, successful implementation remains an open question, in part because of the traditional nature of the academy and its resistance to change, and in part because law schools may be ill-equipped to respond as a result of the crisis.
This article seeks to change the dynamic. It begins by putting the 2014 Standards into historical context and explaining their impact on legal education. The author then moves to discuss full achievement of the mandate. First, law schools are encouraged to overcome their resistance to pedagogical innovation and to embrace the mandate and its benefits.
At the same time, this article seeks to empower law professors to be a driving force for change. More specifically, under the ABA’s new “outcomes” approach, professors are expected to create meaningful learning opportunities for students and to assess and improve the effectiveness of those experiences. To assist law professors in this regard, the author introduces a teaching effectiveness framework that was created by experts in education from the National Research Council of the National Academies and adapts it for use in legal education.
The legal community has relied on the NRC’s expertise for decades, in a wide range of fields, but the author believes this is the first time NRC expertise has been brought to bear in this context. The NRC is credited for its ability to bring the legal and scientific communities together and to make scientific theories accessible. In this way, the framework is a useful tool for law professors, especially those who are trained attorneys rather than certified educators, and improves the current state of our pedagogy scholarship by placing existing assessment and learning outcomes work in the broader context of modern learning theory and instructional design.
Shared Visions of Design and Law in Professional Education by Cody Thornton.
The academy has long considered adapting other professions’ programs, such as medicine and business, but these changes would require a fundamental restructuring of legal academia, and perhaps part of the legal profession itself. The design professions, however, offer a more evolutionary option.
This article reintroduces the legal academy to the learning environment of professional designers: the contemporary studio. Studio courses could provide the balance of theory and practice that the academy and the profession now seek.
Law and design share creative problem-solving methods. Urban planners, landscape architects, engineers, architects, industrial designers, and lawyers all have the power to liberate people and to intervene in systemic problems by removing barriers and shifting resources. Yet the professions teach their crafts in vastly different ways.
The intensive and powerful studio environment teaches students to create and communicate solutions to complex problems. The primary value of a legal studio would be to release students’ creativity within both the practical and the theoretical realms. The studio inherently fosters almost all of the core lawyering skills and should appeal to social justice activists as much as transactional gurus; a studio could, in fact, ask students to engage in both conversations.
For law schools that want to engage students in self-exploration and creativity in a safe zone before they step into a world of obstacles, the studio is an excellent option. Conceptually, the “legal studio” approach would fall between a clinic and a seminar, with elements of simulations, skills courses, and other teaching variations. The method would allow students to explore, without harm to clients or the students’ own careers. In this setting, professors and students could work together to expand scholarship, to reconnect practicing lawyers to law schools, to practice on an academic schedule (not that of the courts), and to help fund the education received.
The media has widely reported that Senator Walsh plagiarized much of his Master’s thesis at the prestigious Army War College. It has not focused on one curious fact—the thesis was all of 14 pages long. This shockingly short length suggests that Senator Walsh and his fellow students viewed the assignment as inconsequential and did not take it seriously—hence the temptation to plagiarize. It also may have decreased their respect for the course of study and the institution.
The episode supports one of my explanations for much of academic dishonesty, at least at the graduate and professional school level: The temptation to plagiarize grows strong when the student lacks respect for the assignment or for the professor. Giving makeweight assignments and acquiescing to disrespect encourages students to disregard their ethical sensibilities.
For an interesting take on this this incident, see Professor David Perry’s blog, “How Did We Get Into This Mess?” (here).
Wednesday, August 6, 2014
Back in 2008, the U.S. Patent and Trademark Office began a law student clinical program that provided students from six participating law schools with valuable externship experience. This summer, the USPTO expanded the program to include nineteen more schools bringing the total participating institutions to forty-five. Apparently there's a boom in patent work going on at the moment that's opened up some great opportunities for law students to get valuable practical experience with the patent office. The Wall Street Journal Law Blog has more details:
. . . .
This summer the U.S. Patent and Trademark Office expanded its legal clinic programs—where supervised students practice intellectual property law before the USPTO—to include another 19 law schools, or 45 in all.
“Some of the schools just get flooded with requests for clients,” Will Covey, a USPTO deputy counsel, told Law Blog this week. “It gets the independent inventors the assistance they need… and students get to deal with real clients.”
Most students end up drafting and filing trademark and patent applications on behalf of inventors and small business owners who could not otherwise afford legal help. Law schools can participate in the patent or the trademark program; some do both (two of the “new” schools joining this year already participate in one or the other).
The program was set up in 2008, when six law schools participated, and accelerated after the 2011 passage of the America Invents Act, which encourage the development of pro bono programs.
Mr. Covey said it’s popular among students looking to improve their post-graduate employment prospects.
“Students contact me and say, ‘Hey, how come my school’s not in it?’” he said. “I’m hearing from the law schools that they will have three or four applications for every seat they have in the clinic.”
To make the cut for the program, a law school must have a strong IP curriculum and the ability to serve pro bono clients, as well as some sort of case management system to ensure no deadlines are missed.
. . . .
Continue reading here.